IN THE CIRCUIT COURT OF THE THIRTEENTH

JUDICIAL CIRCUIT IN AND FOR

HILLSBOROUGH COUNTY, FLORIDA

CIVIL DIVISION

US BANK NATIONAL ASSOCIATION,

AS TRUSTEE FOR THE STRUCTURED
ASSET INVESTMENT LOAN TRUST, 2006-BNC3

v. CASE NO. 08-CA-022076

DIVISION: C

THOMAS W. CUTLER, ET AL.

DEFENDANT(S).
_________________________________________/

DEFENDANTS’ MOTION TO DISSMISS THIS CAUSE OF ACTION

FOR LACK OF STANDING AND LACK OF IN REM , OR SUBJECT MATTER JURISDICTION;
LACK OF IN PERSONAM OR PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION
FOR MORE DEFINITE STATEMENT

COMES NOW, the Defendant, Thomas W. Cutler, by and through his undersigned attorney,
and files this motion to dismiss the above styled cause of action for lack of standing and failure
to state a cause of upon which relief may be granted and for lack of jurisdiction, both in
personam and in rem, and possible fraud on the court and would state:

1. The Florida Supreme Court has decreed that the "determination of standing to sue concerns a
court's exercise of [subject matter] jurisdiction to hear and decide the cause pled by the parties."
Rogers & Ford. Constr. Corp. v. Carlandia Corp., 626 So.2d 1350, 1352 (Fla.1993).

2. The Florida First District Court of Appeals has held that “This court has the right and the
obligation to remand a cause for dismissal where the party seeking relief did not have the initial
right to institute the suit, even though the defending party did not notice the defect.” Grand
Dunes, Ltd. v. Walton County, 714 So.2d 473, 475 (Fla. App. 1 Dist., 1998) (citing Guernsey v.
Haley, 107 So.2d 184, 186 (Fla. 2d DCA 1958) and Polk County v. Sofka, 702 So.2d 1243, 1245
(Fla.1997).)

3. The jurisdictional question can be raised at any time and can never be time-barred. DeClaire
v. Yohanan, 453 So. 2d 375 (Fla. 1984).
4. “Standing has been equated with jurisdiction of the subject matter of litigation and has been
held subject to the same rules, one of which is that jurisdiction of the subject matter (thus
standing to bring suit) cannot be conferred by consent.” Askew v. Hold the Bulkhead Save Our
Bays, Inc., 269 So.2d 696,698 (Fla. 2d DCA 1972); (See also Silver Star Citizen's Committee v. City
Council of Orlando, 194 So.2d 681, 682 (Fla.4th DCA1967).)

5. Standing requires that the party prosecuting the action have a sufficient stake in the outcome
of the cause of action and that the party bringing the claim be recognized in the law as being a
real party in interest entitled to bring the claim.

6. This entitlement to prosecute a claim in Florida courts rests exclusively in those persons
ranted by substantive law the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et
al, 462 So. 2d 1178, (Fla. 3d DCA 1985).

7. Florida Rule of Civil Procedure 1.210(a) provides, in pertinent part:

Every action may be prosecuted in the name of the real party in interest, but a
personal representative, administrator, guardian, trustee of an express trust, a
party with whom or in whose name a contract has been made for the benefit of
another, or a party expressly authorized by statute may sue in that person’s own
name without joining the party for whose benefit the action is brought… (See
also 37 Fla. Jur. Mortgages and Deeds of Trust ‘240) (One who does not have the
ownership, possession, or the right to possession of the mortgage and the
obligation secured by it, may not foreclose the mortgage).

8. In BAC Funding Consortium Inc. v. Jean-Jacques, 28 So.3d 936, 938 (Fla.2nd DCA, 2010) the
Court stated “ The proper party with standing to foreclose a note and/or mortgage is the holder
of the note and mortgage or the holder's representative. See Mortgage Elec. Registration Sys.,
Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So.2d 394, 395-96
(Fla. 2d DCA1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So.2d 45, 46 (Fla.
4th DCA 2006) .

9. However, when exhibits are inconsistent with Plaintiff’s allegations of material fact as to who
the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County
Canvassing Board, 772 So.2d 1240 (Fla.2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d
185, 187 (Fla. 4th DCA1983); Costa Bella Development Corp. v. Costa Development Corp., 441
So. 2d1114 (Fla. 3rd DCA 1983).
10. Here, the mortgage attached to the complaint indicates that an entity other than the Plaintiff
is the mortgagee. The allegations cancel each other out, and no cause of action is plead on behalf
of an entity that has a stake in the outcome of the lawsuit . No cause of action is plead by a party
plaintiff that has any stake in the outcome of this cause of action. The plaintiff is not the real
party in interest, or has filed a pleading that is so multifarious that is is completely unclear who
the plaintiff is.
11. When exhibits are attached to a complaint, the contents of the exhibits control over the
allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401
(Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits attached to the
complaint,the plain meaning of the exhibits control[s] and may be the basis for amotion to
dismiss."); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA
2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So.2d 736, 736-37 (Fla. 3d DCA 1971)
(holding that when there is an inconsistency between the allegations of material fact in a
complaint and attachments to the complaint, the differing allegations "have the effect of
neutralizing each allegation as against the other, thus rendering the pleading objectionable").

12. Because the exhibits attached to Plaintiff’s complaint (i.e. the Note attached to the complaint
shows that BNC Mortgage, INC. A DELAWARE CORPORATION is the “lender”; The
Mortgage attached to the complaint indicates that “MERS is a separate corporation that is acting
solely as a nominee for Lender and Lender’s successors and assigns” and the “MERS is the
Mortgagee under this security agreement”) and Plaintiff’s complaint alleges that Plaintiff “is the
owner and holder” of the Promissory Note and Mortgage, Plaintiff does not show unto this
Honorable Court in its pleadings that is has a substantial interest in the outcome of the
litigation, or that it is the real party in interest, or that it has standing to foreclose the mortgage
in this cause of action. Plaintiff has not established its entitlement to foreclose the mortgage in
this cause of action, as a matter of law.

13. At the time of the commencement of this cause of action (2008), the named Plaintiff had no
interest whatsoever in this cause of action and was not the real party in interest with any stake
in the outcome of this cause of action. In 2008 the Plaintiff did not hold the promissory note that
is the subject of this cause of action, and the Plaintiff had no interest in the mortgage attached to
the pleading that was filed in this cause Septembe 23, 2010.

14. A purported Assignment of Mortgage was executed January 26, 2010 and filed in
Hillsborough County March 11, 2010. The lawsuit was commenced in 2008 by a law firm other
than The Law Offices of David L. Stern.

15. The Law Offices of David J. Stern is currently under investigation by the Florida Attorney
General for the fraudulent creation of after the fact Assignments of Mortgages, Fraudulent
creation of Mortgage instruments, Promissory Notes and Affidavits.

16. The sequence of events as evidenced by the documents filed in this cause of action raise the
real specter of fraud on the court and a possible civil and/or criminal RICO action against The
Law Offices of David J. Stern.

17. Recent cases from United States Bankruptcy Courts in California, Oregeon, Ohio, The
Arkansas Supreme Court, The Nebraska Supreme Court, The Supreme Court of Kansas and The
Supreme Court of Maine have ruled that
 “the relationship of MERS to the lender was more akin to a straw man than to a
party possessing all the rights given to a buyer” , citing the quotation from the
Landmark v. Kesler case from the Supreme Court of Kansas, and ultimately
concluded that ”It is apparent that the listing of MERS as a beneficiary in the
deed of trust is merely to facilitate its ownership tracking function. It is not in
any real sense of the word, particularly defined in ORS 86.705(1), As such, the
Oregon Federal Court has joined the ever-growing ranks of those courts which
have truly examined the inconsistent claims and self-appointed titles of MERS in
Deeds of Trust and has concluded, as have the state courts of Kansas, Nebraksa,
Arkansas and others and the Bankruptcy Court of Nevada, that MERS is not,
never was, and cannot be a ‘beneficiary’.”

Thus, as MERS is not a “beneficiary” by statute, every purported assignment of a Deed of Trust
or Substitution of Trustee in Oregon by MERS claiming to be the “nominee” or “beneficiary” is
now suspect and should be challenged based on the holding of this extremely important and
well-reasoned decision.

18. MERS is listed as the Assignor in the Assignment of Mortgage recorded in Tampa, Florida
March 11, 2010, nearly two years after the filing of the instant cause of action. One wonders why
a law firm would file a lawsuit and nearly two years later, after substitution law firns, the latter
firm would file documents created after the filing of the suit that would tend to prove the facts
and allegations necessary to be successful in the cause of action.

WHEREFORE, because the Plaintiff’s complaint is fatally defective, multifarious, and alleges
facts plead in the complaint that are inconsistent with the exhibits attached to the complaint, the
Plaintiff lacks standing , as a matter of law, to maintain this cause of action , this Honorable
Court lacks subject matter over this cause of action, the Complaint contains documents created
almost two years after the filing of the instant cause of action that did not exist at the time of the
filing of the lawsuit, and those documents appear to have been created for the purpose of
proving the facts necessary to succeed in the lawsuit, the complaint must be dismissed for
failure to state a cause of action upon which relief may be granted and for lack of subject matter
and personal jurisdiction, and all of the other reasons set forth in this motion to dismiss.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion to Dismiss was mailed on
this the ____ day of _________, 2010 to The Law Offices of David J. Stern, 900 South Pine Island
Road, Suite 400, Plantation Florida 33324-3920.