IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT, IN AND FOR

DUVAL COUNTY, FLORIDA

CASE NUMBER: 16-2006-CA-002265-XXXX-MA

Div. CV-D

HSBC BANK USA, NATIONAL ASSOCIATION,

AS TRUSTEE FOR HOME EQUITY LOAN
TRUST SERIES AE 2005-HE5,
Plaintiff,
vs.

MARILYN G. HARLEY, et al.,

Defendant.
_____________________________________/

DEFENDANT’S MOTION TO DISMISS ACTION FOR FRAUD ON THE COURT

(Supplement to Motion to Dismiss First Amended Complaint)

Defendant requests the court dismiss this action with prejudice pursuant to Rules
1.100(b), 1.140(b)(1)(6) and (h)(2) and 1.210(a) of the Florida Rules of Civil Procedure
and states:
1. The January 30, 2006 assignment of mortgage that is attached to the
plaintiff’s amended complaint states that the assignment is of the mortgage and the
promissory note that are the subject of this foreclosure action, although the plaintiff has
failed to attach a copy of the promissory note to its amended complaint or to otherwise
identify how Mortgage Electronic Registration Systems, Inc. (“MERS”) had any right or
legal ability to transfer any interest in the subject promissory note.
2. Additionally, the January 30, 2006 assignment attached to the plaintiff’s
amended complaint purportedly assigns the mortgage and the promissory note from
MERS in its corporate capacity as owner and not “as nominee” which is how MERS is
named in the mortgage also attached to the plaintiff’s amended complaint. The plaintiff
alleges in its amended complaint that the plaintiff owns and holds the subject note and
mortgage, but the purported assignment of the mortgage and note from “Mortgage
Electronic Registration Systems, Inc. is in “c/o Wells Fargo Bank, N.A.” while the actual
mortgage attached to the complaint identifies the owner of the mortgage as “Trimerica
Mortgage Corporation dba Avaris Capital”, with MERS as a nominee for said lender.
No where does MERS c/o Wells Fargo Bank, N.A. appear in the mortgage and
therefore the mortgage contradicts the assignment and the plaintiff’s allegations to this
court.
3. At the same time, in its amended complaint, the plaintiff claims and alleges to
this court that the “Plaintiff owns and holds the Note and Mortgage”; that the “plaintiff is
not presently in possession of the original note and mortgage”.
4. The plaintiff also fails to attach a copy of the promissory note to its amended
complaint.
5. From the plaintiff’s own filings in this foreclosure action, including the
amended complaint, it is established that a person other than the plaintiff, a securitized
trust, is the true owner of the claim sued upon and that the plaintiff is not and never was
the real party in interest and is not and cannot be shown to be the proper authorized
party to bring this foreclosure action. In re: Shelter Development Group, Inc., 50 B.R.
588 (Bankr.S.D.Fla. 1985)
6. The plaintiff did not own or hold the subject promissory note at the time the
plaintiff filed this foreclosure and the plaintiff was fully aware of this lack of this lack of
ownership and its lack of standing at the time of the commencement of this action.
7. The plaintiff did not own or hold the subject mortgage at the time the plaintiff
filed this foreclosure and the plaintiff was fully aware of this lack of this lack of
ownership and its lack of standing at the time of the commencement of this action.
8. The plaintiff further has failed to establish in any of its papers or filings that it
owned or held the mortgage or the promissory note at the commencement of this
action.
9. Unlike statutory prerequisites to filing a lawsuit, standing is having a sufficient
interest in the outcome of litigation which will warrant a court’s entertaining it.
10. The plaintiff, a securitized trust, never had an interest in the mortgage or the
promissory note and never had standing to bring this action.
11. In this case the court is without jurisdiction because the Plaintiff, a
securitized trust, has perpetrated a fraud upon the Court in this action as set out in the
defendant’s first motion to dismiss which is incorporated herein and included within this
motion.
12. The defendant seeks an order dismissing this foreclosure action filed by a
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 securitized trust based on a lack of standing; a lack of subject matter jurisdiction;
failure to state a cause of action for foreclosure and for fraud on the court.
13. The defendant seeks a finding that the plaintiff’s assertions that it was the
owner of the mortgage and the promissory note at issue were false and that the
plaintiff was fully aware of such false allegations at the time the plaintiff filed this
foreclosure action.
14. The plaintiff is not the ‘owner’ of the subject mortgage or the promissory note
as the plaintiff alleges to this court in its amended complaint.
15. The plaintiff’s allegations that it ‘owned’ ‘held’ and ‘possessed’ the mortgage
and the promissory note that are the contracts that are the subject of this
foreclosure action are false and were made in bad faith as the plaintiff knew said
allegations were false.
16. The falseness of the plaintiff’s allegations that it owned, held and possessed
the subject mortgage and promissory note is readily apparent from a cursory review
of the documents attached to the amended complaint as explained hereinabove in
paragraph 1 and 2 of this motion.

17. The plaintiff is not a proper party to file a lawsuit to collect on the mortgage and
the promissory note in this case where the plaintiff has no legal or beneficial
interest to protect.
18. The assignment of the mortgage and the note from MERS that purports to
transfer the mortgage and the note is from MERS in its sole capacity as an
independent corporation and fails to identify that MERS is transferring the interest
in the subject mortgage loan from any other corporation or entity other than MERS.
19. The plaintiff, a securitized trust, establishes in its amended complaint that it
was fully aware that its claims to have standing to pursue this foreclosure action were
untrue and an impossibility at the time the plaintiff made such allegations to this court.
Rhea v. Halkney, 157 So. 190, 193 (Fla. 1934)

20. “A plea is considered ‘sham’ when it is palpably or inherently false, and from
the plain or conceded facts in the case, must have been known to the party
interposing it to be untrue.” Rhea v. Halkney, 157 So. 190, 193 (Fla. 1934);
3
 O'Berry v. Pearson, 186 So. 430 (1939); Furst v. Blackman, 744 So.2d 1222 (Fla.
4th DCA 1999), Reif Development, Inc. v. Wachovia Mortg. Co., 340 So.2d 1267
(Fla. 4th DCA 1976)
21. The integrity of the civil litigation process depends on the truthful disclosure of
facts. Metropolitan Dade County v. Martinson, 736 So.2d 794 (Fla. 3rd DCA 1999),
Andrews v. Palmas De Majorca Condo, 898 So.2d 1066 Fla. 5th DCA 2005)
22. A trial court has the inherent authority, within the exercise of sound judicial
discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the
court. Arzuman v. Saud, 843 So.2d 950 (Fla. 4th DCA 2003), Piunno v. R. F.
Concrete Constr., Inc., 904 So. 2d 658 (Fla. 4th DCA 2005)
23. A party guilty of fraud or misconduct in the prosecution of a civil proceeding
should not be permitted to continue to employ the judiciary to achieve its ends.
Andrews v. Palmas De Majorca Condominium, 898 So.2d 1066 (Fla. 5th DCA
2005)
24. The plaintiff’s lack of ownership of the mortgage and the promissory note in this
case goes to the heart of its claim of standing, permeates the entire proceeding and
subverts the integrity of the action. Metropolitan Dade County v. Martinsen, 736
So.2d 794 (Fla. 3rd DCA 1999)
25. The plaintiff’s efforts to misrepresent ownership of the note is a mere pretense
set up in bad faith and without color of fact. Reif Development, Inc. v. Wachovia,
supra. and Furst v. Blackman, supra.
26. It is appropriate for the trial court to dismiss an action based on fraud, where
there is a blatant showing of fraud, pretense, collusion, or other similar wrongdoing.
Distefano v. State Farm Mutual Automobile Ins. Co., 846 So. 2d 572, 574 (Fla. 1st
DCA 2003)
27. Rule 1.210(a) of the Florida Rules of Civil Procedure 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...
4
The plaintiff meets none of these standing and pleading criteria.
28. Standing requires that the party prosecuting the action have a sufficient stake
in the outcome and that the party bringing the claim be recognized in the law as
being a real party in interest entitled to bring the claim. This entitlement to
prosecute a claim in Florida courts rests exclusively in those persons granted by
substantive law, the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd,
et al, 462 So. 2d 1178, (Fla. 3d DCA1985)

29. No Florida case holds that a separate entity can maintain suit on a note
payable to another entity unless the requirements of Rule 1.210(a) of the Florida
Rules of Civil Procedure and applicable Florida law are met. Corcoran v. Brody,
347 So. 2d 689 (Fl. 4th DCA 1977)
30. “The determination of standing to sue concerns a court’s exercise of
jurisdiction to hear and decide the cause pled by a particular party.” Rogers & Ford
Constr. Corp. v. Carlandia Corp., 626 So.2d 1350,1352 (Fla. 1993)
31. Defendant seeks a dismissal of the plaintiff’s complaint on the basis of fraud
on the court and under the circumstances of this case, “a formal evidentiary hearing on
this motion to dismiss, as well as permissible discovery prior to the hearing, is required.”
Dynasty Express Corporation v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996)
32. Recent decisions of many courts around the country from state courts,
federal district courts and bankruptcy courts have caused actions such as the present
action to be dismissed for failure to state a claim and for failure to assert an injury in
fact. Copies of these court orders, to date, will be presented to and filed with the court
and are incorporated herein.
33. The plaintiff cannot in good faith deny knowledge of the judicial findings of
these many courts around the country which relate directly to the underlying standing
problem that the plaintiff has in this case.

34. The plaintiff is fully aware that MERS claims that it never owns promissory
notes as MERS stated in the case of Mortgage Electronic Registration Systems, Inc. v.
Nebraska Department of Banking, where MERS pronounced that “it does not acquire
5
mortgage loans …because it only holds legal title to members’ mortgages in a nominee
capacity… and that it does not own the promissory notes secured by the mortgages
and has no right to payments made on the notes. MERS explained in the Nebraska
case that it merely ‘immobilizes the mortgage lien while transfers of the promissory
notes and servicing rights continue to occur.’” Mortgage Elec. Registration Sys., Inc. v.
Nebraska Department of Banking, 704 N.W.2d 784, 787 (Neb. 2005).
35. In addition, “counsel for MERS explained that MERS … merely tracks the
ownership of the lien and is paid for its services through membership fees charged to
its members.” Id.
36. As a result, in the instant case, the plaintiff knew and was fully aware that it
was asserting a right to foreclose as if it was the owner and holder of subject mortgage
and promissory note when the plaintiff knew that such right did not exist and the plaintiff
further knew that it was not the owner or the holder of the subject mortgage note at the
time the plaintiff filed its amended complaint herein alleging that it owns and holds and
possesses the subject promissory note and mortgage. These allegations are utterly
false and were know by plaintiff to be false at the time the plaintiff filed this action.
37. In Florida, the prosecution of a foreclosure action is by the owner of the
mortgage and the holder of the promissory note.
38. It is clear from the mortgage and the assignment attached to the plaintiff’s
amended complaint that a person other than the Plaintiff is the true owner of the claim
sued upon and that the Plaintiff is not the real party in interest and is not shown to be
authorized to bring this action.
39. Fla.R.Civ.P. Rule 1.130(a) requires a Plaintiff to attach copies of all bonds,
notes, bills of exchange, contracts, accounts, or documents upon which action may be
brought to its complaint.
40. The plaintiff has failed to attach a copy of the promissory note to its
amended complaint.
41. The plaintiff has also failed to attach a copy of any other document or
contract upon which this action to prosecute the breach of a promissory note is being
brought.
42. Fla.R.Civ.P. Rule 1.310(b) provides that all exhibits attached to a pleading
shall be considered a part of the pleading for all purposes. It appears on the face of the
6
plaintiff’s amended Complaint and the documents attached thereto that the plaintiff is
not the proper party to bring this action.
43. When exhibits are inconsistent with the 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 DCA 1983); Costa Bella
Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA
1983).
WHEREFORE, Defendant requests this court dismiss the plaintiff’s amended
complaint and this action with prejudice; award this defendant attorney’s fees and for all
other relief to which this defendant proves herself entitled.
CERTIFICATE OF SERVICE
The undersigned certifies that a true copy of this document has been mailed by U.S.
Mail and via fax (954) 233-8333 and via email to Donna Glick, Law offices of David J.
Stern, P.A., 801 S. University Drive, Suite 500, Plantation, Florida 33324, attorney for
Plaintiff, this 31st day of December, 2007.

JACKSONVILLE AREA LEGAL AID, INC.,

_____________________________________
April Carrie Charney, Esquire
Fla. Bar. No.: 310425
126 W. Adams Street
Jacksonville, Florida 33202
Telephone: (904) 356-8371, ext. 373
Facsimile: (904) 224-7050
april.charney@jaxlegalaid.org
Attorneys for Separate Defendant