Mortgage Servicing Fraud Forum

Search | Chat MSFraud.org > Message Board > Tactical Considerations in fighting foreclosure > New Post

New Post * Your name : Your email : * Mess age:

Arial 1 (8 pt)

Subscribe to this thread:

Yes

Manage Attachments Valid file extensions: bmp gif jpe jpeg jpg png
Post Message Preview Post

Thread Review (Newest First) :

Ann 01/14/11 at 07:25 PM

IN THE CIRCUIT COURT OF THE ____________ JUDICIAL CIRCUIT IN AND FOR _____________ COUNTY, ______________ {State} CIVIL DIVISION __________________________ AS TRUSTEE OF ___________ _____________________________, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES CASE NO: ______________ 20__-xx UNDER THE POOLING & SERVICING AGREEMENT DATED AS OF AUGUST __, 20__, WITHOUT RECOURSE. Plaintiffs v. ____________ and _____________ Defendants. __________________________________________________ _________________ ___________ DEFENDANTS MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Defendant___________________________ now files this Memorandum in Opposition to Plaintiffs Motion for Summary Judgment in the above-captioned case. Fla. R. Civ. P. 1.510(a).

For the reasons set forth below, Defendant contends that Plaintiff summary judgment motion should be overruled in its entirety.
Page 1 of 6

LAW AND ARGUMENT Defendant states that Plaintiff is not entitled to summary judgment because Plaintiff, as moving party, has not met its initial summary judgment burden to show conclusively the complete absence of any genuine issue of material fact and its entitlement to judgment as matter of law. Fla. R. Civ. P. 1.510(c); Dade Cnty. School Bd. V. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999).
(a) The

Plaintiff is not entitled to summary judgment because there are numerous unresolved questions of fact raised by Defendants Answer. Generally, "[a] movant is entitled to summary judgment 'if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). But if "a plaintiff moves for summary judgment before the defendant has filed an answer, 'the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.' BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 937-38 (Fla. 2d DCA 2010) (quoting Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963)). Thus, the standard to establish entitlement to summary judgment requires the plaintiff to establish that "the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint." Id. at 938. See also Howell v. Debb, Case No. 2D09-3664 Opinion filed May 28, 2010, (2nd DCA

2010).
Page 2 of 6

(b)Plaintiff has failed to submit sworn authentication evidence In support of its documentary evidence Under Florida law, the submission of documentary evidence in support of a summary judgment motion which is not properly sworn or certified is nothing more than unverified hearsay and cannot be considered by the reviewing court. Nichols v. Preiser, 849 So.2d 478, 481 (Fla. App. 2d DCA 2003); First Union Nat. Bank of Fla. v. Ruiz, 785 So.2d 589, 591 (Fla. App. 5th DCA 2001); Bifulco v. State Farm Mut. Auto. Ins., 693 So.2d 707, 710 (Fla. App. 4th DCA 1997). In this case, the documents attached to Plaintiffs summary judgment motion are not sworn to or certified in any manner whatsoever. They are not accompanied by any affidavit of a records custodian or other proper person attesting to their authenticity or correctness. They are, without question, unverified out-of-courtwritings offered to prove the truth of the matter asserted, i.e., Defendants alleged liability to Plaintiff. Such unverified hearsay does not satisfy the proceduralrequirements of Florida Rule of Civil Procedure 1.510(e), and thus the trial court [cannot] properly consider them in deciding a motion for summary judgment. Nichols v. Preiser, supra, 849 So.2d at 481.
Page 3 of 6

Because Plaintiff JAD has offered only unverified hearsay evidence in support of its liability claims, Nichols v. Preiser, supra, 849 So.2d at 481, Defendant submits that Plaintiff is not entitled to summary judgment in this case. JAD has failed to conclusively negate Defendants affirmative defenses In Florida, [t]he law is clear that where a defendant pleads an affirmative defense and the plaintiff does not, by affidavit or other sworn evidence, negate or deny that defense, the plaintiff is not entitled to summary judgment. Maung v.
(c) Plaintiff

National Stamping, LLC, 842 So.2d 214, 216 (Fla. App. 3rd DCA 2003). In this case, Defendant raised affirmative defenses in its responsive pleading. Plaintiffs Motion ignores these affirmative defenses. Plaintiff has submitted no documentary evidence which, as noted above, is insufficient to conclusively disprove any of the affirmative defenses. Maung v. National Stamping, LLC, supra, 842 So.2d at 216. Defendant submits that Plaintiff is not entitled to summary judgment in this case. (d) Plaintiff has failed to comply with the newly prescribed requirement for verification of pleadings.
Page 4 of 6

First, rule 1.110(b) was amended to require verification of mortgage foreclosure complaints involving residential real property. No. Sc09-1579 In Re: Amendments to The Florida Rules of Civil Procedure - Form 1.996 (Final Judgment of Foreclosure), (February 11, 2010), Revised On Rehearing, Per Curium. The pleadings must be accompanied by a signed statement as follows: When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not

entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. CONCLUSION For the above-mentioned reasons, Defendant states that Plaintiffs Motion for Summary Judgment should be overruled in its entirety. Respectfully submitted. ____________________________ __________________ Defendant, pro se 0000 Shell Isle Rd., Suite 0000 _____________, Fl. 00000
Page 5 of 6

(000) 000-0000 (000) 000-0000 (Facsimile) CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via facsimile and regular mail to __________, Esq., 00000 Biscayne Blvd., Ste. 000, _________ Florida 33161 this ____ day of _________, 20__. ______________________________ ______________________ Defendant, pro se Page 6

Ann 10/16/10 at 01:00 PM Ann 10/03/10 at 08:58 AM

An excellent Guide to Foreclosure Defense http://www.scribd.com/doc/39483420/Guide-to-Defending-YourFlorida-Foreclosure-2009 A Killer Qualified Written Request --------------------------------http://www.scribd.com/doc/27613349/Killer-Qwr-2 Answer with 27 Affirmative Defenses http://www.scribd.com/doc/36645226/Foreclosure-Answer-With27-Affirmative-Defenses A great source of foreclosure info and legal pleadings : http://www.scribd.com/83jjmack, http://www.scribd.com/winston2311

Cheryl Kalil 09/28/10 at 09:25 PM

How can John Cottrell sign as the Asst. Vice President to Mers, on my mtg transfer to Deutsche Bank and also sign as Asst. Vice President to Saxon in other people's documents?? Is it true that Deutsche Bank, Saxon and Mers is owned by 1? Or are the same company? We are going thru a bankruptcy/relief of stay/reaffirmation or sueing them right now. Cheryl

Ann 09/04/10 at 09:48 AM 27 AFFIRMATIVE FORECLOSURE DEFENSES ----------------------------------------------------------------------Thanks for sharing - D. Graham Esq. 305-445-9185 IN THE CIRCUIT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FORE MIAMI-DADE COUNTY FLORIDA

XXXXX Plaintiff YYYY

Case No :

Defendant ----------------------------------------------------/ DEFENDANT YYYYYS ANSWER AND AFFIRMATIVE DEFENSES

Defendant YYYYY by and through undersigned counsel and pursuant to applicable rules of the Florida Rules of Civil Procedures files this Answer and Affirmative Defenses to Plaintiffs Complaint; and states : 1. Defendant YYYYY denies all allegations of Plaintiffs Complaint and Demand strict proof thereof. 2. Defendant YYYYY specifically denies that conditions precedent to Plaintiffs right of action, right to attorneys fee and or right to accelerate herein were performed or met by Plaintiff or the same was waived by the defendant.

AFFIRMATIVE DEFENSES 3. As a first affirmative defense, defendant states that plaintiffs complaint fails to state a cause of action which relief requested may be granted and therefore this action is barred. 4. As a second affirmative defense, the defendant states that plaintiff does not have capacity to sue or bring this action and this action is therefore barred.

5.

As a third affirmative defense, defendant states that Plaintiff is not the real

Party in interest and or duly authorized agent of same upon which plaintiffs alleged claim is based and therefore has no standing to bring this action. 6. As a fourth affirmative defense, defendant states that plaintiffs failed to Perform conditions precedent to the initiation of this action and or for acceleration of payment allegedly due. As a result, defendant has been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the plaintiff, to avoid acceleration and this foreclosure.

7. As a fifth affirmative defense, defendant asserts all terms and condition of the promissory notes and mortgage upon which plaintiffs alleged claim is based. 8. As a sixth affirmative defense, defendant asserts all requirements of applicable mortgage foreclosure statutes. 10. As a seventh affirmative defense, defendant states that plaintiff is not the l lawful assignee of the Promissory Note and Mortgage upon which plaintiffs alleged claim is based. 11. As a ninth affirmative defense, defendant states that Plaintiff cannot produce the original Promissory Note and Mortgage upon which this action is based and therefore relief requested is barred. 12. As ninth affirmative defense, defendant states that plaintiff is not the holder of the Promissory Note and Mortgage upon which this action is based and therefore relief requested is barred. 13. As an eleventh affirmative defense, defendant states that plaintiff is not in possession of the Promissory Note and Mortgage upon which this action is based and therefore relief requested is barred.

14. As a twelfth affirmative defense, defendant states that upon information and belief, the note has been paid in full by an undisclosed third party who prior to or contemporaneously with the closing on the loan transaction paid the Lender in exchange for certain unrecorded rights to the revenues arising out of the loan documents. Upon information and belief, Plaintiff has no financial interest in the note or mortgage. Upon information and belief, the missing assignments on the note may have made it void and legal nullity, thus they have exploited key and vital

evidence or shipped same off-shore to a structure investment vehicle that also has no interest In the note or mortgage or the revenue therefrom. Upon information and belief, plaintiffs allegation that the note and the mortgage is lost, stolen or destroyed is therefore a fraud upon the court. 15. As a thirteenth affirmative defense, defendant states that plaintiffs claim Is barred by the statue of frauds, laches and or the statue of limitations. 16. As a fourteenth affirmative defense, defendant states that plaintiffs

claim is barred and or limited for violation of the federal Truth in Lending Act (TILA). 17. As a fifteen affirmative defense, defendant states that plaintiffs claim Is barred and or limited for violation of RESPA. Upon information and belief, Plaintiff and or its predecessor(s) in interest violated various provision of the Real Estate Settlement Procedures Act (RESPA), which is codified as 12 U.S.C Section 2601, et seq. by. Inter alia : a) Failing to provide the Housing and Urban Development (HUD) special

Information booklet, a Mortgage Servicing Disclosure Statement, and Good Faith Estimate of settlement/closing costs to Defendant at the time of the loan application or within three (3) days thereafter; b) Failing to provide Defendants with an Escrow Disclosure Statement for each year of the mortgage since its inception; c) Giving or accepting fees, kickback and or other things of value in exchange for referrals of settlement service business, and splitting fees and receiving unearned fees for service not actually performed; d) Charging a fee at the time of the loan closing for the preparation of truth-

in-lending, uniform settlement and escrow account settlements. 18) As a sixteenth affirmative defense, defendant states that plaintiffs

claim is barred and or limited for violation of the state and or federal Fair Debt Collection Practices Act. 19) As a seventeenth affirmative defense, defendant states that plaintiff claim for attorneys fee is barred for failure to perform or meet conditions precedent under the promissory note and or mortgage upon which action is allegedly based. alternatively, there is no valid contract or other written agreement between the parties permitting the award of attorneys fees in connection with this action. 20) As an eighteenth affirmative defense, defendant states that plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this court. The plaintiffs unclean hands result from the plaintiffs improvident and predatory intentional failure to comply with material term of the mortgage and note; the failure to comply with the default loan servicing requirements that apply to this loan, as described herein above. As a matter of equity, this court should refuse to foreclose this mortgage because acceleration of the note would be inequitable, unjust, and the circumstanced of this case render acceleration unconscionable. This court should refuse the acceleration and deny foreclosure because plaintiff has waived the right to acceleration or is stopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent. 21) As a nineteenth affirmative defense, defendant states that upon information and belief, Defendant have made all payments required by law under the circumstances; however Plaintiff and/or its predecessor(s) in interest improperly applied such payments resulting in the fiction that Defendant was in default. defendant is entitled to a full accounting through the master transaction histories and general ledger for the account since a dump or summary of said information

cannot be relied upon to determine the rightful amount owed. Further, the principal balance claimed as owed is not owed and is the wrong amount ; the loan has not been properly credited or amortized. Additionally, plaintiff wrongfully placed forced insurance on the property and or is attempting to collect on property taxes, insurance and fees not owed. 22) As a twentieth affirmative defense, the defendant states that plaintiff failed To comply with the foreclosure prevention loan servicing requirements impose on plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x( c) (5) which requires all private lenders serving non-federally insured home loans, including the Plaintiff, to advise borrowers of any home ownership counseling plaintiff offers together with information about counseling offered by the U.S Department of Housing and Urban Development . The U.S Department of Housing and Urban Development has determined that 12 U.S.C. 1701x( c) (5) creates an affirmative legal duty on the part of the plaintiff. Plaintiffs non-compliance with the laws requirements is an actionable event that makes the filing of this foreclosure premature based on a failure of statutory condition precedent to foreclosure which denies plaintiffs ability to carry out this foreclosure. Plaintiff cannot legally pursue foreclosure unless and until plaintiff demonstrates compliance with 12 U.S.C. 1701x( c) (5) .

23. As a twenty-first affirmative defense, defendant states that plaintiff has charged and or collected payments from defendant for attorneys fees, legal fees, litigation attorney fees, foreclosure cost, late charges, property inspection fees, property valuation charges, and other charges and advances, and predatory fees, force placed insurance

and other charges that are not authorized by or in conformity with the terms of the subject note and mortgage. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance plaintiff claims is due owing under the subject note and mortgage. 24. As twenty-second affirmative defenses, defendant states that plaintiff failed to provide defendant with legitimate and non predatory access to the debt management and relief that must be made available to borrowers, including the defendant pursuant to and in accordance with the Pooling and Servicing Agreement or other trust agreement that controls and applies to the subject mortgage loan. Plaintiffs non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to the applicable Pooling and Service Agreement is an actionable event that makes the filing of this foreclosure premature based on a failure of a contractual and or equitable condition precedent to foreclosure which denies plaintiffs ability to carry out this foreclosure. Plaintiff cannot legally pursue foreclosure unless and until plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the subject Pooling and Servicing or Trust Agreement under which the Plaintiff owns the subject mortgage loan. 25. As a twenty-third affirmative defense, defendant states that plaintiff unintentionally failed to act in good faith or to deal fairly with the defendants by failing to follow the applicable standards of residential single family mortgage servicing as described in these affirmative defenses thereby denying defendant access to the residential mortgage servicing protocols applicable to the subject note and mortgage.

26.

As a twenty-fourth Affirmative Defenses, Plaintiff is not entitled to any deficiency

judgment as it failed to mitigate damages by refusing to accept a deed in lieu or short sale offers proposed by or on behalf of defendant. Plaintiff otherwise failed to mitigate its damages by other factors to be revealed through discovery. 27. As a twenty-fifth affirmative defenses, defendant states that in light of all of

the foregoing defenses, and on the face of the purported loan documents, the terms and circumstances of the Note and Mortgage were unconscionable when made and were unconscionably exercises, it is therefore unconscionable to enforce the mortgage by foreclosure. 28. As a twenty-sixth affirmative defense, defendant states that plaintiff cannot prove its case against defendants and therefore this court should enter judgment in defendants favor and quiet title in their favor, voiding the alleged promissory and mortgage upon which plaintiff seeks to recover herein. 29. As a twenty-seventh affirmative defense, defendant state that plaintiff is

liable for defendants costs and attorneys fees pursuant to terms of the agreement between the parties and Florida Statutes, Section 57.105 and or applicable Provisions of the State and Federal Fair Debt Collection Practices act and or the Federal Truth and Lending Act. WHEREFORE, Defendant yyyyyy requests this Court to enter Judgment in his favor, quieting title, awarding cost and attorneys fee for those reasons set forth herein in addition to relief deemed proper.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was Served by US Mail upon AAAAA. Esq. Law Offices of Marshall C. Watson Attorney for Plaintiff , 1800 NW 49 Street, Suite 120, Forth Lauderdale FL 33309 On June 2, 2010 Attorney for Plaintiff

Ann 08/29/10 at 10:26 PM

Critical Courtroom Objections ...

From a lawyer:
Putting the Brakes on Crooked Judges & Lawyers! The most important thing to learn about winning lawsuits is the easiest to learn! Timely objections! You cannot win without controlling the court. Many people (from watching courtroom battles on TV or at the movies) believe we make objections to control "the other lawyer". In fact, that is the smallest part of it. We object to threaten the judge with appeal! If a judge didn't have to worry about appeal, he could rule any way he wishes -- knowing absolutely nothing you can do will reverse his decisions. I'll bet many of you didn't know that. If an issue is not raised during lower court proceedings, appellate courts will not consider the

issue after you lose. That is a hard-and-fast rule of appellate courts! If the other side crosses the line, you must object. If the judge sustains your objection, you stop the tricks. If the judge overrules your objection, you object again and state your reasons ... even if the judge threatens you with contempt! At the close of the other side's argument, you renew your objections once again. At the close of all deliberation, you renew once more, to make crystal clear to the judge that you are not playing! If you don't object, you cannot win on appeal. And, of course, you must arrange in advance of every hearing and trial for the proceedings to be recorded by an official court reporter ... or you cannot win on appeal. If the judge knows you cannot win on appeal, you've given him a free hand to do as he pleases. Not good! The judge is not the authority! You must make it crystal clear on the court's record that the judge will be reversed on appeal if he rules against you, and you do this by making timely objections and renewing them if you are overruled. The reason we renew our objections is to give the judge one more opportunity to do what's right! Appellate courts want the record to show that the judge was very much aware of your objections, the grounds for your objections, and stubbornly refused to follow the law! Each time you object (and state the grounds for your objections, unlike TV actors) you put the judge on notice that overruling your objection threatens appeal. If your objections have solid legal footing and the

judge overrules your objections, he is skating on thin ice! When you renew your objections, he knows you intend to take him up on appeal if his errors harm your cause. For example, one of the most common errors is letting the lawyer on the other side "testify". The lawyer on the other side is not a witness. He doesn't have firsthand knowledge of the facts. He lacks "competence" to testify to any fact he learned from others. Far too many good people lose their lawsuits simply because they allow the lawyer on the other side to put facts into the record that are beyond the lawyer's own, personal knowledge. Failure to object is fatal. "Objection, your Honor. Counsel is testifying to facts beyond his personal knowledge and lacks competence to act as lawyer and witness at the same time!" If the judge sustains your objection, you've put a stop to one of the most common outlaw games crooked lawyers play ... and you've strengthened your case. If the judge overrules your objection, just stand up and say, "Let the record reflect my objection that opposing counsel lacks competence to testify to these matters." When the other side finishes his presentation, object again! At the close of all the testimony, object again! Don't let corrupt judges and crooked lawyers win! Clever argument is not enough. Knowing the law is not enough. Controlling judges is what wins lawsuits! You control judges by making clear on the record that you intend to appeal if the judge rules against you!

You do this by making timely objections and renewing your objections so the record is crystal clear! Know how to control the judge - or you will lose! Learn how to control judges by timely objecting! As Woody Guthrie used to sing, "This Land is our Land," and that includes every courtroom and every courthouse from San Diego to Bangor, Maine. Why let lawyers control our lives with trickery? Why let judges destroy our lives by letting lawyers get away with their typical trickery?

Ann 07/13/10 at 10:28 PM

To oppose the Summary Judgment, Defendant can file Motion to Strike Plaintiff Affidavit and supoena the Signor of Affidavit for Deposition. -------------------------------------------------------------------IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION CASE NO. 2008-013676-CI-ll DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for IXIS REAL ESTATE CAPITAL TRUST 2006-HE3, PLAINTIFF, v. AIDA HAYES AND HOWARD HAYES DEFENDANTS. --------------------------------~/ NOTICE OF PRODUCTION YOU ARE NOTIFIED that after 10 days from the date of service of this notice, if service is by delivery, or 15 days from the date of service, if service is by mail, and if no objection is received from any party, the undersigned will issue or apply to the clerk of this court for issuance of the attached subpoena directed to JOHN COTTRELL, who is not a party and whose address is 10004 N. DALE MABRY HIGHWAY, SUITE 112, TAMPA, FL 33618, to produce the items listed at the time and place specified in the subpoena. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail on this __ day of March, 2010 to MEGHAN A. KENEFIC, Sh iro & Fishman, LLP, 10004 N. Dale Mabry Highway, Suite 112, Tampa, FL 33618. S1. Petersburg, FL 33705 (727) 894-3159 FBN: 0185957 ,/ /~,r '~T-/H---------::;;~--------1229 Central Avenue IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION CASE NO. 2008-013676-CI-ll DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for IXIS REAL

ESTATE CAPITAL TRUST 2006-HE3, PLAINTIFF, v. AIDA HAYES AND HOWARD HAYES DEFENDANTS. ------------------------------~/ SUBPOENA DUCES TECUM FOR RECORDS STATE OF FLORIDA: TO: JOHN COTTRELL ASSISTANT VICE PRESIDENT -SAXON MORTGAGE SERVICES, INC. SHAPIRO & FISHMAN, LLP 10004 N. DALE MABRY HIGHWAY SUITE 112 TAMPA, FL 33618 YOU ARE HEREBY COMMANDED to appear at the law offices of MA TTHEW D. WEIDNER, P.A., 1229 Central Avenue, St. Petersburg, Florida, 33705, on APRIL 15, 2010, at 12:00 PM, and to have with you at the above time and place the following: 1. All books, papers, records, documents and other tangible things kept by SAXON MORTGAGE SERVICES, INC. concerning the transactions alleged in the complaint against AIDA HAYES AND HOWARD HAYES. 2. Any and all other books, papers, records, documents or tangible things that relate to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR IXIS REAL ESTATE CAPITAL TRUST 2006-HE3 claim against AIDA HAYES AND HOWARD HAYES. 3. All employment records, including but not limited to time sheets, which exist between JOHN COTTRELL and any employer who has employed JOHN COTTRELL two weeks preceding and two weeks subsequent to the execution of this document. ----------------------------4. All records that purport to give JOHN COTTRELL the authority to sign or execute any documents on behalf of any person or entity. 5. If you are a notary public, your notary public's logs. 6. All documents, records, books, evidence or instructions that you reviewed or relied upon in order to prepare the affidavit or assignment executed in this case. These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears on this subpoena on or before the scheduled date of production. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation. You may mail or deliver the copies to the attorney whose name appears on this subpoena and thereby eliminate your appearance at the time and place specified above. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena. THIS WILL NOT BE A DEPOSITION. NO TESTIMONY WILL BE TAKEN. Ifyou fail to: (a) appear as specified, or (b) furnish the records instead of appearing as provided above; or (c) object to this subpoena you may be in contempt of Court. You are subpoenaed by the attorneys whose names appear on this subpoena, and unless excused from this subpoena by the attorney or the Court, you shall respond to this subpoena as directed. FOR THE COURT

Matthew D. Weidner, P.A. 1229 Central Avenue S1. Petersburg, FL 33705 By: Matthew D. Weidner FBN: 0185957 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION CASE NO. 2008-013676-CI-ll DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for IXIS REAL EST ATE CAPITAL TRUST 2006-HE3, PLAINTIFF, v. AIDA HAYES AND HOWARD HAYES DEFENDANTS. ------------------------------~/ DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S AFFIDAVIT IN SUPPORT OF ITS MOTION FOR FINAL SUMMARY JUDGMENT AND FOR ATTORNEY'S FEES COMES NOW, the Defendants AIDA HA YES AND HOWARD HAYES (hereinafter "Defendant"), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE PLAINTIFF'S AFFIDAVIT n'J SUPPORT OF ITS MOTION FOR FU'JAL SUMMARY JUDGMENT AND FOR ATTORNEY'S FEES, pursuant to Fla. R. Civ. Pro. 1.510, and in support thereof states as follows: FACTS 1. This is an action for foreclosure of real property owned by the Defendant. 2. The named plaintiff in this case is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR IXIS REAL ESTATE CAPITAL TRUST 2006HE3 (hereinafter "Plaintiff'). 3. On March 2, 2010 Plaintiff, by and through its undersigned counsel, gave Notice of Filing of Affidavit in Support of Its Motion for Final Summary Judgment and the accompanying Affidavit (hereinafter "Affidavit"). 4. The Affiant of the above-mention Affidavit was identified as JOHN COTTRELL (hereinafter "Affiant"). The Affiant identified himself as an "Assistant Vice President" for SAXON MORTGAGE SERVICES, INC. (hereinafter "Saxon") in the opening paragraph of the Affidavit which appears to be a paragraph reserved for the Affiant's title. Saxon and its relationship to the Plaintiff, however, was not identified anywhere in the Affidavit. 5. The Affiant, based upon his personal knowledge, averred in the Affidavit that the total amount owed on the Note and Mortgage allegedly executed between the Plaintiff and the Defendant was $159,661.701 and that "[the Plaintiff] is the owner and holder of that certain mortgage originally given by [the Defendant].,,2 6. The Affiant also averred that he "has access, custody and control of the records maintained by the Plaintiff with respect to the mortgage loan account which is the subject of the instant action.,,3 These records, however, were not attached to the Affidavit. Further, upon information and belief, these records are what form the basis for the Affiant's statements. 7. Upon information and belief, Saxon is a "middleman" of sorts who is responsible for the transfer of funds between the various assignees of the underlying Mortgage and Note and has no knowledge of the underlying transactions between the Plaintiff and Defendant. 8. Upon information and belief, the Affiant, as employee of Saxon and not the Plaintiff, has no knowledge ofthe underlying transactions between the Plaintiff

and Defendant. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION I See Plaintiff's Affidavit in Support of its Motion for Summary Judgment, ~9. 2 rd, ~6. 3 Id, ~2. I. The Affidavit Should be Struck because the Plaintiff Failed to Attach Documents Referred to in the Affidavit a. Legal Standards Fla. R. Civ. Pro. 1.51O(e) provides, in part, that "[s]wom or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Failure to attach such papers is grounds for reversal of summary judgment decisions. See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.) b. Argument 9. Here, the Affiant states in the Affidavit that he "has access, custody and control of the records maintained by the Plaintiff with respect to the mortgage loan account which is the subject of the instant action.,,4 These records, however, were not attached to the Affidavit. Furthermore, upon information and belief, these records are what form the basis for the Affiant's statements, particularly his statement that amount owed on the Note and Mortgage allegedly executed between the Plaintiff and the Defendant was $159,661.705 and that "[the Plaintiff] is the owner and holder of that certain mortgage originally given by [the Defendant].,,6 In essence, the Affiant has averred to records which she did not submit. WHEREFORE, because the Plaintiff has failed to attach documents referred to in its Affidavit in violation of Fla. R. Civ. Pro. 1.51 O(e), the Affidavit should be struck in whole. II. The Affidavit Should be Struck because the Affidavit Was Not Based Upon the Affiant's Personal Knowledge a. Legal Standards 4 See Plaintiff's Affidavit in Support of its Motion for Summary Judgment, ~2. 5 Id, ~9. 6 Id, ~6. As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that "affidavits shall be made on personal knowledge"); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005); In re Forefeiture of 1998 Ford PickUp, Identification No. IFTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). Additionally, a corporate officer's affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co., So. 2d 1204,1205 (Fla. 1st DCA 1986). Most importantly, an affiant should state in detail the facts showing that the affiant has personal knowledge. See Hoyt v. St. Lucie County, Bd. Of County Comm'rs, 705 So. 2d 119 (Fla. 4th DCA 1998) (holding an affidavit legally insufficient where it failed to reflect facts demonstrating how the affiant would possess personal knowledge of the matters at issue in the case); Carter v. Cessna Fin. Corp., 498 So. 2d 1319 (Fla. 4th DCA 1986) (holding an affidavit legally insufficient where the affiant failed to set out a factual basis to support a claim of personal knowledge of matter at issue in the case and failed to make assertions based on personal knowledge.) The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that "the purpose of the personal knowledge

requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief." Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia Countv, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)). This opposition to hearsay evidence has deep roots in Florida common law. In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order ofsurnmary judgment in favor of Flea Market U.S.A as Capello's affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969). Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant's personal knowledge. h. Argument Here, the entire Affidavit is hearsay evidence as the Mfiant has absolutely no personal knowledge of the facts stated therein. As an employee of Saxon, whose relationship to the Plaintiff is not even identified in the Affidavit, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant. Neither the Affiant nor Saxon: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant. At best, Saxon, who is not the named Plaintiff, acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note. Most importantly, the Affidavit fails to set forth with any degree of specificity what duties Saxon performs for the Plaintiff. Thus, the Affiant has failed to state in detail the facts showing that she has personal knowledge. Because the Affiant has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement she gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $159,000) is, by its very nature, hearsay. The Florida Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fla. Stat. 90.80I(l)(c) (2007). Here the Affiant is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than herself (namely, the Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law.) At best, the only statements which the Affiant can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note. The Plaintiff may argue that while the Affiant's statements may be hearsay, because they may be based off of certain alleged "business" records, they should nevertheless be admitted under the "Records of Regularly Conducted Business Activity" exception. Fla. Stat. 90.803(6) (2007). This rule provides that notwithstanding the provision of 90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is [aJ memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation,

all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. Emphasis added. There are, however, several problems with this argument. To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff. Moreover, the First District has recently held that lists of payments due and owing, such as the list found in paragraph four, are inadmissible hearsay statements and not business records and it is therefore an error to award summary judgment based on such an affidavit. Mitchell Brothers, Inc. v. Westfield Ins. Co., 35 Fla. L. Weekly DI07 (Fla. 1st DCA Dec. 31, 2009). WHEREFORE, because the Affiant's statements in the Affidavit are not based upon personal knowledge and are therefore inadmissible hearsay evidence to which no hearsay exception applies, the Affidavit should be struck in whole. III. Sanction of Attorney's Fees is Appropriate Fla. R. Civ. Pro. 1.510(g) reads, in full, that [i]f it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys' fees, and any offending party or attorney may be adjudged guilty of contempt. Emphasis added. The undersigned counsel has expended considerable time and resources preparing to defend against an affidavit which has, on its face, no basis in law. Both the Plaintiff and the Plaintiffs counsel knew that the Affiant's affidavit lacked authenticity and reliability yet still chose to file it with the Court. This may be indicia of a modus operandi on the Plaintiffs part to present misrepresentations and false affidavits to the Court which make an award of attorney's fees and costs an appropriate sanction. WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE PLAINTIFF'S AFFIDAVIT IN SUPPORT OF ITS MOTIN FOR SUMMARY JUDGMENT and enter an ORDER granting ATTORNEY'S FEES AND COSTS and any other relief the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail on this K~of March, 2010 to MEGHAN A. KENEFIC, Shapiro & Fishman, LLP, 10004 N. Dale Mabry Highway, Suite 112, Tampa, FL 33618. ~ Attorney for Defendant 1229 Central Avenue St. Petersburg, FL 33705 (727) 894-3159 FBN: 0185957

Ann 07/12/10 at 10:41 PM

Referral: Prominent Foreclosure Defense Attorney D. Graham 305445-9185 -------------------------------------------------------------------------What do I do if I am sued for foreclosure in Florida?

1. Respond to the Complaint

You have twenty days after service to respond to the Complaint. You can file a

Motion for Time Extension to ask for another 20 days to file a response The response can be an Answer or a Motion to Dismiss. If justified, the initial response should be a motion to dismiss. The Motion to Dismiss delays the time for an Answer until the motion is denied. You will waive many issues if you omit them from the motion, so you should hire a lawyer to represent you if at all possible.

2.Draft the Motion to Dismiss

Consider: 1. Was service on you proper? (In your hand, or if at home in the hand of you or another adult resident) 2. Is a copy of the promissory note attached to the Complaint? 3. Does the plaintiff adequately show the plaintiff owns and holds the note? 4. If there is a count to re-establish a lost note, does the count say it was lost while in the possession of the plaintiff? Are the allegations generic or specific? 5. Does the Complaint show that the taxes on the note were paid? 6. Does the Complaint show that you signed the note or have an interest in the property (2d mortgage holder, tenant, etc) -- being a spouse of the debtor is no reason to sue you. Serve the motion to dismiss. Send the original to the clerk of the court. (If possible, bring a copy of the original to the clerk of the court with the original motion and have the clerk time-stamp your copy to show it was on time).

3. Wait until the judge rules on the motion

Some circuits require that you send a copy of the motion to the judge with a blank order and envelopes. If there is such a requirement, do it. You do not have to do anything else until the motion is denied. Under the above procedure, this might happen without a hearing, or the judge might request a hearing. In the circuits that do not require notifying the judge about a motion to dismiss, the plaintiff will have to contact you, discuss the merits of the motion, and if you do not agree, either set it for hearing or Amend the Complaint. (If the Complaint is amended, go back to step 1, above). If the matter is set for hearing, attend the hearing and tell the judge why the Complaint is defective (not why you do or do not owe the money). If the Plaintiff has no Standing to foreclose(i.e does not own the notes or Plaintiff is not a Party of Interest etc ), the Judge still denies your Motion to Dismiss, you can consider go to Appeal. Remember to go to the hearing with a Court Reporter as you need certified transcript to go to Appeal Court.

4. Answer the Complaint

You should have a lawyer do this in order not to miss important issues. But consider: 1. Denying all the material facts alleged. 2. Adding Affirmative Defenses; consider these: A. The same issues detailed in the Motion to Dismiss considerations B. Predatory lending C. Illegal interest rates D. Waiver E. Violation of the Truth in Lending Act F. The Complaint fails to state a cause of action. G. The Complaint fails to state a cause of action because it does not show endorsement of the promissory note to the plaintiff. H. Plaintiff has failed to present the promissory note for payment as required by Fla. Stat. 673.011, et. seq. I. Plaintiff is in violation of Florida Statute 57.011 because it is a nonresident of the State of Florida that has not posted a non-resident cost bond after a demand that it do so. J. Plaintiff is not the real party in interest

5. The matter will be set for mandatory mediation

The Florida Supreme Court has recently adopted rules requiring mandatory managed mediation in all residential foreclosure cases. You will be contacted by the organization responsible for the mediation. TAKE THE CALL. COMPLY WITH THE REQUEST TO CONTACT THE CREDIT COUNSELOR. PROVIDE THE REQUESTED INFORMATION. Attend the mediation when it is set.

6. Attend mediation
Consider these possibilities: If you want to leave the home, consider: 1. Giving a deed in lieu of foreclosure (be sure you get a guarantee of debt forgiveness) 2. Asking for move-out money ("Cash for Keys") 3. A short sale (be sure you get a guarantee of debt forgiveness) 4. Setting a move-out date long into the future. If you want to stay in the home, consider: 1. Ask for a reduction in principal to the value of the home (A recent federal program may help facilitate this in part) 2. Asking about the HAMP program (if you qualify, the interest rate is reduced and the term extended so that the payments are reduced) 3. Asking about conventional refinancing to current rates Remember, you do not have to agree on anything. You can let the foreclosure take its course. Remember, the promissory note is negotiable paper, it may be able to be sold and then enforced against you if you do not get the original note back.

7. If mediation is unsuccesful, send discovery to the plaintiff

You need a lawyer to do this well. The discovery should be aimed at showing that you do not owe this plaintiff anything. Consider: 1. Interrogatories 2. Request to Produce 3. Request to Admit Be aggressive if you do not timely receive responses. File motions to compel and set them for hearing. The plaintiff's lawyers are probably working on a flat fee and may leave you alone if you are difficult to deal with. Be sure to properly respond to the plaintiff's discovery. (Request to Admit are deemed admitted if you do not timely respond).

8. When the Motion for Summary Judgment is filed; Respond with an Affidavit
A trial will be needed if any material allegations are at issue. These might include who owns the note, are you in default, as well as the legal defenses set forth above. But, the judge will only defenses presented in a timely, properly drafted and filed affidavit, Get a lawyer to help you do this. Avoid a Summary Judgment.

8.If there is a trial, defend aggressively.

Make sure you hire a court reporter for trial

Raise all the issues stated above. Bring witnesses and documentary evidence. Concede nothing.

10. If you lose

Consider an appeal, but this is costly and does not delay the foreclosure without posting a bond. You can still redeem the property by paying the judgment until the clerk of the court issues the certificate of title. Consider refinancing. You can also file Bankruptcy to delay the sale and have your debts including the mortgage wipe out.

Ann 06/30/10 at 12:55 AM

Judicial Foreclosure Process

Written by: Margery Ellen Golant Attorney licensed in Florida and 1 other state

Foreclosure is the process by which the lender takes control of the property and sells it to raise money to pay the debt. The process varies depending on if your state is a judicial or nonjudicial state. Find out how judicial foreclosure works.

1.The Foreclosure Process

Foreclosure is the process by which the lender takes control of the property which was pledged as collateral for the mortgage debt and sells the property to raise money to pay on the debt created by the Note. The sale extinguishes the borrower's interest in the property although some states have redemption period after the sale. Other interests are also extinguished if the foreclosure is done properly, including the rights of other owners, spouses, junior mortgages, lienholders, and some taxes. The foreclosure process is very different depending on whether it is judicial or non-judicial. In the US, approximately half of the states permit non-judicial foreclosure. The rest of the states require judicial foreclosure. A few states allow both. However, the process is different in each state; accordingly the material here is intended as a general guide. It is for educational purposes only, and is not legal advice.

2.Interested Parties
In order for the interests of all parties who may have a claim to the property be extinguished, the foreclosure must be done properly, and all interested parties

must be given proper notice as detailed by state law. The typical interested parties are other owners of the property, spouses, junior mortgages, lienholders, and some taxes. If the borrower is deceased, his or her heirs and estate are interested parties.

3. Judicial Foreclosure
Judicial foreclosure is a lawsuit, similar to other kinds of lawsuits. It is formal and much more complex, and generally takes longer than non-judicial foreclosure, although this varies by jurisdiction. The point of a judicial foreclosure is for the lender to obtain from the court a judgment in foreclosure, and the right to hold a sale of the mortgaged property. The court is involved in the foreclosure process all the way through. So, if a borrower feels there is something wrong or improper occurring, he or she can raise those issues within the judicial foreclosure proceeding.

4. Notice of Default and Acceleration

Most mortgage and most states' laws require the lender to give a borrower advance notice that a foreclosure is about to start, and an opportunity to cure the default. The cure period is typically between 20 and 60 days, depending on the mortgage document and state law.

5. Service of Process
Lawsuits are begun by service of process. All states have laws that govern exactly how this has to work to be valid. In most states, it means that the Summons and Complaint (see below) must be handed directly to you or to an adult member of your household. However, all states have laws to cover situations where you avoid service of process or cannot be served personally. Service of process must be done properly in accordance with the law of the state in question to be valid. These days we see many examples of improper service of process. If process is not served properly, this issue MUST be raised before any other defensive pleadings or it is waived.

6. Summons and Complaint

This is usually the first evidence that a borrower in a judicial state sees that his or her property is being subjected to foreclosure. A Complaint is filed by the lender or its agent, the loan servicer, with the Clerk of the court having jurisdiction over foreclosures in that county. The Clerk issues a Summons, and that, with the Complaint, is then delivered personally to the borrower and any other interested parties (other property owners, spouses, junior mortgages and liens, condominium and homeowners' associations). Service of the Summons and Complaint starts the clock ticking for the party served to defend if he, she or it is going to do so. The party suing is the Plaintiff, the parties being sued are Defendants. The Complaint asks that the court accelerate the obligation to pay the entire mortgage debt in full, with all accrued costs, fees, advances and expenses.

7. Response
If a borrower or other interested party has any reason to contest a foreclosure, he she or it needs to file a Response to the Complaint unless there is a defective process service issue (see above). There are many different kinds of responses, and it is critical that the right one be utilized at the right time. Motions and other objections normally deal with preliminary matters of some kind, including technical defects in the Complaint, technical defects in service of process, etc. There are various kinds of preliminary motions. Most applicable usually to foreclosure, depending on the facts, are Motions to Quash Service, Motions to Dismiss, Motions to Strike, and often there are others, depending on the specific law and procedure of the state in question.

8.Response - Answer
Answers fully address the allegations of the Complaint. In most cases, if issues exist which can be raised by Motion or Objection, this is waived if an Answer is filed first. Answers raise legal issues which are defenses to foreclosure (See Guide - Defenses to Foreclosure). The amount of time allowed for a Response is governed by state law, usually 20 or 30 days. Many people try to file their own "Answer". This is normally a very dangerous move. The filing of an Answer generally extinguishes the right to file preliminary motions, which can be critical to the correct handling of a defense case. The only things which should be contained in an Answer are legal defenses to foreclosure. These are rarely what you would expect. Typically, the sorts of things people file talk about their financial difficulties, about the fact that they are trying to get the mortgage company to work with them, or trying to get a better job, and that they need more time.

9.Default
If a Defendant does not file a response within the time allowed by law, the Plaintiff can cause default to be entered against that Defendant, which precludes his or her being able to raise defenses. In some states, it also allows the foreclosure to proceed without any further notice to defaulting defendants.

10. Counterclaim
If a borrower has been wronged by the mortgage lender or servicer, he or she may file a counterclaim. A counterclaim is just that - a suit within a suit, where the Borrower is suing the Lender or Servicer.

11.Discovery
Interrogatories, Requests for Production, Requests for Admission, Depositions These are tools which can be used by any party to a lawsuit to obtain more information to prove or disprove his, her or its case. Interrogatories are written questions which one party serves on the other, demanding information. Requests for Production are requests for tangible things, such as documents, files, objects,

etc. Requests for Admissions are used by attorneys to attempt to compel the other side to admit or deny issues. Depositions are in-person testimony, under oath, all of which is taken down by a court reporter. Cases may involve all or any combination of these, however each jurisdiction has specific rules as to when discovery can be propounded, how long the other side has to respond, and how to handle a failure to respond or to respond properly. Properly done discovery is usually the key to a successful outcome in a lawsuit.

12. Burden of Proof

Normally, whichever party raises an issue has the burden of proving it. This means that if I say you owe me money, I have to be able to prove it. If I say I own the mortgage on your home, I have to be able to prove it. As mentioned above, well-done discovery will allow your attorney to find out whether I can prove it or not. As an example, if you claim that the mortgage company did not apply payments correctly, you have to be able to prove it. You may be able to do this with your records, but it would also be of tremendous use to get the mortgage company's records of what payments they applied to see if their records are right. So, in a Judicial Foreclosure, the Plaintiff has the burden of proving its right to foreclose, the amount of the debt and the existence and details of default. The defendant has the burden of proving any affirmative defenses he she or it raises.

13. Summary Judgment

Either party has the right to ask the court to grant summary judgment in its favor. Normally, the Motion for Summary Judgment is supported by affidavits from potential witnesses supporting their claims. If granted, that ends the case - it means the moving party wins. Summary judgment is the goal of foreclosure plaintiffs. Technically, it means that the court is convinced that there is no reason for a trial, that the pleadings and issues raised in the case by the parties demonstrate that the party requesting summary judgment does not have to do any more to prove its case. If a defendant does not raise issues which constitute defenses to foreclosure, and does not establish that there are issues that need to be sorted out at trial, the court is likely to grant summary judgment, since that removes one more case from the court's swollen caseload.

14. Summary Judgment (cont.)

If a defendant has been defaulted, the way to summary judgment for the Plaintiff is wide open. If a defendant has filed a homemade "answer" telling the court that he, she or it can't pay right now, is trying to get a modification, is trying to get a better job, needs more time, likewise the way to summary judgment for the Plaintiff is wide open. If the defendant has properly raised legitimate issues, there is a chance of surviving summary judgment and if a summary judgment is improperly granted anyway, that may be a basis for appeal. The Order granting Summary Judgment normally itemizes the entire amount claimed to be due at that point - the entire mortgage debt in full, with all accrued costs, fees, advances and expenses. Once Summary Judgment is granted, the next step normally is the scheduling of a foreclosure sale.

15. Trial
If neither party is able to obtain Summary Judgment, and unless the dispute is settled by agreement, the next step is trial. Trial is a full scale proceeding. Some states allow for trial by jury, others do not, but most mortgage documents contain a jury trial waiver which the borrower consented to at closing. At trial a judge with or without a jury hears and rules on all the evidence presented, hears the arguments of counsel and makes a decision. If a Counterclaim has been filed and has not been disposed of via Summary Judgment, the counterclaim may allow for trial by jury. At the conclusion of the trial, if the Plaintiff wins, then it proceeds to set a sale (see below). If it loses, it will be unable to proceed any further with the foreclosure process. If it did lose, depending on the reason why, it may be possible for another Plaintiff to bring an action for foreclosure.

16. Foreclosure Sale

In order for a foreclosure sale to be held in a judicial foreclosure, the actual lawsuit must be over, either through Summary Judgment or after trial, and all that remains are the final details of getting the property sold. Again the process and details vary by state, but all entail setting a date for sale. Notice of the date is given to all interested parties and in many states also provided publicly in the newspaper and often now by posting on the web sites of Courts, Clerks of Court or other similar locations. The foreclosure sale is handled by a judicial officer - in some states it is the Sheriff, in some states it is the Clerk of Courts, in some states a referral is made to a court-appointed master. The date is set, notice is given, and then the actual sale occurs. It is generally in the form of an auction.

17. Foreclosure Sale (cont.)

The foreclosing lender sends a representative to bid. Its bid is usually the total amount due it, although sometimes if the property is underwater, the lender will reduce its bid in the hope that it will be outbid by a third party. If a junior lienholder or third party is the high bidder, it is the successful purchaser. However, in many places now, when the mortgage debt equals or exceeds the current value of the property, there are no other bidders, and so the mortgage company wind up as the high bidder. Normally the entire bid amount must be paid right away in full. There is some time period after the sale before the sale is confirmed. This varies by state. Once the sale is confirmed, a document is issued to the buyer conveying title. Depending on the state, it might be a Sheriff's Deed, a Certificate of Title or some other instrument, but the practical effect is to convey title. Once the new buyer owns the property, they can do what they want, subject to right of redemption.

18. Deficiency Judgments

Many states provide a mechanism for a foreclosing Plaintiff to recover a deficiency judgment, usually consisting of the shortfall between the total owed by the borrower and the value of the property it recovers if it buys it at the foreclosure sale. In those states that permit this, a borrower is not done with the obligation simply because he she or it allows a foreclosure to be completed. It is

very important to understand whether or not you may be exposed for a deficiency judgment before you decide whether to oppose foreclosure or to consider bankruptcy. For details of how deficiency judgments work in Florida, check my Legal Guide on deficiency judgments. While the guide is geared to Florida, the concept is similar in other states that permit it, although the details and timeframes vary. Some states do not allow deficiency judgments under some circumstances.

Ann 06/27/10 at 07:14 PM

LAWSUIT FLOW CHART Lawsuits remain a mystery to those who dont know how to "take them apart" to understand the relationships of their component phases. There are five (5) phases of every lawsuit (state or federal jurisdictions). As you see, there are 3 MAIN phases and 2 INTERMEDIATE phases. 1. Complaint Answer -- Trial (The initial letters spell CAT!) 2. Flurry of Motions -- Discovery Lawsuits are won by making a record of the FACTS & LAW during each of the five phases. To win as plaintiff, you merely meet your burden to prove that the facts and controlling law in your jurisdiction agree. To win as defendant, you merely prove that the plaintiffs facts and law do not agree, so plaintiff cannot meet his burden. During each phase, plaintiff tries to meet his burden, while defendant does all he can to shoot holes in the plaintiffs case. Its really that simple! 1. COMPLAINT Plaintiff concisely and clearly states all facts necessary to win and says no more than necessary. Plaintiff also concisely and clearly states the law that, if stated facts are proven true, will give him a favorable verdict "according to law". The power of law exists

whenever necessary facts are proven to exist. In order to win a lawsuit, therefore, you must prove not only that the necessary facts are true but that, if those facts are true, there is a law that provides a court-enforced remedy for your damages resulting from the facts. 2. FLURRY OF MOTIONS Defendant files motions to dismiss, to strike, or for more definite statement and requires plaintiff to prove his complaint is legitimate. Flurry of motions is used by defendant to get rid of the case. If successful, defendant doesnt have to file an answer to plaintiffs complaint. A flurry of motions can even succeed where plaintiff was "in the right" if plaintiff failed to include in his complaint sufficient facts to state a cause of action, made statements that were impertinent or scandalous, or used such poor English as to make it impossible for the Court to understand his case. 3. ANSWER If the flurry of motions fails defendant must answer each allegation of plaintiffs complaint by admitting, denying, or claiming no knowledge. Defendant should answer no more than necessary to deny what plaintiff has alleged. If defendant has defenses, however, he should state these in his answer as affirmative defenses (or he may waive the right to raise the defensive issues at a later time). Now also is time for counterclaims or to bring in a third-party defendant, i.e., one whom the defendant wishes to blame for his having been sued in the first place. 4. DISCOVERY By using requests for admissions, requests for production, interrogatories, depositions, and Courts subpoena power facts are put on the courts record. During this critical phase, both sides attempt to make a record of the truth. This is the most important phase of every lawsuit. Failure to make an effective court record of the facts during the discovery phase is the single greatest cause of people losing otherwise winnable lawsuits! Be thorough! 5. TRIAL Trial happens if defendant fails to get plaintiffs case dismissed, or the parties fail to sooner establish facts by discovery to promote settlement. Successful litigants make a winning record before trial, using the procedures and tactics taught by our

simplified lawsuit tutorials. They establish winning facts and supporting law on the court record before trial begins. This is the riskiest phase of any lawsuit. It is recommended that you go to trial with the assistance of an experienced trial lawyer. Know what should be done whether you have a lawyer or not!

Angela 06/26/10 at 11:25 PM Ann 06/09/10 at 11:31 AM

Great info, Ann! Thanks much!

Show this Motion to your attorney. Hope this may help DEBTORS' OPPOSITION TO SUNTRUST'S MOTION FOR ORDER LIFTING AUTOMATIC STAY
UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division In Re: AYANNA K. CAMARA aka ROSIE P. HINTON and LARRY LEE Debtors -------------------------------------------------SUNTRUST MORTGAGE, INC. Movant v. AYANNA K. CAMARA aka ROSIE P. HINTON and LARRY LEE Debtors and KEVIN R. MCCARTHY Trustee Respondents No. 10-10856-RGM DEBTORS' OPPOSITION TO SUNTRUST'S MOTION FOR ORDER LIFTING AUTOMATIC STAY Debtors Ayanna K. Camara and Larry Lee respectfully oppose SunTrust's motion to lift automatic stay filed on March 25, 2010 and served upon the Debtors on April 2, 2010. The motion should be denied because, based on the record before the court, SunTrust is not a creditor of the instant bankruptcy estate and is not entitled to enforce the subject debt. In addition to SunTrust's lack of standing, its lift-stay motion fails to satisfy both procedural and substantive requirements applicable to this proceeding. BACKGROUND

Today, more and more homeowners turn to the bankruptcy system for protection when facing financial hardship and impending foreclosure. It is bankruptcy courts' responsibility to ensure that these debtors receive the full protection of the Bankruptcy Code, including the benefit of the automatic stay, for as long as the debtors are entitled to it. Unfortunately, contemporaneously with the increase in foreclosures, there is an increase in lenders and entities posing as lenders who, in their rush to foreclose, haphazardly fail to comply even with the most basic legal requirements of the bankruptcy system. It is the movant's responsibility to comply, and this Court's responsibility to ensure compliance, with both substantive and procedural requirements of the Bankruptcy Code, the federal rules, and other applicable law. See, e.g., In re Maisel, 378 B.R. 19 (Bankr. Mass. 2007); In re Foreclosure Cases, 2007 WL 3232430 (N.D. Ohio 2007); In re Foreclosure Cases, 521 F. Supp. 2d 650 (S.D. Ohio 2007). The most basic elements required to obtain relief from stay are that a movant (1) have the right to enforce the subject debt (2) in a way it is attempting to do so (through foreclosure), i.e., that the movant have standing to bring and prosecute a lift-stay motion. Id. In this case, SunTrust satisfies neither of these elements. SunTrust does not have the right to enforce the subject debt in the first place, much less to enforce it as a secured creditor by way of foreclosure. FACTS The Note and the Deed of Trust On February 18, 2006, Debtor Ayanna Camara executed and delivered to Synergy One Financial Services, LLC ("Synergy One") a 3-page, fixed-rate promissory note in the principal sum of $287,000.00 ("Note") secured by a Deed of Trust on real property located at 11977 Beaver Mill Lane, Manassas, VA 20112. Page 3 of the note contained Debtor Camara's notarized signature. Exh. A (copy of the Note as provided to Debtor at closing). Some time in August-September 2009, after receiving a notice that her home may be foreclosed upon, Debtor Camara apparently wrote to SunTrust or its attorneys requesting, inter alia, a copy of the note in SunTrust's possession. On September 26, 2009, Camara received from one of SunTrust's attorneys a 3-page copy of the note, attached hereto as Exh. B. The last page of the Note produced by SunTrust contained a stamp with words "Without Recourse / PAY TO THE ORDER OF / SunTrust Mortgage Inc. / Deborah P. Ellis, Vice President." Id. In other words, the note produced by SunTrust in September 2009 consisted of 3 pages

and contained a blank endorsement by SunTrust (thus evidencing a transfer of the note by SunTrust to another entity). As will be shown below, these 3 pages, with page 3 containing SunTrust's blank endorsement, are what the Court will see if it examines the original note. The Deed of Trust accompanying the Note was signed by Debtor Camara on February 18, 2005 and subsequently recorded in Prince William County, Virginia. The Deed of Trust lists Synergy One as the "Lender," and Mortgage Electronic Registration Systems, Inc. ("MERS") as "the beneficiary" of the Deed of Trust "solely as nominee for Lender and Lender's successors and assigns." See Exh. A to SunTrust's lift-stay motion [Dkt.29] (copy of Deed of Trust). The Deed of Trust was given by Debtor Camara and Joint Debtor Lee "to Robert T. Heltzel as [blank] and Eula R. Morgan as Trustee, for the benefit of [MERS] as beneficiary. Id. Upon information and belief, and a search of appropriate SEC filings, Synergy One does not fund mortgage loans it originates, but operates under a Flow Servicing Agreement or other similar agreement with another entity or entities that provide the actual funds used to fund mortgages originated by Synergy One. Because Synergy One uses someone else's funds, it charges, inter alia, a yield spread premium (YSP) that makes loans more costly to consumers and that violates federal consumer protection laws when undisclosed. Currently, neither Synergy One nor SunTrust owns the Note (and thus the Debtors' mortgage loan), as the loan is listed as having been owned by Fannie Mae. Exh. D (Fannie May loan database printout). Fannie Mae, in turn sells about 85% of all mortgages it owns to investors through the process known as securitization, and has most likely sold the Note to unknown third parties. See, e.g., James R. Barth et al., A Short History of the Subprime Mortgage Market Meltdown 5 (Milken Institute 2008), available at http://www.milkeninstitute.org/publications (showing percentage of securitized mortgages by issue date). Bankruptcy Events Some time on or after March 2, 2009, Debtors fell in default on their obligations under the Note. See Exh. C to SunTrust's lift-stay motion (copy of payment schedule). On February 4, 2010, Debtors filed a Chapter 13 petition. [Dkt.1]. On February 17, 2010, said

petition was converted into a Chapter 7 petition. [Dkt.13]. On March 25, 2010, SunTrust, through its attorneys, filed a Motion for Order Granting Relief From Automatic Stay. [Dkt.29]. Attached to that motion as an exhibit was a copy of the Note, allegedly in possession of SunTrust, which contained 4 pages (rather than 3 contained in the September 2009 version produced by SunTrust), with the third page not containing a blank endorsement by SunTrust, and the fourth page purporting to evidence a special endorsement of the Note from Synergy One to SunTrust. See Exh. B to SunTrust's motion to lift stay [Dkt.29] (copy of the Note). A copy of this version of the Note is also attached hereto as Exh. C for easy -5comparison and contrast with the original 3-page version produced by SunTrust prior to its filing of its lift-stay motion. The purported special endorsement is undated. Id. Further, there is no evidence that the alleged special endorsement is affixed to the original Note. On the contrary, circumstantial evidence (such as: (1) the special endorsement being on a separate page 4 even though there is still room on page 3 of the Note, and (2) the presence of a blank endorsement by SunTrust on Page 3 of an earlier version, and (3) the absence of the blank endorsement on page 3 of the later, 4-page version) strongly points to the conclusion that the 4-page version is not a copy of the original note, and that page 4 was added ad hoc to mislead the Court as to the actual right (or lack thereof) of SunTrust to enforce the note. See Exs. B & C. In light of the above facts, Debtors oppose SunTrust's lift-stay motion. For the reasons stated fully below, the lift-stay motion should be denied and applicability of Rule 9011 sanctions should be considered against SunTrust and its attorneys. ARGUMENT I. STANDARD OF LAW It is axiomatic that, in coming to federal court to enforce an alleged right, movant SunTrust must comply with the applicable procedures of the federal court and applicable law. In the words of this Court, "it is not sufficient that the debtor owes someone money; the issue is whether the debtor (and hence the bankruptcy estate) owes it to the party filing the proof of claim [or lift-stay motion]." In re King, No. 08-13152-SSM, (Bankr. E.D. Va. 2009) (emphasis in original). -6A. Law and Rules Governing Lift-Stay Motions Section 362(a) of the Bankruptcy Code provides that the filing of a bankruptcy

petition operates as a stay of collection and enforcement actions. 11 U.S.C. 362(a). The purpose of the automatic stay is "to give the debtor a breathing spell and to prevent a race by creditors against the debtor's assets until such time as the bankruptcy court can sort out the respective interests of the debtor, the bankruptcy estate, and creditors." In re Jones, 348 B.R. 715, 71718 (Bankr. E.D. Va. 2006). Section 362(d) allows the court, upon request of a "party in interest," to grant relief from the stay, "such as terminating, annulling, modifying, or conditioning such stay." 11 U.S.C. 362(d)(1). The court may grant relief "for cause, including the lack of adequate protection." Id. The court may also grant relief from the stay with respect to specific property of the estate if the debtor lacks equity in the property and the property is not necessary to an effective reorganization. 11 U.S.C. 362(d)(2). Pursuant to Local Rule 4001(a)-1(A), "[a]ll motions for relief from stay . . . are contested matters and are governed by FRBP 9014, 11 U.S.C. 362[] and [the] Local Bankruptcy Rules." Local Rule 4001(a)-1(D) provides that the following elements "must be included in a motion for relief from stay: . . . (4) a description of the security interest and its perfection; (5) a statement of the basis for the relief claimed . . . . The specific facts constituting cause shall be set forth if a motion is brought for cause." (Emphasis added.) Thus, this Court's rules of procedure require that each lift-stay motion contain certain indispensable elements, the absence of which should result in a denial of such motion, just like a complaint failing to state a claim would be subject to dismissal on a 12(b)(6) motion. -As noted above, lift-stay motions are contested matters governed by, inter alia, Rule 9014. Rule 9014, in turn, makes such motions subject to Rule 7017, which, in turn, incorporates Fed. R. Civ. P. 17 providing that an "action must be prosecuted in the name of the real party in interest." As this Court previously noted, "[i]t is axiomatic that in federal courts a claim may only be asserted by the real party in interest. Rule 7017 of the Federal Rules of Bankruptcy Procedure incorporates the provisions of Rule 17 of the Federal Rules of Civil Procedure. . . . The purpose of Rule 17 is to ensure that the person bringing a lawsuit has the right to enforce the asserted claim." In re Smith, 419 B.R. 622, 628 (Bankr. E.D. Va. 2008)

(citation omitted) (emphasis added) (finding purported creditor lacked standing to file proof of claim with respect to judgment rendered in favor of another party). Importantly, as a general rule, a person who is an attorney-in-fact or an agent solely for the purpose of bringing suit is viewed as a nominal rather than a real party in interest and will be required to litigate in the name of his principal rather than in his own name. See, e.g., In re Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008) (quoting 6A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d 1553). B. "Standing" And "Real Party In Interest" Since a movant seeking relief from stay is seeking to exercise a right stayed by 362(a), a movant for relief from stay bears the burden of proof that it has standing to bring the motion. See, e.g., In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009). "To obtain stay relief, each Movant must have standing, and be the real party in interest under Federal Rule of Civil Procedure 17." Id. at 398. "Standing" and "real party in interest" are concepts that are related but not identical. Standing encompasses two major components: -8"constitutional limitations on federal court jurisdiction and prudential limitations on its exercise," Warth v. Seldin, 422 U.S. 490, 498 (1975), while "real party in interest" is generally part of "standing," as discussed below. Constitutional standing concerns whether the plaintiff's personal stake in the lawsuit is sufficient to have a "case or controversy" to which the federal judicial power may extend under Article III. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). Prudential standing includes the idea that a party must assert its own claims, rather than another's. See, e.g., Warth, 422 U.S. at 499. The purpose of this rule is to require that an action be brought in the name of the party who possesses the substantive right being asserted under the applicable law. Smith, 419 B.R. at 629. Thus, the requirement of Fed. R. Civ. P. 17, made applicable to stay relief motions by Rule 9014, "generally falls within the prudential standing doctrine." In re Wilhelm, 407 B.R. at 398; accord. In re Taylor, 252 B.R. 346 (Bankr. E.D. Va. 1999) (discussing Rule 17 and "real party in interest" as part of "standing"); In re Dove, 199 B.R. 342 (Bankr. E.D. Va., 1996) (applying Rule 7017 and finding lack of standing); In Re Sposa, 31 B.R. 307 (Bankr. E.D. Va. 1983) (similar). Finally, to obtain relief in federal court, a party must meet both the constitutional

requirements (Article III) and the prudential requirements (including "real party in interest") of standing. See, e.g., Morrow v. Microsoft Corp., 499 F.3d 1332, 1339 (Fed. Cir. 2007). In the instant proceeding, Debtors challenge SunTrust's status as a party having constitutional standing under Article III or having prudential standing as a "real party in interest" under FRCP 17 in the context of a 11 U.S.C. 362 proceeding. -9II. SUNTRUST DOES NOT HAVE STANDING TO BRING THE LIFT-STAY MOTION. A. SunTrust Has Not Demonstrated That It Has The Right To Enforce The Note. Mortgage notes are commercial paper (whether negotiable or non-negotiable) covered by the Uniform Commercial Code as adopted by each of the Fifty States, including Virginia. Va. Code 8.1A-101 et seq.; First Nat. Exchange Bank v. Johnson, 355 S.E.2d 326 (Va. 1987) (applying Virginia's version of UCC to mortgage notes). When a party seeks to enforce a note against a debtor, the debtor not only has the right, but also has the responsibility to demand production of the note. See, e.g., Lambert v. Baker, 348 S.E.2d 214, 216-17 (Va. 1986) ("payor may protect himself by demanding production of the instrument and refusing payment to any party not in possession unless in an action on the obligation the owner proves his ownership; . . . it was [defendant payor's] responsibility to raise and establish this affirmative defense"). Because SunTrust is seeking to enforce the February 18, 2005 Note executed in favor of a different entity (Synergy One) and seeks relief from stay claiming a right to enforce the Note, it is necessary to determine whether SunTrust indeed has such a right. In doing so, we must look to the substantive law governing promissory notes. See, e.g., Butner v. United States, 440 U.S. 48, 54-55 (1979) (nature and extent of property interests in bankruptcy are determined by applicable state law). In Virginia, such law is Virginia's version of the UCC, codified in Va. Code 8.1A101 et seq. Under Virginia law, with exceptions not relevant here, a person is entitled to enforce an instrument, such as a promissory note, only if such person is "(I) the holder of the instrument, [or] (ii) a nonholder in possession of the instrument who has the rights of a holder." Va. Code -108.3A-301. A "holder," in turn, is defined as the "person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." Va.

Code 8.1A-201(b)(21). Further, "if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its endorsement by the holder." Va. Code 8.3A-201(b) (emphasis added). An "endorsement," in turn, is "a signature . . . that . . . is 'made on an instrument' . . . [and] a signature is 'made on a instrument' [if it is on] a paper affixed to the instrument." Va. Code 8.3A-204(a) (emphasis added). In other words, where, as here, an instrument (the Note) is payable to an identified person (Synergy One), its initial negotiation (transfer) requires an endorsement by that person as a holder in possession, and the "[e]ndorsement must be written . . . on the instrument or on a paper so firmly affixed thereto as to become a part thereof." Adams v. Madison Realty & Dev., Inc., 853 F.2d 163 (3d Cir. 1988). The above principles are well illustrated by a number of recent Bankruptcy decisions all across the country. For instance, a situation almost identical to the case at bar was considered in In re Wilhelm, 407 B.R. 392 (Bankr. Idaho 2009), where the bankruptcy court denied several liftstay motions, holding that none of the several banks posing as secured creditors actually had standing to enforce the mortgage notes against the debtors. Id. at 405. Just as in the instant case, each subject note in Wilhelm was payable to an entity other than the movant and was not properly endorsed to the movant either in blank or specially. Id. at 397. Applying Idaho's version of UCC (which is virtually identical to Virginia's), the Wilhelm court noted that to "qualify as holders, these Movants must possess an indorsed note." Id. at 402. The court then proceeded to determine that none of the movants could qualify as a holders or non-holders with rights to enforce because -11"none of these notes [had been] indorsed, either in blank or specially" and because the movants "failed to establish they possess the notes at issue." Id. at 402-03. Similarly, in In re Weisband, 4:09-bk-05175 (Bankr. Ariz., March 29, 2010), the court denied a stay relief motion where the movant, even though in possession of the note (unlike in the instant case), "failed to demonstrate that the Note is properly payable to [it]." Id. at *8 (opinion attached hereto as Ex. E). Importantly, the movant in Weisband (called GMAC) produced two versions of the note at issue, just like movant SunTrust in the instant case. The first version, submitted with GMAC's proof of claim, did not contain an endorsement by original payee (called GreenPoint) to GMAC. The second version, submitted with a

subsequent lift-stay motion, contained an extra page with a purported endorsement from GreenPoint to GMAC. Id. at *1-*2. Similar to the case at bar, the movant in Weisband claimed that "its status as a servicer, along with the Endorsement of the Note to GMAC and the assignment of the [deed of trust] from MERS to GMAC, demonstrated that it had standing to bring the Motion." Id. The court disagreed and denied stay relief. Id. Applying Arizona's version of the UCC, the Weisband court held that the evidence presented (including the two different versions of the note and an endorsement on a separate page) did not demonstrate the movant's standing. Id. at *4. The court noted that "for the Endorsement to constitute part of the Note, it must be on a paper affixed to the instrument. . . . Here, . . . the Endorsement is on a separate sheet of paper; there was no evidence it was stapled or otherwise attached to the rest of the Note." Id. The Weisband court then continued that, additionally, -12there is no proof that the allonge containing the special endorsement from GreenPoint to GMAC was executed at or near the time the Note was executed. Furthermore, the Endorsement does not have any identifying numbers on it, such as an account number or an escrow number, nor does it reference the Note in any way. There is simply no indication that the allonge was appropriately affixed to the Note. Id. at *5. The same reasoning applies to SunTrust's purported separate-page endorsement submitted in this case. It is simply not part of the original Note, and the two versions of the Note produced by SunTrust demonstrate so. Exs. B & C. More specifically, in light of the Virginia statutes and the case law discussed above, to establish its right to enforce the Note in the instant case, SunTrust would have to demonstrate that Synergy One endorsed the Note to SunTrust when (1) Synergy One was in possession of the Note and (2) on the Note itself or at least a paper affixed to the original Note. SunTrust's evidence before the Court fails to establish either of these two elements and actually points to the contrary. Specifically, the evidence shows that the purported endorsement on Page 4 was not made when Synergy One was a holder in possession of the Note, and that said claimed endorsement was never affixed to the original Note so as to become a part thereof. In particular, since the Note was sold to Fannie Mae, Ex. D, as also evidenced by SunTrust's blank endorsement on page 3, it defies common sense that Synergy One's purported

endorsement to SunTrust predating the sale to Fannie Mae would appear on some separate page 4 and after SunTrust's blank endorsement on page 3. The better interpretation of this "evidence" is that the Note was never properly negotiated from Synergy One to SunTrust, and that the claimed endorsement on Page 4 was done after-the-fact and solely to facilitate a fraudulent foreclosure of Debtors' home. Moreover, since SunTrust is likely no longer in possession of the original Note due to the Note's sale to Fannie Mae, Ex. D., the purported extra-page endorsement cannot be made part of the original Note. Nor can SunTrust claim an ownership interest in the Note after the Note's sale to Fannie Mae. Id. SunTrust's claims that it has possession of the Note and that the purported endorsement is part of the original Note therefore constitute fraud upon this court and may warrant, inter alia, Rule 9011 sanctions. See, e.g., In re Lee, 408 B.R. 893, 89697 (Bankr. C.D. Cal. 2009 (sanctions imposed where "original note has a [blank] indorsement by [movant]" while "the copy of the note attached to the motion for relief from stay omits this indorsement" so that the "motion did not disclose the sale of the note or the indorsement"). The Lee opinion is attached hereto as Ex. F. SunTrust's lift-stay motion should therefore be denied and SunTrust's purported claim with respect to Debtors' home should be disallowed under 11 U.S.C. 502(b)(1) as a claim that "is unenforceable against the debtor and property of the debtor, under any agreement or applicable law." Id. III. SUNTRUST'S LIFT-STAY MOTION FAILS TO ESTABLISH ABSENCE OF ANY EQUITY IN DEBTORS' HOME. Under 11 U.S.C. 362(g), the party requesting relief has the burden of proof on the issue of equity. Id. SunTrust, with respect to the grounds for relief from the automatic stay, has failed to produce sufficient evidence to carry its burden of proof on the issue as to the lack of equity in Debtors' home. On the contrary, SunTrust's motion sets forth the amount of debt (which SunTrust has no standing to collect, as discussed above) at $292,371.66, while setting forth the value of the home at $328,900.00. See SunTrust's lift-stay motion [Dkt.29] at 2 (unnumbered pages). Since 11 U.S.C. 362(d)(2) requires that there be no equity in the subject property in -14order for stay relief to be granted, and SunTrust failed to establish that this requirement is met, SunTrust's motion should be denied on this basis as well.

CONCLUSION Because SunTrust has failed to establish that it has the right to enforce the Note, much less enforce it by way of foreclosure, and because its lift-stay motion fails to carry the required burden of proof with respect to the issue of equity in Debtors' home, SunTrust's motion for relief from automatic stay should be denied. Respectfully submitted, /s/ Gregory Bryl Gregory Bryl, Esq. VSB# 45225 6560 Backlick Road, Suite 211A Springfield, VA 22150 703-861-1906 703-997-5925 fax help@bryllaw.com Attorney for Plaintiffs -15CERTIFICATE OF SERVICE I certify that on April 23, 2010, I caused a copy of the foregoing document, with exhibits, if any, to be sent via the Courts CM/ECF to the following: Edward S. Jones Shapiro & Burson, LLP 236 Clearfield Avenue, Suite 215 Virginia Beach, VA 23462 Kevin R. McCarthy 1751 Pinnacle Drive, Suite 1115 McLean, VA 22102 /s/ Gregory Bryl Gregory Bryl, Esq

Sylvia Sirmonss 06/09/10 at 12:45 AM

Well they are still at it in Indiana. Robbing the American people of their homes. We have been fighting since 2006 and are still at it. It started with Countrywide and has went to New Century and thru assignment has gone to Deutshe Bank, with Fraud all through the loan, and Appraisal's changed and forged. New Century is Bankrupt. The broker was employed thru Empire Equity of New Jersey, and on December 31, 2009 they went bankrupt. So who do they (Deutshe Bank) come after, The Sirmons because they didn't check the paper that they bought, and then sold to a German Bank in Pass thru Cettificates. Now we have asked for them to Produce the Documents and of course they sent copies, and not the Note it self. We wrote a letter of Recission and they ignored us, and we then hired an Attorney and she wrote a letter of Recission and they pretty much told her, we had no right to Recind. So now we are at Bankruptcy ourselves, and of course they have presented a Motion to Stay, so now we have to go at the end of this month to fight the Motion. We have been in our home since July 1, 2004, that is 6

years, and I don't want to move! Ann 06/08/10 at 04:56 PM

Case No WELLS FARGO BANK, N.A., Successor By Merger to Wells Fargo Bank Minnesota, National Association, Solely in its Capacity as Trustee, Under the Pooling And Servicing Agreement Dated September 1, 1999, Home Equity Loan Asset Backed Certificates, Series 1999-3, Plaintiff, vs. John Smith al., Defendants. / DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S "ORIGINAL NOTE" AND ALLONGES COMES NOW the Defendant, John Smith , and pursuant to Rule 1.140(f) moves this honorable Court to strike the documents placed into the court file on October 17, 2009 referred to by the Plaintiff as the "original note," and in support thereof states as follows: 1. When the Plaintiff initially filed its Complaint On July 25, 2008 it failed to support the Complaint with any original documentation, negotiable instrument, note or mortgage. Attached to the Complaint was a photocopy of the May 21, 1999 promissory note obligating the Defendant to the "original lender" APPROVED, and a photocopy of an alleged allonge assigningthe note from "Approved Residential Mortgage Inc." (hereinafter "APPROVED") to "NorwestBank Minnesota N.A. As Trustee For Provident Bank Home Equity Loan Trust 1999-3"(hereinafter "NORWEST"). There was no documentation filed with the complaint connectingthe note or mortgage to the named Plaintiff WELLS FARGO BANK, N.A. (hereinafter "WELLS FARGO"). The Plaintiff at that time sought reestablishment of the original note which it claimedwas "lost, destroyed or stolen." 2. On October 17, 2008 the Plaintiff filed a document into the case file purported to be the "Original Note" along with two allonges, one allonge being identical to the allonge filed with the Complaint, purportedly assigning the note to NORWEST, and the other allonge titled NOTE ALLONGE, which was not initially filed with the complaint, allegedly assigning an attached note from the Plaintiff WELLS FARGO to itself as trustee (hereinafter "WELLS FARGO allonge"). Copies of the note and allonges are attached as Exhibit B. 3. On February 10, 2009 the Plaintiff filed into the case file a copy of an Assignment of Mortgage which assignment was executed on August 20, 2004 and filed into the Hernando County official records on September 9, 2004, a copy of which is attached herewith as Exhibit A.

4. Regardless of the document's title, the said Assignment of Mortgage assigned both the note and mortgage constituting the subject or res of this action to The Provident Bank, Inc., reading as follows in pertinent part: "...APPROVED RESIDENTIAL MORTGAGE,...does convey, grant, bargain, sell, assign, transfer and set over to: THE PROVIDENT BANK, INC., ...The described Mortgage, together with the certain note(s) described therein with all interest, all liens, and any rights due or to become due thereon..." 5. On February 16, 2010 the Defendant inspected the alleged "Original Note" placed in the file and denies its authenticity and that of the purported signature thereon (see "Affidavit of Defendant, John Smith in Opposition to Plaintiff's Motion for Summary Judgment" filed concurrently herewith and incorporated herein by reference thereto. 6. On the same date the Defendant observed that while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges filed with the note were not attached affixed to the note prior to filing. 7. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp. Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. 673.2041(1) and Booker v. Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998): "The allonge, ultimately filed with the court had never previously been verified by affidavit or testimony, nor had it been provided to the court or to Booker in the form of an amended complaint. A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991)." 8. Furthermore, even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are contradicted and invalidated by competing evidence entered by the Plaintiff in the recorded Assignment of Mortgage (Exhibit A), showing another named signatory assigning both the note and mortgage to Provident Bank on August 20, 2004. This fact is corroborated by the aforementioned affidavit of title attorney Gregory D. Clark, Esq., filed concurrently herewith and fully incorporated herein by reference thereto. The allonges filed on October 17, 2008 are therefore not valid and must be stricken. 9. Furthermore the WELLS FARGO allonge filed on October 17, 2008 is a sham on its face as it allegedly assigned the res to itself, was not filed with the Complaint, and the Plaintiff can not be allowed to amend the record with exhibits that did not exist when the action was filed.

WHEREFORE, the Defendant, John Smith , respectfully moves this court to strike the alleged "original note" along with the allonges filed therewith on October 17, 2008. Respectfully submitted on this day of March, 2010. John Smith MEMORANDUM OF LAW Regarding the note and allonges in this instant case: while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges were not previously affixed to the note. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp. Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. 673.2041(1) and Booker v.Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998): [17] Contrary to other arguments now advanced by Sarasota, Inc., the trial court could not simply assume that Sarasota, Inc. held the note, or that the photocopy of an allonge, filed after the hearing on the motion for summary judgment, was of appropriate evidentiary value. Booker has correctly pointed out that in order to be the real party in interest on a promissory note, the plaintiff must be the holder of the note. See Troupe v. Redner, 652 So. 2d 394, 395-396 (Fla. 2d DCA 1995). Here, the allonge, attached to the complaint, and referred to by Sarasota Inc.'s affidavit in support of its motion for summary judgment, showed an assignment of the note from an institution other than Citizens and Builders. The allonge, ultimately filed with the court had never previously been verified by affidavit or testimony, nor had it been provided to the court or to Booker in the form of an amended complaint. A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991). [19] "An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof." Black's Law Dictionary 76 (6th ed. 1990). Florida's Uniform Commercial Code does not specifically mention an allonge, but notes that "for the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument

is part of the instrument. 673.2041(1), Fla. Stat. (1995)." Federal rulings on the Uniform Commercial Code (UCC) in regard to the negotiation and enforcement of negotiable instruments are applicable to this issue in that the UCC is in effect enacted into the Florida statutes. In Adams v. Madison Realty & Development Inc., 853 F.2d 163 (3rd Cir. 07/22/1988) the 3rd Circuit ruled as follows, with emphasis added: [32] Article 3 of the Uniform Commercial Code incorporated many portions of its predecessor, the Uniform Negotiable Instruments Law (NIL), drafted in 1896 by the National Conference of Commissioners on Uniform State Laws. By 1924, the NIL had been adopted in every state. See 2 F. Hart & W. WiIlier, Commercial Paper Under the Uniform Commercial Code 1.06, at 1-25 to -26 (1988). When it was transplanted into the 1956 draft of the Uniform Commercial Code, the indorsements provision was altered in only a minor respect. Section 31 of the NIL had specified that a proper indorsement "must be written on the instrument itself or upon a paper attached thereto." The Code substituted the words "so firmly affixed as to become a part thereof" for the phrase "upon a paper attached thereto."... [34] A holder in due course must take the instrument for value, in good faith, and without notice that it is overdue, that it has been dishonored, or that a claim or defense to it exists on the part of any person. See U.C.C. 3-302(1). But preliminarily, a person seeking to become a holder in due course must satisfy the threshold requirements for becoming a "holder," the critical issue on this appeal. [35] The Code defines a holder as one 'who is in possession of . . . an instrument . . . drawn, issued or indorsed to him or to his order." U.C.C. 1Defendant's Motion to Strike Note and Allonges - page 5 of 6 201(20). Mere ownership or possession of a note is insufficient to qualify an individual as a "holder." The instrument must be obtained through a process the Code terms "negotiation," defined as "the transfer of an instrument in such form that the transferee becomes a holder." U.C.C. 3-202(1). If the instrument is payable to order -- as is the case with the notes here -- negotiation is accomplished "by delivery with any necessary indorsement." Id. [36] In explaining the requirement that the indorsement be on or firmly affixed to the instrument, the Official Comment states that the Code "follows decisions holding that a purported indorsement on a mortgage or other separate paper pinned or clipped to an instrument is not sufficient for negotiation. The indorsement must be on the instrument itself or on a paper intended for the purpose which is so firmly affixed to the instrument as to become an extension or part of it. Such a paper is called an allonge." U.C.C. 3-202 Official Code Comment (3)... [38] The Code's requirement that an indorsement be "firmly affixed" to its instrument is a settled feature of commercial law, adopted verbatim by every American state, the District of Columbia, and the Virgin Islands. See 5 R. Anderson, Uniform Commercial Code 3-202:2, at 416 (3d ed. 1984) (citing codifications). With a unanimity unusual in decisional law, the directive has been faithfully observed. [39] The historical origins of the provision have been chronicled to the days of the Law Merchant. See Pribus v. Bush, 118 Cal. App. 3d 1003, 173 Cal. Rptr. 747 749 (1981). The practice of multiple indorsements which accompanied the growth

in commerce eventually led to acceptance of the use of allonges. See id.; Estrada v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 725 (Tex. Ct. App. - Houston [14th Dist.] 1977, writ ref'd n.r.e.). Even today, however, numerous jurisdictions permit allonges only where, because of multiple indorsements, no additional space for signatures remains on the negotiable instrument. See, e.g., Pribus, 173 Cal. Rptr. at 751; Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263, 187 S.E.2d 320, 321 (1972). But see Crosby v. Roub, 16 Wis. 616, 723-24 (1863) (allonge permitted even where space remains on note). [40] When the drafters of the Uniform Commercial Code replaced the term "attached" in the NIL with the phrase "firmly affixed," they intended to make the use of allonges more difficult. See Hills v. Gardiner Savings Institution, 309 A.2d 877, 880-81 (Me. 1973); Estrada, 550 S.W.2d at 728; 5 Anderson, supra, 3202:05. Courts have advanced two justifications for the firmly-affixed requirement. The California Court of Appeals reasoned that the provision serves to prevent fraud, remarking that a signature innocently placed upon an innocuous sheet of paper could be fraudulently attached to a negotiable instrument in order to simulate an indorsement. Pribus, 173 Cal. Rptr. at 750. But cf. Lamson v. Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 968 (1975) (allonge consisting of two legal sheets stapled to two small checks held valid because signing on checks valid themselves would have been impossible; "stapling is the modern equivalent of gluing or pasting"). [41] The affixation requirement has also been cited for its utility in preserving a traceable chain of title, thus furthering the Code's goal of free and unimpeded negotiability of instruments. Nearly a century ago, the Supreme Court of Georgia declared it "indispensably necessary" that negotiable instruments "should carry within them the indicia by which their ownership is to be determined; otherwise, their value as a circulating medium would be largely curtailed, if not entirely destroyed." Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 46 (1897). See also Crosby, 16 Wis. at 724 (permanently attached indorsements to instrument "travel with it wherever it might go"). Chancellor Hawkland writes that it would be "unreasonable to impose upon the indorsee the risk that the present holder or a prior holder had negotiated the instrument to someone not in the apparent chain of title by virtue of a separate document." 4 W. Hawkland & L. Lawrence, Uniform Commercial Code Series 3-202:05 (1984).

Ann 05/11/10 at 09:09 PM

MOTION FOR SANCTION GRANTED AGAINST LASALLE BANK THE MEDIATION TRAP In the 19th Circuit Court today defendants fighting their foreclosure were granted relief against LaSalle Bank for failure to have a lenders representative appear at Foreclosure Mediation with Settlement Authority. The court awared, as requested by Florida Defense Teams Motion, that LaSalle Bank will be compelled to reappear at mediation, at LaSalles expense, with a person who has full settlement authority as dictated by the Pooling and Servicing Agreement. This is what we now refer to as the mediation trap for the unwary lender. Foreclosure Admin Orders in Florida require all conditions of the order to be fulfilled before setting trial or summary judgment hearing. The pretend lender is now trapped

into a mediation that cannot be attended. It is settled law that appellate courts have held that FRCP 1.70 (mediation requirement) require a person to appear with full settlement authority. The PSA only gives limited authority to modify the note, and only to a specific servicer, which will not typically be the plaintiff in the case. Unless an amended 8k is filed, the PSA is the controlling document. Additionally the new Florida Supreme Foreclosure Mediation Order demands Plaintiff to submit original note, chain of Title, and submission of Pooling and Servicing agreement to Defendant before being released from the Order. If your case does not qualify for mediation you still can motion the court for mediation and split the Fee with Lender. Then the funs begin.... Ann 04/29/10 at 10:55 PM FLORIDA MOTION TO DISMISS WITH PREJUDICE IF THE CASE IS FILED AFTER SUPREME COURT ORDER FEB 11/2010 --------------------------------------------------------------------------

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION NATIONSTAR MORTGAGE LLC, CASE NO. lO-6330-CI-20 PLAINTIFF,

v.
CRAIG K. LUNT AND DOROTHEA C. LUNT, DEFENDANT. DEFENDANT'S MOTION TO DISMISS ACTIONIMOTION FOR MORE DEFINITE STATEMENT COMES NOW, the Defendants CRAIG K. LUNT and DOROTHEA C. LUNT (hereinafter "Defendants") by and through the undersigned counsel MATTHEW D. WEIDNER and respectfully moves this Court to DISMISS WITH PREJUDICE the above entitled civil action, pursuant to Rules 1.420(b) and 1.11O(b) Fla. R. Civ. P., and precedent case law, and in support thereof states: FACTS 1. This is an action for foreclosure of residential real property owned by the Defendants. 1. The named Plaintiff in this case is ABC (hereinafter

"Plaintiff'). The Plaintiff initiated this action when it filed its complaint on or about April 20. 2010. 2. The Plaintiffs complaint is devoid of any oath, affirmation, or verification statement which should state "under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief' as mandated by Fla. R. Civ. Pro. 1.11 O(b). 4. Upon information and belief, the Plaintiffs counsel deliberately chose to not include such an oath, affirmation, or verification statement in the complaint. 1. The Plaintiffs counsel has been warned repeatedly by defense attorneys across the state, including your undersigned counsel, of their failure to include this information in foreclosure complaints filed by their firm. Nevertheless, to date, the Plaintiffs counsel has refused to provide any reasonable justification, either in this case or in any case known to your undersigned counsel, for their failure to abide by the express mandate of Rule 1.11 O(b). 2. Moreover, upon information and belief, the Plaintiff itself has manifested to its counsel, either directly or indirectly, that counsel should not comply with Rule 1.11 O(b) for reasons herein unknown. STANDARD OF REVIEW 1. In ruling on a defendant's motion to dismiss, a trial court is limited to the four corners of the Complaint, and it must accept all the allegations in the Complaint as true. See Lutz Lake Fern Rd. Neighborhood Groups, Inc. v. Hillsborough County, 779 So.2d 380, 383 (Fla. 2d DCA 2000). 2. A motion to dismiss tests whether a plaintiff has stated a cause of action. Crocker v. Marks, 856 So.2d ] 123 (Fla. 4th DCA 2003). MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION

I. The Plaintiff's Complaint Should be Dismissed for Failure to Attach a Verified Complaint a. LegalStandards 9. Fla. R. Civ. Pro. 1.420(b) provides, in pertinent part, that "[a]ny party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court." Thus, any judgment which is not in compliance with the Florida Rules of Civil Procedure is null and void. 1. The dismissal of action or claim for failure of an adverse party to comply with the Rules of Civil Procedure or any order of the court operates as an adjudication on the merits. =="--'-'Airport Mini-Storage, 782 So.2d 983 (Fla. 3d DCA 2001). 2. In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), the Florida Supreme Court listed six factors which trial courts should use in determining whether to dismiss a case with prejudice and noted that "if a sanction less severe than dismissal with prejudicial appears to be a viable alternative, the trial court should employ such an alternative." ld at 818. The trial court is therefore allowed other measures of dispute resolution, such as dismissal without prejudice, should the court feel dismissal without prejudice is a more proper remedy. 3. Nevertheless, the six factors listed in Kozel are as follows: (1) whether attorney's disobedience was willful, deliberate, or contumacious; (2) whether attorney was previously sanctioned; (3) whether client was personally involved in act of disobedience; (4) whether the disobedience prejudiced opposing party; (5) whether attorney offered reasonable justification for noncompliance; and (6) whether the disobedience created significant problems of judicial administration. Id at 818. 4. The Florida Constitution gIves the Florida Supreme Court complete authority to promulgate or rescind the Florida Rules of Civil Procedure. Specifically,

Article V, Section 2(a) of the Florida Constitution provides that "[t]he supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought." See also Ser-Nestler, Inc. v. General Finance Loan Co. of Miami Northwest, 167 So.2d 230 (3d DCA 1964) ("Supreme Court is vested with sole authority to promulgate, rescind and modify the Florida Rules of Civil Procedure, which remain inviolate until changed by Supreme Court"), appeal dismissed 174 So.2d 35; State v. Battle, 302 So.2d 782 (3d DCA1974) ("language of the rules promulgated by the Supreme Court of Florida are binding upon the trial and appellate courts"); State v. Lvons, 293 So.2d 391 (2d DCA 1974) ("Supreme Court has right to adopt a rule at variance from its own precedents"). 14. On February 11,2010 by the Florida Supreme Court amended Fla. R. Civ. Pro. LllO(b) to read [w]hen filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document shall include an oath, affirmation, or the following statement: Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. Emphasis added. Therefore, mortgage foreclosure action filed after February 11, 2010 must be verified. 15. The Supreme Court noted that

[t]he primary purposes of this amendment are: (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded "lost note" counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 1], 2010). 16. Furthermore, Fla. Stat. 92.525 provides that
(1) When

it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:

(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or (b) By the signing of the \\-Titten declaration prescribed in subsection (2). (2) A written declaration means the following statement: "Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true," followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words "to the best of my knowledge and belief" may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration. See also Muss v. Lennar Florida Partners L L.P., 673 So. 2d 84 (Fla. 4th

DCA 1996). b. Argument 1. Here, the Plaintiff has failed to file a verified complaint. The instant action is one for foreclosure of residential real property which was filed on or about April 20, 20 I 0 and therefore squarely comes within the authority of the revised Florida Rule of Civil Procedure. Nevertheless, the Plaintiff's Complaint does not contain an oath, affirmation, or the verification statement as required by Fla. R. Civ. Pro. 1.11O(b). 2. A dismissal with prejudice is warranted based upon the six factors set forth by the Florida Supreme Court in Kozel have expressly been met. Specifically:
1. The

disobedience by the Plaintiff's counsel was willful and deliberate;

While Plaintiff's counsel may not have been expressly sanctioned for this act, Plaintiff's counsel has been warned by defense attorneys across the State, including your undersigned counsel, that their action was in violation of Rule
11.

1. 110(b);
Ill. Upon information and belief, the Plaintiff itself was involved in the disobedience as it, directly or indirectly, manifested to its counsel to avoid compliance with the Rule

The disobedience unduly prejUdices the Defendants through coercing them to spend time and resources on a claim which may prove frivolous or one which is otherwise not subject to adjudication;
IV.

v. The Plaintiff's counsel has not offered a reasonable explanation as to its noncompliance; and The disobedience creates significant problems to judicial administration as it
VI.

forces the courts to also expand time and resources on claims which may prove frivolous or otherwise not subject to adjudication. 19. The Plaintiff's complaint thus frustrates the purposes given by the Florida Supreme Court for the amendment to Rule 1.110(b) making dismissal with prejudice is warranted under the circumstances. WHEREFORE, because the Plaintiff has failed to file a verified complaint and because the six factors set forth in Kozel have been expressly met, the Defendants respectfully request that the Court dismiss with prejudice the instant case and any other relief the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by l'\.F'J-J.. U.S. Mail on this 'Mclay of April, 2010 to MICHAEL GELETY, Law Offices of Marshall C. Watson, P.A., 1800 N.W. 49th
Street, Suite 120, Fort Lauderdale, FL 33309. MATTHEW

Ann 04/27/10 at 01:08 AM

RESEARCH APPEAL COURT OPINION - CASE LAW IN YOUR STATE ------------------------------------------------------------Quote from http://www.jurisdictionary.com Many of you are losing your cases because you are arguing the law instead of citing written appellate court opinions that agree with you, authorities that control your trial judge! While your opinions are important to you, they don't count for much in court. The opinions that count in court (i.e., the ones that control your trial judge) are the written opinions of appellate courts that can reverse the decisions of your trial judge if the trial judge goes against them. Learn how to control your trial judge by researching and drafting written memoranda that cite appellate opinions the judge cannot ignore!

Ann 04/22/10 at 02:24 PM

IN THE CIRCUIT COURT OF THE 16th JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA Plaintiff name Plaintiff, CASE NO.: XXXXXXXX vs. Defendant name Defendants. _______________________________________/ DEFENDANTS MOTION FOR LEAVE TO FILE AMENDED ANSWER COMES NOW the Defendants, Your name and your name (Hereinafter referred to as Defendants) by and through the undersigned counsel, and hereby respectfully requests this Honorable court to grant leave, thereby permitting Defendants to file the attached Amended Answer, and states as follows: 1. The Plaintiff has filed a lawsuit against the Defendants, for what purports to be a foreclosure action. 2. Defendants filed pro se answers in the above-mentionedmentioned matter. 3. Defendants counsel has just been retained in this matter and by and through undersigned counsel, the Defendants requests leave to amend their answer. 4. It is in the interest of justice to permit Defendants to amend their Answer as it allows for the proper resolution of the dispute between all the parties. 5. Attached to this Motion to Amend the Answer is Defendants Amended Answer. MEMORANDUM IN SUPPORT FOR THE MOTION TO AMEND ANSWER AND COUNTERCLAIM Rule 1.190, Fla. R. Civ. P., requires that leave of court [to amend pleadings] shall be given freely when justice so requires, and that the court may permit a pleading to be amended at any time in furtherance of justice. Fla. R. Civ. P. 1.190(a), (e) (emphasis added). Indeed, Floridas well reasoned public policy overwhelmingly favors the liberal amendment of pleadings so that cases may be decided on their merits. Craig v. East Pasco Med. Ctr., Inc., 650 So. 2d 179 (Fla. 2d DCA 1995). All doubts must be resolved in favor of allowing amendment of pleadings. Thompson v. Publix Supermarkets, Inc., 615 So. 2d 796 (Fla. 1st DCA 1993). The failure to permit amendment constitutes an abuse of discretion

unless it clearly appears that the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Carter v. Ferrell, 666 So. 2d 556 (Fla. 2d DCA 1995). Leave to amend is especially appropriate when the amendment is based on the same conduct, transaction or occurrence as the original pleading the movant seeks to amend. Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000) (holding that proposed addition of claims not previously made would not prejudice defendants since the proposed amendment was filed prior to trial); Florida East Coast Railway Co. v. Ssanford Sshulman, 481 So. 2d 965 (Fla. 3d DCA 1986) (holding that trial court did not abuse its discretion in permitting plaintiff to amend his complaint after he had rested his case at trial); Passekoff v. Kaufman, 392 So. 2d 971 (Fla. 3d DCA 1981)(finding no indication that privilege to amend was being abused, where the motion to amend was filed before case was set for trial); Knipp v. Weinbaum, 351 So. 2d 1081 (Fla. 3d DCA 1977)(liberal construction of [Rule 1.190(a)] is particularly applicable in a situation where the amendment is based on the same conduct, transaction and occurrence upon which the plaintiff had brought his original claim), citing Turner v. Trade Mor Inc., 252 So. 2d 383 (Fla. 4th DCA 1971). Indeed, the true test for determining whether the proposed amendments should be allowed under Florida law is whether the pleading as amended is based on the same specific conduct, transaction or occurrence between the parties upon which the plaintiff tried to enforce his original claim. David Miller Distributing Company, Inc. v. Florida National Bank at Arlington, 342 So. 2nd 856 (Fla. 1st DCA 1977). For instance, in Pasekoff, 392 So. 2d 971, the Third District reversed the trial courts denial of the plaintiffs motion to amend the third amended complaint in an action to quiet title, where the proffered amendment involved the same transactions as the plaintiffs earlier pleadings, and the only amendment set forth an additional legal theory. See id. at 976. The Third District stated, in relevant part: Since all of the factual allegations had been revealed in earlier discovery, the [defendants] could not have been, and, indeed make no claim that they were surprised by the contents of the amendment. Furthermore, when the motion was made, the case had not yet been set for trial Finally, there was no indication that the privilege to amend had been or was being abused. Id. (emphasis added). Given that the conduct, transactions and occurrences forming the basis of the original pleadings filed by the Plaintiff is the same as the proposed amended pleadings, and the case is not set for trial an amendment is proper.

Plaintiff Will Not Be Prejudiced by Defendants Filing of the Proposed Amended Pleadings Moreover, Florida courts will not find the existence of prejudice, unless the amendment proposes new and different causes of action either during trial or after the trial has been completed. Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000). In Dimick, the court examined the definition of prejudice in light of a partys desire to amend a pleading, and stated: The cases have analyzed this prejudice element primarily in respect to the defendants ability to prepare for the new allegations prior to trial on the merits. For instance, in [numerous Florida cases] amendments were not allowed which proposed to add new and different causes of action either during trial or after the trial had been completed. The prejudice in adding new causes of action or claims in those cases was obvious since the defendants had already fully prepared for, and in some instances, had actually completed the trial when the plaintiffs sought to add different claims. 6. Plaintiff will not be prejudiced by the amendment of the pleadings and said amendment is proper in the interest of justice. WHEREFORE, the above-stated reasons the Defendants respectfully requests this Honorable Court enter judgment and allow the Defendants to serve the attached Answer upon the Plaintiff therefore amending the Defendants original Answer to reflect the proper pleading and award such other additional relieve as the Court deems just, necessary and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and complete copy of the foregoing has been furnished via facsimile 305-296-1580 and U.S. Mail to xxxx Esq., Post Office Box 370, Key West, Florida 33041 this ____day of February 2005. ___________________

Ann 04/12/10 at 06:31 PM

MOTION TO DISMISS - FLORIDA - IF THE FORECLOSURE LAWSUIT IS FILED AFTER FEBRURARY - DATE OF THE SUPREME COURT OPINION --------------------------------------------------------------------------------------------Thank you Mr. J. Ort Esq. 407-228-9770 Orlando Here is the text of an additional argument that you can add to your MTD. Ive raised it a few times now, and no mill has responded to it yet:

Defendant, ________, (_________) by and through undersigned counsel, and pursuant to Rule 1.140, Florida Rules of Civil Procedure, file this Motion to Dismiss Plaintiffs Complaint, and in support state:
1. On February 11, 2010, the Florida Supreme Court released SC091460 In re: Amendments to the Florida Rules of Civil Procedure.

2.

The opinion amends Rule 1.110(b) to require verification of mortgage foreclosure complaints involving residential real

property. The Court cited this basis:

The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
3. The Order requires the document filed to include an oath, affirmation or the following statement Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.

4.

The Order states [t]he amendments shall become effective immediately upon the release of this opinion.

5.

The Florida

Supreme Court

Manual for

Internal Operating

Procedures defines when an opinion is released. It provides:

Section V. Release of Opinions. A. Routine Release. Copies of opinions ready for release to the public are delivered to each justice no later than Friday at noon. At any time before 10:00 a.m., ET, the following Thursday, any justice may direct the clerk not to release an opinion. Unless otherwise directed, on Thursday morning at 11:00 a.m., ET, the clerk electronically releases the opinions that were furnished to the justices the preceding Friday. Publishers other than the Court's official reporter may receive copies at the rate of fifty cents per page, and all other interested persons may receive copies at the cost of one dollar per page. Opinions are posted on the Decisions and Rules Page of the Court's website located at http://www.floridasupremecourt.org/decisions/opinions.sht ml by noon on the day they are released. Fla. S. Ct. IOP Manual II
6. The subject opinion was posted on the Courts website, and released on February 11, 2010. (See attached Exhibit A).

7. The instant lawsuit was filed after February 18, 2010. 8. Plaintiff did not verify its pleading. Accordingly, Plaintiffs

complaint should be dismissed for failure to comply with Rule 1.110(b).

WHEREFORE, _________ respectfully request Plaintiffs' Complaint be dismissed with prejudice and for such other relief as this Court deems just and proper.

F. 407-264-6288

ortlawfirm.com

Shawn Alexander 04/06/10 at 08:33 AM

I noticed the document request Tamara Price employment history for the past 3 years. Can you provide me more information about if Ms. Price held her self out to be the V.P of Argent or another Bank? Do you have any information on a Manual Rivas signing on behalf of DB as authorized agent? If so,...can you send me a copy of the signature you have for him? My email address is invstigators@yahoo.com. Has DB answered discovery or are they giving you the run around?

Ann 03/21/10 at 01:03 PM

INTERROGATORIES SAMPLE -------------------------SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION ESSEX VICINAGE -----------------------------------------------------------------X Civil Action Deutsche Bank National Trust Company, As Trustee Of Argent Securities, Inc. Asset Backed Pass Through Certificates, Series 2004-PW1 Docket Number: XXX

REQUEST FOR INTERROGATORIES vs. XXX; John Doe, Husband Of XXX Avenue Rosedale, NY 11422 XXX Plaintiff(s),

Defendant(s)/Pro Se ------------------------------------------------------------------X REQUEST FOR DISCOVERY: INTERROGATORIES i). Defendant, XXX, serves these interrogatories on Deutsche Bank National Trust Company, as authorized by Case Management Order dated September 30, 2009, and by the Federal Rule of Civil Procedure 33. Deutsche Bank National Trust Company must serve an answer to each interrogatory separately and fully, in writing and under oath within 30 days after service to: XXX, XXX Ave., Rosedale, NY 11422.

INSTRUCTIONS ii). These requests for interrogatories are directed toward all information known or available to Deutsche Bank National Trust Company - not its lawyer, Ralph F. Casale, Esq. - including information contained in the records and documents in Deutsche Bank National Trust Companys custody or control or available to Deutsche Bank National Trust Company upon reasonable inquiry. iii). Each request for interrogatory is to be deemed a continuing one. If, after serving an answer, you obtain or become aware of any further information pertaining to that request, you are requested to serve a supplemental answer setting forth such information. iv). As to every request for interrogatory which an authorized officer of Deutsche Bank National Trust Company fails to answer in whole or in part, the subject matter of that request will be deemed confessed and stipulated as fact to the Court. v). Kindly attach additional sheets as required identifying the Interrogatory being answered. You have a continuing obligation to update the information in these Interrogatories as you acquire new information. If no such update is provided in a reasonable period of time that you acquired such information, it may be excluded at trial or hearing. DEFINITIONS vi). You and your include Deutsche Bank National Trust Company and any and all persons acting for or in concert with Deutsche Bank National Trust Company. vii). Document is synonymous in meaning and equal in scope to the usage of this term in Federal Rule of Civil Procedure 34(a) and includes computer records in any format. A draft or non-identical copy is a separate document within the meaning of this term. The term document also includes any tangible things as that term is used in Rule 34(a). viii). Parties. The term plaintiff or defendant, as well as a partys full or abbreviated name or a pronoun referring to a party, means the party and, where applicable, (his/her/its) agents, representatives, officers, directors, employees, partners, corporate parent, subsidiaries, or affiliates. ix). Identify (person). When referring to a person, identify means to give, to the extent known, the persons full name, present or last known address, telephone number, and when referring to a natural person, the present or last known place of employment. Once a person has been identified in compliance with this paragraph, only the name of that person needs to be listed in response to later discovery requesting the identification of that person. x). Identify (document). When referring to a document, identify means to give, to the extent known, the following information: (a) the type of document; (b) the general subject matter of the document; (c) the date of the document; (d) the authors, address,

and recipients of the document; (e) the location of the document; (f) the identity of the person who has custody of the document; and (g) whether the document has been destroyed, and if so, (i) the date of its destruction, (ii) the reason for its destruction, and (iii) the identity of the person who destroyed it. xi). Relating. The term relating means concerning, referring, describing, evidencing, or constituting, directly or indirectly. xii). Any. The term any should be understood in either its most or its least inclusive sense as necessary to bring within the scope of the discovery request all reasons that might otherwise be construed to be outside of its scope. REQUEST FOR INTERROGATORIES 1. Please identify each person who answer these interrogatories and each person (attach pages if necessary) who assisted, including attorneys, accountants, employees of third party entities, or any other person consulted, however briefly, on the content of any answer to these interrogatories. ANSWER: 2. For each of the above persons please state whether they have personal knowledge regarding the subject loan transaction. ANSWER: 3. Please state the date of the first contact between Deutsche Bank National Trust Company and the borrower in the subject loan transaction, the name, address and telephone number of the person(s) in your company who was/were involved in that contact. ANSWER: 4. Please identify every potential party to this lawsuit. ANSWER: 5. Please identify the person(s) involved in the underwriting of the subject loan. "Underwriting" refers to any person who made representations, evaluations or appraisals of value of the home, value of the security instruments, and ability of the borrower to pay. ANSWER: 6. Please identify any person(s) who had any contact with any third party regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, closing, or the receipt of money from a third party in a transaction that referred to the subject loan. ANSWER: 7. Please identify any person(s) known or believed by anyone at Deutsche Bank National Trust Company who had received physical

possession of the note and allonges, the mortgage, or any document (including but not limited to assignment, endorsement, allonges, Pooling and Servicing Agreement, Assignment and Assumption Agreement, Trust Agreement, letters or email or faxes of transmittals including attachments) that refers to or incorporates terms regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, or the receipt of money from a third party in a transaction, and whether such money was allocated to principal, interest or other obligation related to the subject loan. ANSWER: 8. Please identify all persons known or believed by anyone in Deutsche Bank National Trust Company or any affiliate to have participated in the securitization of the subject loan including but not limited to mortgage aggregators, mortgage brokers, financial institutions, Structured Investment Vehicles, Special Purpose Vehicles, Trustees, Managers of derivative securities, managers of the company that issued an Asset-backed security, Underwriters, Rating Agency, Credit Enhancement Provider. ANSWER: 9. Please identify the person(s) or entities that are entitled, directly or indirectly to the stream of revenue from the borrower in the subject loan. ANSWER: 10 Please identify the person(s) in custody of any document that identifies the loan servicer(s) in the subject loan transaction. ANSWER: 11. Please identify any person(s) in custody of any document which refers to any instruction or authority to enforce the note or mortgage in the subject loan transaction. ANSWER: 12. Other than people identified above, identify any and all persons who have or had personal knowledge of the subject loan transaction, underwriting of the subject loan transaction, securitization, sale, transfer, assignment or hypothecation of the subject loan transaction, or the decision to enforce the note or mortgage in the subject loan transaction. ANSWER: 13. Please state address, phone number, and employment history for the past 3 years of Tamara Price, Vice President, Argent Mortgage Company, LLC, designated as the Assignor of the mortgage loan to Deutsche Bank National Trust Company

(Assignment of Mortgage recorded in Essex County Registers Office on June 25, 2008). ANSWER: 14. Please state the date on which Argent Mortgage Company, LLC (originator) sold the mortgage loan to Ameriquest Mortgage Company (Seller and Master Servicer). ANSWER: 15. Please state the date on which Ameriquest Mortgage Company (Seller and Master Servicer) sold the mortgage loan to Argent Securities, Inc. (Depositor). ANSWER: 16. Did Argent Mortgage Company, LLC (originator) or previous servicers of this account receive any compensation, fee, commission, payment, rebate or other financial considerations from Ameriquest Mortgage Company (Seller and Master Servicer) or any affiliate or from the trust funds, for handling, processing, originating or administering this loan? ANSWER: 17. If yes, please describe and itemize each and every form of compensation, fee, commission, payment, rebate or other financial consideration paid to Argent Mortgage Company, LLC, the originator or previous servicers of this account by Ameriquest or any affiliate, or from the trust fund. ANSWER: 18. Please identify any party, person or entity known or suspected by Deutsche Bank National Trust Company or any of your officers, employees, independent contractors or other agents, or servants of your company who might possess or claim rights under the subject loan or mortgage and/or note. ANSWER: 19. Please identify the custodian of the records that would show all entries regarding the flow of funds for the subject loan transaction prior to and after closing of the loan. (Flow of funds, means any record of money received, any record of money paid out and any bookkeeping or accounting entry, general ledger and accounting treatment of the subject loan transaction at your company or any affiliate including but not limited to whether the subject loan transaction was ever entered into any category on the balance sheet at any time or times, whether any reserve for default was ever entered on the balance sheet, and whether any entry, report or calculation was made regarding the effect of this loan transaction on the capital reserve requirements of your company or any affiliate.)

ANSWER: 20. Please identify the auditor and/or accountant of your financial statements or tax returns. ANSWER: 21. Please identify any attorney with whom you consulted or who rendered an opinion regarding the subject loan transaction or any pattern of securitization that may have effected the subject loan transaction directly or indirectly. ANSWER: 22. Please identify any person who served as an officer or director with Deutsche Bank National Company or Argent Mortgage Company LLC commencing with 6 months prior to closing of the subject loan transaction through the present. (This interrogatory is limited only to those people who had knowledge, responsibility, or otherwise made or received reports regarding information that included the subject loan transaction, and/or the process by which solicitation, underwriting and closing of residential mortgage loans, or the securitization, sale, transfer or assignment or hypothecation of residential mortgage loans to third parties.) ANSWER: 23. Did any investor/certificate holder approve or authorize foreclosure proceedings on XXXs property? ANSWER: 24. Please identify the person(s) involved or having knowledge of any insurance policy or product, plan or instrument describing overcollateralization, cross-collateralization or guarantee or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan and the pool or aggregation was transmitted, transferred, assigned, pledged or hypothecated to any entity or buyer. A person who transmitted, transferred, assigned, pledged or hypothecated refers to any person who suggested, approved, received or accepted the composition of the pool or aggregation made or confirmed representations, evaluations or appraisals of value of the home, value of the security instruments, ability of the borrower to pay.) ANSWER: 25. Please identify the person(s) involved or having knowledge of any credit default swap or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the

composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan.) ANSWER:

Submitted by: XXX XXX Ave Rosedale, NY 11422

CERTIFICATE OF SERVICE I, I, XXX certify that on this 29th day of the month of October, 2009. 1. A true copy of the 10-page Request for Interrogatories was served on The New Superior Court of New Jersey, Chancery Division Essex Vincinage, at 212 Wasington Street, Eighth Floor, Newark, New Jersey. 2. A copy of the foregoing was mailed on , 2009 to Dated: Queens New York This _________ day of ___________ 2009 NY 11422 XXX XXX Ave Rosedale,

Ann 03/11/10 at 04:53 PM

REQUEST FOR PRODUCTION SUPERIOR COURT OF NEW JERSEY CANCERY DIVISION ESSEX VICINAGE X Civil Action

Deutsche Bank National Trust Company# as Trustee of Argent Securities, Inc. Asset Backed Pass Through Certificates, Series 2004-PW1 Docket Number: XXX REQUEST FOR Plaintiff(s), PRODUCTION OF DOCUMENTS vs. XXX; JOHN DOE, HUSBAND OF XXX, XXX Ave Rosedale, NY 11422 Defendant(s) Pro-Se X REQUEST FOR DISCOVERY: PRODUCTION OF DOCUMENTS XXX serves this Request for Production of Documents on Deutsche Bank National Trust Company, per Case Management Order dated September 30, 2009, and as authorized by Federal Rule of Civil Procedure 34. As required by this Order and Rule 34(b), Deutsche Bank National Trust Company must produce all requested documents for inspection and copying either as they are kept in the ordinary course of business or segregated according to each request. The documents must be produced within 30 days of service of this request at: XXX, XXX Ave, Rosedale, NY 11422. INSTRUCTIONS i). These requests for production of documents are directed toward all information known or available to Deutsche Bank National Trust Company not its lawyers with no firsthand knowledge of the records in this instant case including information contained in the records and documents in Deutsche Bank National Trust Companys custody, control or available to Deutsche Bank National Trust Company upon reasonable inquiry. Where requests for documents cannot be answered in full, they shall be answered as completely as possible. No answer or an incomplete answer shall be accompanied by a specification of the reasons for the lack of answer and the incompleteness of the answer and of whatever actual knowledge is possessed with respect to each unanswered or incompletely answered Request for Documents. Please state the name(s) of the senior officer(s) having firsthand knowledge of the facts herein and their title answering this request. ii). Each Request for Documents is to be deemed a continuing one. If, after serving an answer to any Request for Documents, you obtain or become aware of any further information pertaining to

that Request for Documents, you are requested to serve a supplemental answer setting forth such information. iii). As to every Request for Documents which you fail to answer in whole or in part, the subject matter of that document request will be deemed confessed and stipulated as fact to the Court. iv). For each document or other requested information that Deutsche Bank National Trust Company asserts is privileged or is not discoverable, identify that document or other requested information. State the specific grounds for the claim of privilege or other grounds for exclusion. v). For each document that Deutsche Bank National Bank Trust Company claims is not discoverable, state (1) the information required by the definition of document below, (2) the authors job title and address, (3) the recipients job title and address, (4) the name and job title of all persons to whom it was circulated or who saw it, (5) the name, job title, and address of the person now in possession of the document, and (6) the documents present location. vi). For a document that no longer exists or cannot be located, identify the document, state how and when it passed out of existence or when it could no longer be located, and state the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss of the document, and identify any other document evidencing the lost documents existence or any facts about the lost document. vii). As to every Request for production which you fail to answer in whole or in part, the subject matter of that production will be deemed confessed and stipulated as fact to the Court. viii). Answer each request for production separately by listing the documents and by describing them as defined below. If documents are numbered for production, in each response, provide both the information that identifies the document and the documents number. DEFINITIONS The following terms have the following meanings, unless the context requires otherwise: ix). Parties. The term plaintiff or defendant, as well as a partys full or abbreviated name or a pronoun referring to a party, means the party and, where applicable, {his/her/its} agents, representatives, officers, directors, employees, partners, corporate

parent, subsidiaries, or affiliates. This definition is not intended to impose a discovery obligation on any person who is not a party to the litigation. x). Person. The term person means any natural person, any business, a legal or governmental entity, or an association. xi). Document. The term document is synonymous in meaning and equal in scope to the usage of this term in Federal Rule of Civil Procedure 34(a) and includes computer records in any format. A draft or non-identical copy is a separate document within the meaning of this term. The term document also includes any tangible things as that term is used in Rule 34(a). xii). Communication. The term communication means the transmittal of information in the form of facts, ideas, inquiries, or otherwise. xiii). Identify (person). When referring to a person, identify means to give to the extent known the persons full name, present or last known address, telephone number, and, when referring to a natural person, the present or last known place of employment. Once a person has been identified in compliance with this paragraph, only the name of that person needs to be listed in response to later discovery requesting the identification of that person. xiv). Identify (document). When referring to a document, identify means to give, to the extent known, the following information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; (4) the authors, addressees, and recipients of the document; (5) the location of the document; (6) the identity of the person or entity who has custody of the document; and (7) whether the document has been destroyed, and, if so, the (a) date of its destruction, (b) reason for its destruction, and (c) identity of the person who destroyed it. xv). Relating. The term relating means concerning, referring, describing, evidencing, or constituting, directly or indirectly. xvi). Any. The term any should be understood in either its most or its least inclusive sense as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. xvii). And/Or. The connectives and and or should be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. xviii). Number. The use of the singular form of any word includes the plural and vice versa. xiv). Deutsche Bank National Trust Company includes any and all persons, all past and current employees and agents acting, for in concert or behalf of Deutsche Bank National Trust Company each of your directors, employees, fiduciaries, representatives and agents, of this allege plaintiff, and any individual over which this allege plaintiff, exercises the power to control and direct as well as

everyone acting for or on behalf of Deutsche Bank National Trust Company having firsthand knowledge. xx). Documents or documents means writings of every kind and character pertaining to the designated subject matter, including, without limitation and not limited to, the original and a certified copy, regardless of origin or location, of any regulation, court decision, book, pamphlet, periodical, letter, memorandum, file, note, diary, calendar, newspaper, magazine, statement, bill, invoice, order, policy, telegram, correspondence, summary, receipt, opinion, investigation statement or report, schedule, manual, financial statement, audit, tax return, articles of incorporation, bylaws, stock book, minute book, agreement, contract, deed, security agreement, mortgage, deed of trust, title or other insurance policy, report record, study, Note which indicates or constitutes evidence of debt, monetary instrument, contract for services or transfer of money between Plaintiff and any other person (natural or artificial), hand written note, map, drawing, working paper, chart, paper, draft, index, tape microfilm, e-mail, data sheet, data processing card, computer printout, computer program, check, bank statement, passbook or other written, typed, printed, photocopied, dittoed, mimeographed, recorded, transcribed, punched, taped, filmed, photographic or graphic matter, however produced, to which you have or have not had access. xxi). The term equity in the original note refers to the fact that not only does Deutsche Bank National Trust Company have physical possession of the original promissory note and custody like a fiduciary, but must have also vested financial interest in such: it legally belongs to Deutsche Bank National Trust Company. DOCUMENTS REQUESTED 1) Please identify the true owner of this obligation pursuant to 15 U.S.C. 1641(f)(2) and describe your relationship to this entity. RESPONSE: 2) Produce copies of complaints or petitions in any action filed by or against Deutsche Bank National Trust Company in which allegations are similar to those of this suit. RESPONSE: 3) Produce settlement agreements that Deutsche Bank National Trust Company has entered into with any party or non-party as a result of or relating to this instant case. RESPONSE: 4) For each payment received, produce a complete payment history, including but not limited to the dates and amounts of all

the payments that have been made on the alleged loan to date, how the payment was applied or credited (indicating the portion, if any, applied or credited to principal, interest, escrow or suspense, and any Servicer), the month to which the payment was applied and if interest and principle is calculated using an daily actuarial accounting method; RESPONSE: 5) Produce a certified copy of all Truth in Lending material disclosures provided at any purported closing and all written notices that informed Defendant of all effective dates concerning the transfer of the Note and Security Instrument pursuant to 12 USC 2605(c); RESPONSE: 6) Produce a certified copy of all letters, statements, documents, and material disclosures sent to Defendant by Servicers, SubServicers or others in your file or in your control or possession or in the control or possession of any affiliate, parent company, agent, Sub-Servicers, Servicers, attorney or other representative of your company; RESPONSE: 7) Produce all accounting ledger cards, journal entries and/or bookkeeping entries regarding the crediting of any and all Promissory Notes, money equivalents, or similar instruments, identified as or evidencing assets provided by and/or signed by the borrowers and consumers relating to this Account. RESPONSE: Produce a copy of all account receivables or payable, (including the amount, payment date, purpose, length of insurance term, and recipient of all expenses including appraisal fees, property inspection/preservation fees, force-placed insurance charges, title insurance, hazard insurance, legal fees, recoverable corporate advances) relating to this Account that Argent Mortgage Company, LLC, Argent Securities, Inc., Deutsche Bank National Trust Company and any other bank, depository or financial institution and/or mortgage servicers recorded in its accounting ledger card and bookkeeping journal entries since the origination of this loan; RESPONSE: 9) Produce the particulars of this Account setting forth each item recorded on the account since origination to include any and all Promissory Notes, money equivalents, or similar instruments, identified as or evidencing assets provided by and/or signed by the borrower and consumers on which Deutsche Bank National Trust Company or any other entity based an amount alleged due and owing, and the date that each item was delivered to the Plaintiff;

RESPONSE: 10) Produce an identification of the source of the funds used to fund the loan since its origination, including account name(s), number(s), and amount(s), including identification of the source of the funds Deutsche Bank National Trust Company used to purchase any and all Promissory Notes, money equivalents, or similar instruments, identified as or evidencing assets provided by and/or signed by the borrowers and consumers, and claims shall be due and owing, and the date the purchase was completed by Deutsche Bank National Trust Company or any subsequent Servicer; RESPONSE: 11) Produce certified copies, front and back, of all checks or wire transfer confirmation obtained or issued by Argent Mortgage Company, LLC and used to fund and purchase this obligation, including all copies of checks or wire transfers paid as third-party fees at the closing by Argent Mortgage, LLC; RESPONSE: Further, you are hereby requested to produce the following documents and information as related to public disclosure of securities under SEC rules and servicing of this obligation SEC File No.: 333-112237-01: 12) A certified copy of all recourse agreements (including, the Master Pooling and Servicing Agreements, the Mortgage Loan Purchase Agreement, the Trust Agreement, Servicer Agreement, Assignment and Assumption Agreement, SEC Forms 424(b)(5), 8K, 10K, 10D, REMIC, NIMS Insurer) between the Servicers, Argent Securities, Inc., Argent Mortgage Company, LLC, Ameriquest Mortgage Company, Deutsche Bank National Trust Company and the SPV, and any other entity who claims ownership in this obligation whereby the original promissory note agreement and collateral instruments were pooled and securitized into a mortgagebacked security in the structured finance transaction; RESPONSE: 13) Pursuant 17 CFR 240.12g5-1 provide the name of the record holders and/or the name of each person who is identified as the owner of such securities on records of security holders maintained by or on behalf of the issuer. RESPONSE: 14) A certified copy of the Registration Statement as that term is defined under 15 USC 77b(a)(8), i.e.; Form 8-A (short form) and Form 10 (long form) Registration Statements under the 1934 Act, Form S-1 and S-3 Registration Statement under the 1933 Act;

RESPONSE: 15) Any request for exemption or No-action letters from SEC with respect to their securities and all ACTS and certified copies of the application filed with the SEC for exempt status and the order issued by the SEC granting exempt relief from the appropriate provisions; RESPONSE: 16) If no registration statement pursuant to the 1933 Act is available or otherwise required, please provide a comprehensive description that meets the General Statement of Regulation S and satisfies the conditions applied to the Safe Harbor rule. RESPONSE: 17) The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) Pub. L. 97-248, 96 Stat. 324, a bearer debt security generally must be issued under arrangements reasonably designed to ensure that such obligation will be sold only to a person who is not a United States person and must satisfy certain other conditions identified in the Tax Code 163(f)(2)(B), and as such please provide: a) The Identify of all parties with ownership interest who have met the criteria as adopted by Treasury Regulation 1.163-5(c)(i)(D) TEFRA D and 1.163-5(c)(i)(C) TEFRA C RESPONSE: b) Certified copies of all statements on a U.S. Form W-8 or substitute thereto certifying the owners non-U.S. status where the obligations issued in registered form are not subject to the TEFRA rules and considered portfolio interest. RESPONSE: c) All information statements and returns filed with the IRS which identifies the name and address of all recipients of interest and original issue discount that meets the provisions of a U.S. obligor making payments to a foreign person under the Tax Code 871(a)(1), 881(a), 1441(a), 1442(a) and 6049 RESPONSE: 18) A description whether the Special Purpose Vehicle or the originator is the issuer as that term is defined under 15 USC 80a-2(a)(22) for registration purposes under the Investment Company Act of 1940; RESPONSE: 19) A description whether the pool or securities issued were required to register under the statutory or statistical definition of the 1940 Act? i.e., pursuant 17 CFR 270.3a-7 and if exempt, describe the characteristics that define the exception and avoids all

requirements; RESPONSE: 20) The allonge, front and back, affixed to my original promissory note with indorsements (including the dates endorsed) relating to and/or associated with this transaction, as outlined in the SEC Prospectus [Rule 424(b)(5)], Account No.: 0000882377-04-001138 filed on June 1, 2004 as follows: Argent Mortgage Company, LLC (Originator) sold the mortgage loan to Ameriquest Mortgage Company (Seller & Master Servicer) who then sold the mortgage loan to Argent Securities, Inc. (Depositor). RESPONSE: Please be aware that the information contained in or filed with a Registration Statement as that term is defined under 15 USC 77b(a)(8) shall be made available to the public under 15 U.S.C. 77f(d) including any amendment thereto and any report, document, or memorandum filed as part of such statement or incorporated therein by reference. Nothing in the above requested documentation is proprietary under SEC rules, and is needed to determine accurate assignee liability and any pecuniary interest of Servicers and/or Trustees. Failure to provide the requested information confirms willful deceit on the part of Deutsche Bank National Trust Company, has legal implications and application under 17 CFR 240.10b-5; (Rule 10b5), of the 1934 Act, and applies to everyone, including any reference to Internal Revenue Code for evasion or moneylaundering. Prepared and Submitted by: XXX XXX Avenue Rosedale, NY 11422 CERTIFICATE OF SERVICE I, XXX certify that on this 29th day of the month of October, 2009. 1. A true copy of the 12-page Request for Production Of Documents was served on The New Superior Court of New Jersey, Chancery Division Essex Vincinage, at 212 Wasington Street, Eighth Floor, Newark, New Jersey. 2. A copy of the foregoing was mailed on October 28 2009 to Ralph F. Casale, Esq., 290 Route 46 West, Denville, New Jersey 07834 by Express Mail No. XXX. Dated: Queens New York This _________ day of ___________ 2009 XXX XXX Ave

Rosedale, NY 11422

Ann 03/09/10 at 11:41 AM

IN THE CIRCUIT COURT OF THE 0000 JUDICIAL CIRCUIT IN AND YYYY COUNTY, FLORIDA A CIVIL ACTION CASE NO.: LASALLE BANK NATIONALASSOCIATION,AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES I LLC, ASSET-BACKED CERTIFICATES, SERIES 2006HE9, Plain~ vs, XXXX; et at Defendants). DEFENDANT XXXXS' EMERGENCY MOTION TO STOP FORECLOSURE SALE. TO VACATE F'0RECLOSURE COMPLAINT FOR FRAUD ON THE COlJRT AND MOTION TO STRIKE FINAL.JUDGMENT OF FORECLOSURE AND ORDER SETTING FORECLOSURE SALE AND MEMORANDUM OF LAW COMES NOW, the Defendant XXXX, by and through his undersigned counsel and :files this Motion and Memorandum of Law in the above-styled action and as grounds therefore ; requests the Court to Dismiss this action with prejudice pursuant to Rules 1.100(b). 1.14O(bX1X6) and (hX2) and 1.210(a) and J.54O(b) of the Florida Rules of Civil Procedure, and states: The Plaintiff filed their complaint on March 13, 2009, at the time the Plaintiff filed their complaint they did not have standing and made material misrepresentation in their pleadings. 2. Further the Plaintiff is a Trustee and does not and cannot own the mortgage as they are Acting on behalf of the investment trust in this ease. Several layers of fraud on the Court occurred in this instance and justice requires that the Court set the Order setting sale dale aside immediately and vacate the Final Judgment of Foreclosure dated December 12, 2001 which has listed a sale date of January 23~ 2009. In addition to not having standing. the plaintiff falsely alleged that the original promissory note was lost or destroyed subsequent to plaintiff's acquisition thereof' and that "plaintiff was in possession of the promissory note and was entitled to enforce it when loss of possession occurred" when in actuality they did not have an interest in the paper at the time of bringing this lawsuit and a purported assignment occurred after the lawsuit was filed.

The March .17. 2008 assignment of Mortgage (See Exhibit" A from Mortgage Electronic Registration Systems, Incorporated as Nominee for Encore Credit Corporation d/b/a EC-C Credit Corporation of Florida (MERS) to Plaintiff Lasalle Bank National Association. as Trustee for Certificate holders of Bear Stearns Asset Backed Securities I LLC, Asset Backed Certificates. Series 2006HE9 ("LBNA j clearly states that the assignment of the mortgage and the promissory note that are the subject of this foreclosure action were later filed after LBNA only as trustee filed a Notices of Lis pendens on March 13,2008 in the Circuit Court of the Fifth Judicial District Court in and for Hernando County, Florida (See Exhibit B . LBNA in its suit also does not indicate how it had any right or legal ability to initiate such an action and simultaneously claimed that "they had also lost or destroyed die Mortgage Note" which they did not own---in fact LBNA as nominal trustee for mortgage-backed securities has filed many foreclosure actions throughout the United States under false, deceptive and misleading representation without any legal standing to sue any party and its interest in the debt. These patterns represent a pattern of corrupt and illegal activity. 6.. Further, the Assignment itself is objectionable and gives rise to several issues of possible misrepresentation and fraud (See Exhibit "A OS). Liquenda Allotey has executed the assignment as Vice President ofMERS but he is not listed as an officer or director of MERS. (See oomposite Exht"bit "C"), Liqoenda Allotey has also executed Assignments as Vice President of other banks in the recent past (See Composite Exhibit "D"), Most peculiar, Allotey was Vice President of Washington Mutual in 2006, Vice President of MERS for this case and again on April 30, 2007, and Vice President of Washington Mutual again on May 17,2007. AUotey, in fact appears to works for FIS-LPS a mortgage Collection agency as evidenced by his Linkedl profile, and the Summit magazine (page 18)(See Composite Exhibit "E"). Additionally, as to the March 17.2008 assignment. it purportedly assigns the mortgage and the Promissory ' note from MERS in its corporate capacity as nominee (agent) directly to LBNA and not to the trust for which plaintiff acts as trustee. II. LBNA's pattern and practice of seeking and obtaining foreclosure judgments without a duly recorded assignment, without the evidence of a chain of assignment at time of filing suit constitutes a "false, deceptive, or misleading representation or means" in connection with 1he collection of debt, in violation of the Federal Fair Debt Collection Practices Ac~ 15 U.S.C. 1692e and that bas occurred in this case as well. The plaintiff also fails to attach a copy of the promissory note to its complaint. From the plaintiffs own filings in this foreclosure action, it is

established that a person other than the plaintiff LBNA was in filet the true owner of the claim at the time LBNA actually sued upon. and that the plaintiff is not and never was the real party in interest, and is not and C3ID1ot 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. 19!1.,S) The Plaintiff did not own or hold the subject promissory note at the time the Plaintiff LBNA filed this foreclosure action on March 13, 2008, and the plaintiff was fully aware of this Jack of ownership, and its lack of standing at the time of the commencement of this action. As stated Plaintiff LBNA and others like it have done this repeatedly, and even federal 00UIts are striking their predatory tactics for this very same reason as they never bad ownership and do not have the notes where they just claim they lost them. The plaintiff LBNA 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. In fact the assignment of the mortgage did not take place until March 17, 200~, several days after the filing of the complaint where they claim to already have "lost or destroyed the mortgage note". 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. The plaintiff in this case, still only a TRUSTEE for these securities, never had an interest in the mortgage or the promissory note, and never had standing to bring this action. In this case, the Court is without jurisdiction because the Plaintiff LBNA, a trustee, has perpetrated a fraud upon this Court in this action as set out herein. 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 complaint and the 1ater filed assignment. The defendant seeks a hearing to this matter to obtain an Order dismissing this foreclosure action filed by a trustee of a securitized mortgage pool 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 which is also supported by Florida Rule 1.S4O(b) even at this late date. Also defendant Puentes seeks an Order to strike the Final Judgment of foreclosure dated December 12, 2008 and order setting foreclosure sale set for January 23, 2009. .c;> 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 while claiming it bad already lost the mortgage note it did not own. Under Florida Rule 1.54O(b). there is no time limitation due to fraud and

misrepresentation in dismissing a summary judgment. 22. The plaintiff LBNA is not the "owner' of the ~ mortgage or the promissory note as the plaintiff alleges to this Court in its complaint and not to grant defendant Puentes relief would be most harmful to him as once the scheduled sale takes place, there is no further recourse while Plaintiff LBNA is not damaged as there is no beneficial interest for them to protect where delay would cause them harm. 23. The plaintiff's allegations that it "owned' "held' and "possessed' the mortgage and 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. In fact LBNA almost always claims they have lost their notes and cannot find them. 24. The plaintiff LBNA, only as trustee, establishes in its 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 for they had to assign the mortgage note at a later date, being March 17. 2008 {See Exhibit A j. Rhea v. Halkney, 157 So. 190, 193 (FIa. 1934) 25. "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 file party interposing it to be untrue.'" Rhea v. Holkney, 157 So. 190, 193 (FIa. 1934); O'Berry: Pearson. 186 80.430 (1939); Furstv. Blackman, 744 So.2d 1222{Fla. 4d1 DCA 1999), Reif Deve/opmen. Inc. v. Wachovia Mortg. Ca., 340 So.2d 1267 (FIa. 4 DCA 1976). The plaintiff's complaint is a sham. ---The integrity of the civil litigation process depends on the truthful disclosure of facts. Metropolitan Dade County v. Martinson. 736 8o.2d 794 (Fla. 3R1 DCA 1999), Andrews v. Palmus De Majorca Condo, 898 So.2d 1066 (Fla. 5* DCA 2005). plaintiffs actions undermine the integrity of this civil litigation process. 27. A trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action and strike an order when a plaintiff has perpetrated a fraud or made misrepresentations to the Court. .Arzuman v. Suad., 843 So.2d 950 (Fla. 411I DCA 2003), Piullno v. R.F. Concrete Constr . Inc; 904

So.2d 658 (Fla. 4110 DCA 2005) 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 where defendant asks this court for immediate relief and protection . .Andrews v. Polmas De Majorca Condo, 898 So.2d 1066 (FIa. 511I DCA 20(5) The plaintiff LBNA'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. 311l DCA 1999) The plaintiff's efforts to misrepresent ownership of the note are a mere pretense set up in bad faith and without color of filet. Reg Development, Inc v. Wachovia Supra and Furst v. BIac1mI01l. supra. 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. Stale Farm Mutual. Automobile Ins. Co., 84(j So.2d 572, 514 (Fla. ) 51 DCA 2003) Rule 1210(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. . The plaintiff meets none of these standing criteria. 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 rest exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v. Nopa! Lines, Ltd. et al, 462 So.2d 1178 (F1a. 3d DCA 1985) 34. No Florida case holds that a separate entity can maintain suit on a note payable to another entity unless the requirements of Rule 1210{a) of the Florida Rules of Civil Procedure and applicable Florida Law are met. Corcoran v. Brody, 347 So.2d 689 (Fla. 4th DCA 1977) 35. "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. 11. Corlandia Corp., 626 So.2d 1350, 1352 (Fla. 1993) 36. Defendant Puentes seeks a dismissal of the plaintiff's complaint on the basis of fraud on

the court, making numerous misrepresentations, 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 Corp. v. Weiss, 675 So.2d 235, 239 (FIa 4* DCA 1996) 37. Recent decisions of many courts from around the country from state courts, federal district courts and bankruptcy courts have caused actions such as the present to be dismissed for failure to state a claim and for ffailure to assert an injury in fact. Copies of these court orders, to date, can be presented to and filed with the Court and are incorporated herein. 38. As held in the In re Foreclosure Actions, the appropriate documentation required to ..... -: effectuate an equitable assignment and having legal standing to bring a foreclosure action must be through a trust and/or assignment documents executed before the action was commenced, OT both as circumstances may require. 2007 WL 4034554 at *1 (N.D. Ohio 2007). A trust cannot be effective until it bas been executed so the assignment documents that place property in trust would need to be executed before any action could be taken. Here. the assignment documents were not executed until after the action was brought in court.. This is a fraud upon the court and should be dismissed because the plaintiff's bad no legal standing to even bring the action for foreclosure at the time that they did. Where a plaintiff does not own a mortgage OT have any interest in the mortgage at the time of filing foreclosure action, the case must be dismissed for failing to comply with statutory requirements of standing. See Davenport v. HSBC Bonk,275 Micb.App. 344, 347-348, 739 N.W.2d 383, 385 (Mich.App..,2007) (Where the defendant did not own the mortgage or an interest in the mortgage at the time in which they commenced foreclosure proceedings. Quite simply, defendant did not yet own the indebtedness that it sought to foreclose. Because defendant lacked the statutory authority to foreclose" the foreclosure proceedings were void Db initio). See also Fleet Nal. Bonlc v. Nazareth.75 Conn.App. 791. 794-795. 818 A.2d 69, 71 (Conn.App..2003) (In this case. however, the plaintiff was never the holder of the note. The Plaintiff has failed to cite any

authority, nor has our research found any. to support its claim that it has standing to foreclose on the mortgage without ever having been assigned the note). See also m re Nosek,386 B1 374. 380 (Bkrtcy.D.Mass..2008) (Holding that those parties who do not hold the note or mortgage and who do not service the mortgage do not have standing to pursue motions for relief or other action arising :from the mortgage obligation. Schwartz, 366 B..R.. at 270). 40. Similarly. where action was commenced only a few days before execution of an assignment, courts have held that the Plaintiff has no standing to bring an action in court. So regardless of the amount of time between the action being filed and the execution of -~~the assignment, the assignment must be executed prior to any assignment. See Mongage Electronic Registration Systems. mers.. 17. Thompson, 2002 WL 521704 (Conn.Super 2002) (Plaintiff had no standing to bring foreclosure action, and thus, court lacked jurisdiction over action, where action was commenced at a time when Plaintiff had no interest in mortgage being foreclosed; defendant was served writ, summons and complaint three days before plaintiff was assigned mortgage to be foreclosed, and plaintiff offered court no evidence as to its legal or equitable right to bring action on or before date of service. C.G.SA 49-17). Florida Courts have also held in similar cases that an assignment must be executed before a party may file suit. See Progressive W.1ns. Co. 1'. McGrath Comollmily Chiropractic. 913 So.2d 1281, 1287 (Fla.App. 2d DCA 200s)(Where an insurance provider alleged that insurance benefits were assigned to it without producing a written instrument, then amended the claim with a written instrument dated six months after the filing of the suit, held that the provider lacked standing because there was no assignment at the time that the case was filed in court). Courts have held that a party's lack of standing is a defect that cannot be cured by acquiring the right of standing after action has already been filed. See Gwa1tnev of Smithfield. Ud. l'. CI}esgpeaJre BqyFound..lnc.. 484 us, 49, 69 (1987) (Scalia, J., concurring) ("Subject matter jurisdiction depends on the state of things at the time of the action brought). See Also Progressive Exp.ms. Co . 913 So.2d 1281. Compare to DasmoIlfl1estments. LLC v. RealtvAssoc. Fund m, LP.459 F. Supp. 2d 1294, 1302 (S.D. Fla., 2006)(Party suing on Promissory Note must be in actual possession of the original note to have standing). The plaintiff cannot in good faith deny knowledge of the judicial

findings of these many courts around the country, it is now even in newspapers and on television, and these widely publicized issues relate directly to the underlying standing problem that Plaintiff LBNA has in this case and other cases. 44. The Plaintiff LBNA is fully aware that the trustee never owns Promissory' notes as MERS once stated in the case of Mortgage Electronic RegistrLllioJJ Systems. Jnc. v. Nebrasm Department of Bonking, where MERS pronounced that as trustee of a pool of mortgage backed securities, It does not acquire 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 00 right to payments made to the Note." LBNA as Trustee, is just like MERS as explained in the Nebraska case that "it (the trustee) mere)y immobilius the mortgage lien while transfers of the promissory Notes and servicing rights continue to occur." Mor/gage Elec: RegisJration Sys., Inc. v. Nebraska Dept. a/Banking, 704 N.W.2d 714, 717 (Neb. 2005) As a result in the instant case, the plaintiff LBNA knew and was fully aware that it was asserting a right to foreclose as it was the owner and holder of tile subject mortgage and promissory note when the plaintiff knew that such right did not exist and die plaintiff fiu1her knew that it was not the owner or the holder of the subject mortgage note at 1he time the plaintiff filed its complaint herein alleging that it owns and holds and possesses the subject promissory note and mortgage. These allegations are utterly false and were knownpJaintiff to be false at the time the plaintiff filed this action on March 13~ 2008. In effect, plaintiff LBNA falsely represented the status of the debt, in particular, . that it was due and owing to plaintiff LNA at the time the suit was filed, and that LBNA was an innocent purchaser for value, when in fact, only an assignment for no value had not been accomplished days later on March 17.2008. All a total Sham. In Florida, the prosecution of' a foreclosure action is by the rightful owner of the mortgage and the holder of1be promissory note. At the time of this filing, LBNA has not been shown to have a connection to this matter. It is clear from the mortgage and the assignment later produced and attached h~. 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 Florida Rule of Civi1; Procedure 1.130(a) requires a plaintiff to attach copies of all bonds, notes, bills of exchange, contracts, aecouats, or documents upon which action may be brought to its complaint. Instead, even before the assignment, LBNA was already claiming to be the rightful owner and that the "mortgage note had either been lost, destroyed. and that plaintiff was unable to state the manner in which this occurred ... and after diligent search they were unable to obtain possession of the mortgage note:' LBNA

wants this court to believe that this is an isolated case involving the defendant Puentes, but in fact, they never owned the note and in many suits they bring, they make the same claims before the court often going unchallenged as they foreclosed on other's property. The Plaintiff also has 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. Fla. R. Cw. P. Rule 131O(b)provides that all Exhibits attached to a pleading shall be considered a part of the pleadings for all purposes. It appears on the face of the plaintiff's complaint and the documents attached thereto that the plaintiff is not the proper party to bring this action. Because the facts revealed by Plaintiffs exhibits are inconsistent with Plaintiff's allegations as to the ownership of the subject mortgage and note, those allegations are neutralized and Plaintiffs complaint is rendered objectionable. Greenwald 1'. Triple D Properlies.lnc.. 424 So.2d 185, 187 (FIa. 411I DCA 1983). When exhibits are inconsistent with the Plaintiffs allegations of material filed as to who the real party in interest is, such allegations cancel each other out. Fladellv. Palm Beach County Canvassing Board. 772 So.2d 11240 (Fla 2000); Greenwald 1'. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 411I DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So.2d 1114 (Fla. 3d DCA 1983).> -_.:, Lastly, Florida Rule 1..54O(b) also gives relief 1iom judgment, decrees or Orders if there is merit to the case, which there is in this case. In paragraph (b) on motion and upon such terms that are just. the court may relieve a party or a partys legal representative from a final judgment, decree, order, or proceeding for the following reasons: i, Mistake, inadvertence, surprise. or excusable neglect; ii. Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; and iii, Fraud (whether heretofore denominated intrinsic or extrinsic). Misrepresentation or other misconduct of an adverse party. The nde does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree

for fraud upon the court. From the plaintiffs own pleading. it is easy to see where there have been both fraud and misrepresentation in this case and other eases which LBNA and their attorneys are also involved. WHEREFORE, The Defendant, XXXX, prays that this Honorable Court grant a beariog (if necessary') and dismiss the Plaintiffs complaint and this action with prejudice; immediately strike the Final Judgment of Foreclosure and the order scheduling foreclosure sale dated December 12. 2008; award this defendant all other relief to which this defendant proves himself entitled to including but not limited to an award for reasonable and necessary attorney's fees; or in the alternative. issue a temporary restraining order to allow for a hearing on this matter as delay will not cause prejudice to non-standing party plaintiff LBNA but would severely harm defendant XXXX. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular Il.S, Mail and facsimile to ___________________. of January, 2009. Respectfully submitted. _;~ ;

Ann 03/05/10 at 10:17 AM

Foreclosure Case Dismissed --------------------------http://mattweidnerlaw.com/blog/wpcontent/uploads/2010/03/orderjirotka.pdf Foreclosure Case Killer- The Subpoena Duces Tecum February 24th, 2010 1 Comment Foreclosure The cat is way out of the bag. The lenders and banks that brought our country to the verge of collapse with fraud, misrepresentation

Ann 03/04/10 at 10:30 PM

and lies have now brought these same practices into local courtrooms. Every day judges who sign foreclosure orders are confronted with legal pleadings that do not conform to the most basic requirements of professional standards, but who really cares about thatthe real issue is that because the lenders cannot produce the evidence they need to proceed with their cases, they.produce the evidence they need to proceed with their cases. Ive previously posted about affidavit and assignment fraud..it comes in three areas: 1) False Affidavits of Service or False Affidavits That We Could Not Serve the Defendant. (See Sewer Service); 2)False Assignments of Mortgage (MERS assigns this Mortgage to Deutsche Bank who now has the right to foreclose); 3)False Affidavits of Amounts due and owing. A Subpoena for Every Foreclosure! Many times these documents are false on their face, but sometimes it takes a little digging to uncover the lies and misrepresentations.thats where a subpoena comes in. The following is text of a subpoena I use. Next is a Motion to Strike Affidavit. Now there are going to be foreclosures that are proper (such as when original lenders foreclose) but in virtually every other case (especially when a pretender lender is a Plaintiff), when pressed, youre going to find that the evidence submitted to the court is filled with mistakes lies or outright misrepresentations. Given what were learning about the scope of this problemsubpoenas should be dropped in every case for every fact witness, assignor, assignee and affiant. Please share results of your work with me! Together well take my beloved courts back. SUBPOENA DUCES TECUM FOR RECORDS WITH DEPOSITION STATE OF FLORIDA: TO: YOU ARE HEREBY COMMANDED to appear before a person authorized by law to take depositions at the law offices of MATTHEW D. WEIDNER, P.A., 1229 Central Avenue, St. Petersburg, Florida 33705, on MONTH DAY, 2010, for the taking of your deposition in this action and to have with you at the above time and place the following: 1. All books, papers, records, documents and other tangible things kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the complaint against Annabel E. Montgomery. 2. Any and all other books, papers, records, documents or tangible things that relate to HSBC BANK, USA, ASSOCIATION AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY LOAN TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATES claim against ANNABEL E. MONTGOMERY. 3. All employment records that exist between Christopher Spradling and any employer who has employed Spradling within the last three years including current employers. 4. All records that purport to give Christopher Spradling the

authority to sign or execute any documents on behalf of any person or entity. 5. All documents, records, books, evidence or instructions that you reviewed or relied upon in order to prepare the affidavit or assignment executed in this case. These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whoose name appears on this subpoena. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation. If you fail to: (a) appear as specified, or (b) furnish the records instead of appearing as provided above; or (c) object to this subpoena you may be in contempt of Court. You are subpoenaed by the attorneys whose names appear on this subpoena, and unless excused from this subpoena by the attorney or the Court, you shall respond to this subpoena as directed. DATED on XXXX X, 2010. FOR THE COURT Matthew D. Weidner, P.A. 1229 Central Avenue St. Petersburg, FL 33705 By: ________________________________ Matthew D. Weidner FBN: 0185957

ann 02/27/10 at 07:30 PM

Defendants Motion to Strike Affidavit of Christopher Spradling and for attorneys fees and costs COMES NOW, the Defendant Annabel E. Montgomery (hereinafter Defendant), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEYS FEES AND COSTS, pursuant to Fla. R. Civ. Pro. 1.510, and in support thereof states as follows: FACTS 1. This is an action for foreclosure of real property owned by the Defendant. 2. The named plaintiff in this case is HSBC BANK, USA, NATIONAL ASSOCATION, AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATE

(hereinafter Plaintiff). 3. On February 2, 2010 Plaintiff, by and through its counsel Florida Default Law Group, P.L. (hereinafter Florida Default Law Group), gave Notice of Filing of Affidavit as to Amounts Due and Owing and the accompanying Affidavit (hereinafter Affidavit). 4. The Affiant of the above-mention Affidavit was identified as Christopher Spradling (hereinafter Spradling). Spradling identified himself as a Foreclosure Manager for LITTON LOAN SERVICING, LP (hereinafter Litton). Litton, in turn, was identified as the servicer of the loan[Litton] is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.[1] 5. Spradling, based upon his personal knowledge, averred in the Affidavit that: (1) the Plaintiff or its assigns was owed a total of $408,809.30; (2) the Plaintiff was entitled to enforce the Note and Mortgage; and (3) Plaintiff was entitled to a judgment as a matter of law.[2] The Affidavit does not contain any mention as to who owes the Plaintiff the sum alleged save for one sentences line which cryptically state [s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit and a second which states I am familiar with the books of accountconcerning the transactions alleged in the Complaint.[3] Emphasis added. 6. Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiffs authorized agent. 7. Upon information and belief, Litton is simply a middleman of sorts who is responsible for the transfer of funds between the various assignees of the underlying Mortgage and Note and has no knowledge of the underlying transactions between the Plaintiff and Defendant. 8. Upon information and belief, Spradling, as employee of Litton and not the Plaintiff, has no knowledge of the underlying transactions between the Plaintiff and Defendant. LEGAL REASONING IN SUPPORT OF MOTION 1. I. Plaintiff Failed to Attach Documents Referred to in the Affidavit 1. a. Failure to Attach Documents Violates Fla. Stat. 90.901 (1989) Florida Statue 90.901 (1989) states, in pertinent part, that [a]uthentication or identification of evidence is required as a condition precedent to its admissibility. The failure to authenticate documents referred to in affidavits renders the affiant incompetent

to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that affidavitsshall show affirmatively that the affiant is competent to testify to the matters stated therein); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein.) Here, Spradling affirmatively states in the Affidavit that he is familiar with the books of account and have examined all books, records, and documents kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the Complaint.[4] Furthermore, Spradling averred that the Plaintiff or its assigns, is owed$408,809.30.[5] Nevertheless, Spradling has failed to attach any of the books, records or documents referred to in the Affidavit. In addition, Spradling does not meet the definition of custodian, which is a person or institution that has charge or custody (ofpapers). See Blacks Law Dictionary, 8th ed. 2004, custodian. By Spradlings own admission [t]he books, records, and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely.[6] Emphasis added. Thus, Spradling has only examined the books, records, and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep the books accurately and completely. In essence, Spradling averred to records which he did not submit nor could he testify for the authenticity of just as the affiant in Zoda did. Spradlings failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. Stat. 90.901 (1989), which renders him incompetent to testify to the matters stated therein as the Second District in Zoda held. Therefore, the Affidavit should be struck in whole. 1. b. Failure to Attach Documents Violates Fla. R. Civ. Pro. 1.510(e) Fla. R. Civ. Pro. 1.510(e) provides, in part, that [s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. Failure to attach such papers is grounds for reversal of summary judgment decisions. See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach

same to the affidavit.) As previously demonstrated, Spradling referred to books, records, and documents kept by Litton which allegedly concerned the transaction referred to in the Complaint against the Defendant. Nevertheless, as previously demonstrated, Spradling has not attached any of these books, records or documents. This failure to do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff. Therefore, the Affidavit should be struck in whole. 1. II. Affidavit Was Not Based Upon Spradlings Personal Knowledge As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that affidavits shall be made on personal knowledge); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005); In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). Additionally, a corporate officers affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co., So. 2d 1204, 1205 (Fla. 1st DCA 1986). The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief. Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)). This opposition to hearsay evidence has deep roots in Florida common law. In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capellos affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969). Thus, there is ample precedent for striking affidavits in full which are not based upon the affiants personal knowledge. Here, the entire Affidavit is hearsay evidence as Spradling has

absolutely no personal knowledge of the facts stated therein. As an employee of Litton, which purports to be the servicer of the loan, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant. Neither Spradling nor Litton: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant. In addition, the Affidavit fails to set forth with any degree of specificity what duties Litton performs for the Plaintiff, save for one line which states that Litton is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.[7] At best, Litton acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note. Litton is not the named Plaintiff in this case, nor does the Affidavit aver that either Spradling or Litton is the agent of the Plaintiff. Because Spradling has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement he gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $400,000) is, by its very nature, hearsay. The Florida Rules of Evidence define hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fla. Stat. 90.801(1)(c) (2007). Here Spradling is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely, the Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law.) At best, the only statements which Spradling can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note. The Plaintiff may argue that while Spradlings statements may be hearsay, they should nevertheless be admitted under the Records of Regularly Conducted Business Activity exception. Fla. Stat. 90.803(6) (2007). This rule provides that notwithstanding the provision of 90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is [a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as

shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. Emphasis added. There are, however, several problems with this argument. To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff. Furthermore, the books, records, and documents referred to by Spradling in the Affidavit (which, of course, were not attached) were kept by Litton, who cannot be a person with knowledge as Litton does not have any personal knowledge of underlying transaction between the Plaintiff and the Defendant. Finally, Litton, as the source of this information, shows a lack of trustworthiness because Spradling failed to attach the books, records, and documents to the Affidavit and because neither Litton nor Spradling have knowledge of the underlying transaction between the Plaintiff and the Defendant. Because Spradlings statements in the Affidavit are not based upon personal knowledge, they are inadmissible hearsay evidence. As no hearsay exception applies to these statements, the Affidavit should be struck in whole. 1. III. Affidavit Included Impermissible Conclusions of Law Not Supported by Facts An affidavit in support of a motion for summary judgment may not be based upon factual conclusions or opinions of law. Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001). Furthermore, an affidavit which states a legal conclusion should not be relied upon unless the affidavit also recites the facts which justify the conclusion. Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Rever v. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963). Here, the Affidavit contained conclusions of law which were not supported by facts stated therein. Specifically, Spradling averred that the Plaintiff was entitled to enforce the Note and Mortgage and that the Plaintiff was entitled to a judgment as a matter of law, two legal conclusions, but did not support this conclusion with statements which referenced exactly who the Plaintiff was entitled to enforce the Note and Mortgage against. In fact there is no mention of any of the parties in question save for one cryptic line in where Spradling states that [s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit and another which

states I am familiar with the books of accountconcerning the transactions alleged in the Complaint.[8] Nowhere in the Affidavit does Spradling state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does Spradling state that the Plaintiff is entitled to a judgment as a matter of law because the Defendant owes the Plaintiff money. At best the Affidavit accuses someone of owing the Plaintiff $408,809.30 and that the Plaintiff should be able to enforce some Note and Mortgage against that particular someone. By not clearly identifying the parties in question, Spradling has not adequately supported his two legal conclusions. Because the Affidavit contained impermissible conclusions of law which were not supported by facts stated therein, the Affidavit should be struck in whole. 1. IV. Sanction of Attorneys Fees is Appropriate Fla. R. Civ. Pro. 1.510(g) reads, in full, that [i]f it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys fees, and any offending party or attorney may be adjudged guilty of contempt. Emphasis added. The undersigned counsel has expended considerable time and resources preparing to defend against an affidavit which has, on its face, no basis in law. Both Florida Default Law Group and the Plaintiff both knew that Spradlings affidavit lacked authenticity and reliability yet still chose to file it with the Court. In addition, this is not Florida Default Law Groups first time filing affidavits in bad faith. Recently, the Bankruptcy Court for the Southern District of Florida sanctioned both Florida Default Law Group and its client, WELLS FARGO, $95,130.45 for false representations made in affidavits in that court as well as other bankruptcy courts in Florida. See In re: Fazul Haque, Case No. 08-14257-BKR-JKO (Order Granting Wells Fargo, N.A.s Motion for Relief from Stay and Imposing Sanctions for Negligent Practice and False Representations, Oct. 28, 2008). This is indicia of a modus operandi on Florida Default Law Groups part to present misrepresentations and false affidavits to the Court which make an award of attorneys fees and costs an appropriate sanction. WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING and enter an

ORDER granting ATTORNEYS FEES AND COSTS and any other relief the Court deems just and proper.

[1] See Affidavit As to Amounts Due and Owing, pg. 1. [2] Id, pgs. 1, 2. [3] Id. [4] See Affidavit As to Amounts Due and Owing, pg. 1. [5] Id, pg. 2.

Ann 02/27/10 at 11:41 AM

Know the Facts - Texas Pro Se Won ---------------------------------Quote from Msfraud.org (excerpt from pro se filed response) CAUSE NO. 096 239885 09 (Tarrant County Texas, 96th District Court) Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 Application for Order for Foreclosure 1. General Denial - Defendant hereby enters a general denial as permitted by Rule 92 of the Texas Rules of Civil Procedure, and requests that Plaintiff be required to prove by sworn affidavit and by a preponderance of evidence: a.) that their allegations are truthful representations; b.) that their action has merit; c.) that they are the true and lawful party in interest - the holder in due course of a valid debt obligation signed by Defendant Geoffrey Anson Wilner; d.) that their alleged evidence is not a product of or prelude to fraud, e.) and that they have legal standing to lawfully invoke the jurisdiction of this Honorable Court. 2. Plaintiff lacks standing to invoke TRCP 735 to foreclose Defendant hereby disputes the application of the Texas Rules of Civil Procedure, Rule 735, by the plaintiffs. Defendant alleges that there exists a genuine attempt by the plaintiffs to deceive. Defendant is supplying all the necessary Facts below (no.3 through 39 with detailed explanation of each offense) to prove the following: In an attempt to collect a non valid debt obligation, the plaintiffs committed irreparable fraud by [a] not filing the required

notice of assignments as required by the Texas Property Code. (See attached exhibit M Required Assignments chart - see details below) [b] manufacturing and filing a fraudulent notice of assignment and furnishing it as proof to the defendant of their rights as holder or holder in due course with rights to enforce (See attached exhibit P - package received from Codilis & Stawiarski, P.C. 8/20/09 - see details below). [c] deliberately withholding that same notice of assignment from this court to manipulate and deceive in an attempt to conceal from this court a fraudulent act (See attached exhibit T - package received from Codilis & Stawiarski, P.C. 9/9/09 - see details below). [d] not complying with the Fair trade Collections and Practices Act rules and regulations by not supplying the appropriate information to satisfy the dispute letter (See attached exhibit R - complaint to FTC and exhibit I Why the Original chart - see details below). [e] violating Florida Statutes Notary Public laws by creating a fraudulent document and filing it with Tarrant County land records office (See attached exhibit N - complaint to Florida notary section - see details below). [f] disregarding the rules and regulations of their Pooling and Servicing Agreement s and Prospectuses by filing inaccurate reports with the Securities and Exchange Commission (see details below) [g] ignoring The Securities Act of 1933 (see details below). [h] violating Texas Business and Commerce codes (see details below). [i] violating Texas Property codes (see details below). Plaintiffs request this Honorable Court grant foreclosure - despite clear and convincing evidence that Plaintiff is not entitled to the relief sought. That as a result of the plaintiffs fraudulent actions and inactions they have no standing to evoke the jurisdiction of this court and that they will never be able to obtain the jurisdiction of this court, therefore this Honorable Court lacks jurisdiction to hear this case at hand and should dismiss this case with prejudice. FACTS Plaintiff lacks standing as they are not holder in due course with rights to enforce. 3. Plaintiffs are claiming defendants indebtedness through a promissory note allegedly held by Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 and Deutsche Bank National Trust Company and are threatening to foreclosure on the defendant s property and primary residence. See attached exhibit A 4. A plaintiff bears the burden of demonstrating standing and must plead its components with specificity. Coyne, 183 F. 3d at 494; Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982). Should Plaintiffs fail to

prove this condition precedent, this Court ha s no discretionary function but to stop them at the gate and dismiss the action. 5. Proof of Signatures and Status as Holder in Due Course Defendant claims Plaintiffs are without legal authority to enforce foreclosure and so challenges the validity of the Defendants signature on the alleged debt obligation Pursuant to the Texas Business and Commerce Code Sections 3.308 (a) Proof of Signatures and Status as Holder in Due Course and 3.401 (a) (1) Signature relating relevant to the validity of the defendants signature on the alleged debt obligation being brought before this court; defendant does admit that he signed a debt obligation but the alleged debt obligation in question brought before this court is not the same debt obligation that the defendant entered into. See attached exhibit L 6. The alleged debt obligation in question, as identified by Codilis & Stawiarski, P.C. and being brought before this court by the plaintiffs, stating that American Home Mortgage Servicing Inc. and Option One Mortgage Company and Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 and Deutsche Bank National Trust Company are proper parties entitled to payments, is fraudulent, misleading and patently false. See attached exhibits A and C /D206085073 - Deed of Trust 7. Defendant denies that any obligation is owed to either Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. AssetBacked Pass-Through Certificates, Series 2006-W4 or Deutsche Bank National Trust Company. Validity of Fraudulently Created Documents 8. As noted in the transcript of the MEETING OF THE TASK FORCE ON JUDICIAL FORECLOSURE RULES November 7, 2007, (note pages 27, 28 and 33), as found on the Supreme Court of Texas web site (http://www.supreme.courts.state.tx.us/jfrtf/pdf/110707transcript. pdf), makes issue with, addresses and discloses the same fraudulent practices, Defendant alleges are taking place in this instant case. See attached exhibit G 9. Defendant has therefore been required to expend time and effort to defend an action that has no legal basis to support it. A Broken Chain of Assignments renders the Deed of Trust Void and Unenforceable under UCC 3-201, 3-204 & 3-302 and as such no triggering of the foreclosure clause in the Deed of Trust is possible.

The Prospectus 10. Prospectus Definitions : Trustee/Owner/Holder - As defined by the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 Prospectus ; (1) Deutsche Bank National Trust Company as Trustee is of Trustee status for the benefit of the Certificateholders, (2) the Certificateholders were the reputed Owner of this alleged instrument (3) and Deutsche Bank National Trust Company as Custodian for the benefit of the Certificateholders was the reputed Holder of the alleged debt obligation in question. See attached exhibit F. 11. Prospectus Definitions : Separate Entities - As defined by the Argent securities Inc. 2006- W4 Asset-Backed Pass- Through Certificates, Series 2006-W4 Prospectus , Argent Mortgage Co. (originator) and Argent Securities Inc. (depositor), are two separate entities, as well as Deutsche Bank National Trust Company as Trustee for Argent securities Inc. 2006-W4. AssetBacked Pass-Through Certificates, Series 2006-W4, and Deutsche Bank National Trust Company as Custodian for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4, are two separate entities. The Pooling and Servicing Agreement 12. Conveyance of Mortgage Loans and the Pooling and Servicing Agreement - Further, the Argent securities Inc. 2006-W4. AssetBacked Pass-Through Certificates, Series 2006-W4 Pooling and Servicing Agreement Section 2.01 Conveyance of Mortgage Loans, defines the process and provides the forms for enforcing foreclosure, by the Master Servicer, with very specific rules for recording assignments in the appropriate public office for real property records, from the Custodian to the Trustee and no such filings were recorded. 13. Validity of Unrecorded Instrument and the Pooling and Servicing Agreement - And pursuant to Argent securities Inc. 2006W4 Asset-Backed Pass-Through Certificates, Series 2006-W4 Pooling and Servicing Agreement Section 2.01 Conveyance of Mortgage Loans, the Master Servicer is required to record all notices of assignment to any of the above, and by failing to record such notices of assignment in Tarrant County to the alleged debt obligation in question, have created a defective chain of assignments, with blatant disregard of the Texas property Code Sec.13.001 (a) Validity of Unrecorded Instrument, as verified with a recent title search. See attached exhibits C, E, F and D

15. Validity of Unrecorded Instrume nt and Texas Law - Texas Property Code Section 13.001 (a) Validity of Unrecorded Instrument requires that each notice of assignment to the debt obligation in question referenced within the original deed of trust filed in Tarrant County records office # D206085073 on March, 26, 2006, be acknowledged, sworn to, or proved and filed for record as required by law. Research however, indicates that a notice of assignment from Argent Mortgage Co. to Argent Securities Inc. of the alleged debt obligation in question, should have been recorded in Tarrant County somewhere on or before the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 cutoff date, April 1, 2006, and no such records were found, as evidenced with the title search thereby exposing a blatant violation of this code. This fact along with all the above mentioned facts renders the alleged debt obligation in question, referenced within the original deed of trust filed with Tarrant County records office # D206085073 on March, 26, 2006, null and void. See attached exhibits C, H and M. Defective Notary and The Foreclosure Mill 16. Hes Just a Notary - The notice of assignment # D209045468recorded in Tarrant County on February 19, 2009 from Argent Mortgage Co. to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), in violation of Florida Notary laws, states that Brian Bly is the VICE PRESIDENT of CITI RESIDENTIAL LENDING is fraudulent. Evidence however has revealed in fact that Brian Bly is registered with the Florida Department of State Division of Corporations under Notary ID #1194546, Notary commission # DD691055, and lists Bryan Bly's current office address as the same as Nationwide Title Clearing, Inc., 2100 Alt 19 North, Palm Harbor, FL 34683. See attached exhibit J - Assignment Fraud. 17. The Foreclosure Mill - Bryan Bly has signed many other county record filings exposing some of Bryan Blys other bogus titles as well as his service as a Notary Public for Nationwide Title Clearing Inc. in violation of Florida Notary laws. Some of these other filings and a news publication describing this process are incorporated herein by reference for all purposes. See attached exhibits J and O. 18. Person Entitled to Enforce Instrument and Limited Power of Attorney - The Limited Power of Attorney assignment # D207376789 recorded in Tarrant County on October 22, 2007 (See attached exhibit K), as used and noted within the notice of assignment # D209045468 recorded in Tarrant County on February

19, 2009 from Argent Mortgage Co. to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006- W4 (See attached exhibit O), does not give Brian Bly, Option One Mortgage Company or Nationwide Title Clearing, Inc. the legal authority to execute any action or the right to file documentation that would affect the defendants right of ownership as noted in the Deed of Trust filed with Tarrant County records office # D206085073 on March, 26, 2006, and pursuant to the Business and Commerce Code Sec. 3.301 Person Entitled to Enforce Instrument , therefore is not a "Person entitled to enforce the alleged debt obligation in question. See attached exhibits J, O and K. 19. Nationwide Title Clearing Inc. - Brian Blys true place of employment at that time is Nationwide Title Clearing Inc., as a Notary Public, and the Limited Power of Attorney assignment #D207376789 recorded in Tarrant County on October 22, 2007, as defined within, fails to transfer power or title. Therefore the statement above is misleading, deceptive and fraudulent. See attached exhibit J 20. Lies and Deceit - On the notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), Bobbie Jo Stoltd (Florida State Notary Public, Commission # DD731909, indicated therein), states and swears that Brian Bly is personally known to me to be the VICE PRESIDENT of CITI RESIDENTIAL LENDING INC., AS ATTORNEY IN FACT FOR ARGENT MORTGAGE COMPANY, LLC. See attached exhibits J, O and K. 21. Fraudulent Filing and Florida Law - Bobbie Jo Stoltd, pursuant to Title X, Chapter 117.05 (5) Use of notary commission and 117.105 False or fraudulent acknowledgments of the Florida Statutes, by notarizing notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), may be found guilty of a felony of the third degree in the State of Florida. See attached exhibits J, O and K. 22. A formal complaint to the Florida Governors Office Notary Section has been filed. See attached exhibit N. 23. Fraudulent Filing of Financing Statement and Texas Law Under the Texas Business and Commerce code Sec. 9.5185 (a) (2) Fraudulent Filing and the Texas Penal Code Sec. 37.101 (a) (2)

Fraudulent Filing of Financing Statement, by notarizing notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed PassThrough Certificates, Series 2006- W4 (See attached exhibit O), Bobbie Jo Stoltd may be found guilty of a felony of the third degree in the State of Texas, thereby rendering the notice of assignment # D209045468 defective, invalid and void. See attached exhibits J, O and K. 24. Transfer of Instrument; Rights Acquired by Transfer - The fraudulent act of creating an unlawful document, such as the one created by the hands of Bryan Bly, has rendered this notice of assignment, # D209045468 (See attached exhibit O), defective and pursuant to the Texas Business and Commerce Code Sec. 3.203 (b) Transfer of Instrument; Rights Acquired by Transfer, the transferee, Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4, cannot acquire rights of a holder in due course and therefore does not have the rights to enforce. See attached exhibits J and O. The Fair Debt Collection Practices Act 25. Validation of debts - Defendant responded to plaintiffs NOTICE OF ACCELERATION, with requests to view the alleged original paper promissory note with all assignments and allonges showing a complete chain of assignments and to identify the true owner and holder of the alleged debt instrument. Plaintiffs reply is in violation of the Fair Debt Collection Practices Act, 809 (b) Validation of debts 15 USC 1692g, by their failure to include the information requested. (See attached Exhibits B, I and P) Plaintiffs are in possession of Defendants second letter informing them of their non compliance. (See attached Exhibit Q) 26. Furnishing certain deceptive forms and Federal Rules - Pursuant to the Fair Debt Collection Practices Act, and in violation of 812 Furnishing certain deceptive forms 15 USC 1692j, the notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. AssetBacked Pass-Through Certificates, Series 2006-W4 (see attached exhibit O), is being used to create the false belief that a lawful act is being executed by persons to collect a non-valid debt, as it was provided by the plaintiffs in response to the defendants original request seeking to view the alleged original paper promissory note with all assignments and allonges showing a complete chain of assignments and to identify the true owner and holder of the alleged debt instrument. See attached exhibits B, I and P

27. A formal complaint to the Federal Trade Commission has been filed and acknowledged. See attached exhibit R. The Texas Government Code Fraud upon the court 28. Fraudulent Document or Instrument - Defendant alleges Plaintiffs have intentionally failed to submit relevant foundational evidence to this court in an attempt to cover up the truth and to fraudulently invoke the jurisdiction of this Honorable Court. The notice of assignment #D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. AssetBacked Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), in violation of the Texas Government Code Sec. 51.901 Fraudulent Document or Instrument (c) (2) (A), (B) and (C), was included in the plaintiffs letter dated 08/20/2009 (See attached exhibit P). That letter was sent in reply to the defendants dispute letter dated 06/11/2009 (See attached exhibit B) as an attempt to mislead the defendant to believe the plaintiffs have rights to enforce the note as holder or holder in due course. That same fraudulent notice of assignment is not in the pleading that was submitted and filed with Tarrant County by the plaintiffs as CAUSE NO. 096 239885 09 APPLICATION FOR ORDER FOR FORECLOSURE. See attached exhibit T. 29. Pooling and Servicing Agreement and Conveyance of Mortgage Loans - As defined by the Argent securities Inc. 2006-W4 AssetBacked Pass-Through Certificates, Series 2006-W4 Pooling and Servicing Agreement, SEC. 2.01 Conveyance of Mortgage Loans, only the Depositor, Argent Securities Inc., was authorized to assign instruments to the Trusts Trustee, and Argent Mortgage Co. was no longer the holder or owner of the alleged debt obligation in question; Deutsche Bank National Trust Company as Custodian for the benefit of the Certificateholders for the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 became the reputed holder and the Certificateholders became the reputed owner of the alleged debt obligation in question on or before its official cut off date of April 1, 2006. See attached exhibits E, F and D. The Securities Act of 1933 - TITLE 15 - CHAPTER 2A - SUBCHAPTER III 30. Evidence of recording of indenture and The Securities Act of 1933 Under the Securities Act of 1933 - TITLE 15 - CHAPTER 2A SUBCHAPTER III - Sec. 77ccc Definitions :

(7) The term "indenture" means any mortgage, deed of trust, trust or other indenture, or similar instrument or agreement (including any supplement or amendment to any of the foregoing), under which securities are outstanding or are to be issued, whether or not any property, real or personal, is, or is to be, pledged, mortgaged, assigned, or conveyed thereunder. Under the Securities Act of 1933 - TITLE 15 - CHAPTER 2A SUBCHAPTER III - Sec. 77nnn Evidence of recording of indenture: (b) Evidence of recording of indenture - If the indenture to be qualified is or is to be secured by the mortgage or pledge of property, the obligor upon the indenture securities shall furnish to the indenture trustee - (1) promptly after the execution and delivery of the indenture, an opinion of counsel (who may be of counsel for such obligor) either stating that in the opinion of such counsel the indenture has been properly recorded and filed so as to make effective the lien intended to be created thereby, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to make such lien effective; and (2) at least annually after the execution and delivery of the indenture, an opinion of counsel (who may be of counsel for such obligor) either stating that in the opinion of such counsel such action has been taken with respect to the recording, filing, rerecording, and refiling of the indenture as is necessary to maintain the lien of such indenture, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such lien. In clear violation of the above, as evidenced with the title search, there was no opinion of counsel; no recording, and there was no filing at the Tarrant County land records office of the alleged debt obligation. (Exhibit C). 31. Person Entitled to Enforce Instrument and the Pooling and Servicing Agreement - As defined by the Business and Commerce Code Sec. 3.301 Person Entitled to Enforce Instrument, notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage Co. to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), is defective, as only Deutsche Bank National Trust Company as Custodian for the benefit of the Certificateholders for the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4, as defined by the Pooling and Servicing Agreement within, was the reputed holder of the alleged debt obligation in question, and as such was the only entity authorized to assign instruments to the Trusts Trustee, as Argent Mortgage Co. was not the holder of the alleged debt obligation in question. See attached exhibits E, F and D.

32. Holder in Due Course and the Pooling and Servicing Agreement - As defined by the Business and Commerce Code Sec. 3.302 (a) (1) Holder in Due Course, the notice of assignment #D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage Co. to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), is defective, as only Deutsche Bank National Trust Company as Custodian for the benefit of the Certificateholders for the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4, as defined by the Pooling and Servicing Agreement within, was the reputed holder of the alleged debt obligation in question, and as such was the only entity authorized to assign instruments to the Trusts Trustee, and Argent Mortgage Co. was not the holder in due course of the alleged debt obligation in question and therefore did not have the rights to enforce. See attached exhibits E, F and D. 33. The assignment of the mortgage, without an assignment of the debt, is a nullity - As there were no legitimate notice of assignments filed in the Tarrant County land records office of the alleged debt obligation in question to the Deed of Trust (# D206085073 recorded March, 26, 2006 in Tarrant County) (See attached exhibit C) to record the conveyances involved in the creation and subsequent marketing of the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006W4, a separation of the note and the mortgage resulted, thereby rendering said Deed of Trust a nullity. In Kirby v. Williams, 230 F.2d 330 (United States Court of Appeals Fifth Circuit) February 10, 1956. Rehearing Denied April 24, 1956 states: The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." Van Burkleo v. Southwestern, Tex. Civ. App., 39 S.W. 1085, 1087; Sheldon v. Sill, 49 U.S. 441 (1850) 49 U.S. 441: The assignment of the mortgage, without an assignment of the debt, is a nullity. 34. Presentment - The Texas Business and Commerce Code Sec. 3.501 (b) (2) (A) and (B) Presentment requires exhibition of the instrument for the purpose of enforcement (produce the original ink signed note), and as the plaintiffs were not the holder in due course of the alleged debt obligation in question and did not have the rights to enforce, presentation of a copy of the alleged debt obligation is a blatant violation, and thereby should be deemed inadmissible as evidence. 35. Customary Procedure - Introduction of a copy of the alleged debt obligation in question rather than the original ink-signed paper promissory note by the plaintiffs, using the excuse that it is of

customary procedure, is inadmissible. In United States of America v. Hibernia National Bank, 841 F.2d 592 96 A.L.R.Fed. 895, 5 UCC Rep.Serv.2d 1392, United States Court of Appeals, Fifth Circuit. April 5, 1988. Rehearing and Rehearing En Banc Denied May 9, 1988, the court stated: Hibernia's reliance on commercial custom is misplaced. Commercial custom does not apply where the U.C.C. provides otherwise. 36. Unclean Hands Doctrine - If said alleged debt obligation did exist and was presented to this court by the plaintiffs, then the Unclean Hands Doctrine would be used as a defense, as the plaintiffs are guilty of deliberately withholding a fraudulent notice of assignment from this court to conceal their criminal involvement in its fraudulent creation and use in an attempt to effect owner, holder or holder in due course status for the purpose of collecting a debt that the they do not have rights to. 37. Plaintiffs Codilis& Stawiarski, P.C. and American Home Mortgage Servicing Inc. and Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 and Deutsche Bank National Trust Company also have acted in a manner that is unlawful, oppressive, tainted with fraud and absent of evidence of vital facts. 38. Necessity of immediate relief to preserve assets , as set forth in the se complaints, without the assistance of this Court, the defendant will suffer immediate irreparable and substantial harm and injury as a result of the deliberate fraudulent actions of the Plaintiffs. 39. Due to the above mentioned facts, plaintiffs Codilis& Stawiarski, P.C. and American Home Mortgage Servicing Inc. and Option One Mortgage Company and Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 and Deutsche Bank National Trust Company or Deutsche and Bank National Trust Company as any other entity, do not have and never had standing to bring action before this court nor the authority to evoke the jurisdiction of this court. ================================ PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiffs be denied their request to foreclose. As the plaintiffs have failed to establish the authority of this court and as a result of the fraud that they have committed, they will never be able to obtain the jurisdiction of this court. Therefore this Honorable Court lacks

jurisdiction to hear this case at hand and at a minimum should dismiss this case with prejudice. Plaintiff respectfully requests this Court permanently restrain Plaintiffs and any other relief this Court deems equitable and just. ================================ ATTACHED EXHIBITS A. Codilis & Stawiarski Acceleration Letter B. letter to Codilis & Stawiarski - dispute C. title search D. record assignments (chart) E. pooling and servicing agreement excerpts F. prospectus excerpts G. MEETING OF THE TASK FORCE ON JUDICIAL FORECLOSURE RULES H. original enote (chart) I. why the original (chart) J. assignment fraud (other assignments - Brian Bly and Bobbie Jo Stoltd signatures etc.) K. limited power of attorney D207376789 L. signature (chart) M. required assignments (chart) N. complaint to Florida notary section O. notice of assignment D209045468 - Argent Deutsche P. letter (package) received from Codilis 8/20/09 Q. letter to Codilis 09/10/09 R. complaint to FTC S. Fraud or Fraudulent (chart) T. letter (package) received from Codilis 9/9/09 U. CD with prospectus and pooling and servicing agreement in full, all exhibits in .pdf ================================= Respectfully submitted by: __________________________________________ Geoffrey Anson Wilner - Defendant, pro se 6311 Avanti Dr. Arlington, Texas 76001 817 467 7478 CERTIFICATE OF SERVICE I hereby certify that a correct copy of the foregoing was served on the following counsel of record on September ___, 2009, via certified mail, return receipt. _________________________________ Geoffrey Anson Wilner Codilis & Stawiarski, P.C. 6311 Avanti Dr. 650 N. Sam Houston Parkway, East Arlington, Texas Suite 450 76001 Houston, Texas 817 467 7478 77060 Defendant, pro se ATTORNEY FOR THE PLAINTIFFS

Unquote

ann 02/24/10 at 10:47 AM Ann 02/19/10 at 07:18 PM

FREE APRIL CHARNEY AND OTHER FORECLOSURE DEFENSE MANUALS E-mail me at ocean11@the-beach.net

LEGAL MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT __________________________________________________ __

Atlantic City, NJ

WILLIAM J. BARNES, ESQ. (admitted pro hac vice) On the Brief

LEGAL ARGUMENT <!--[if !supportLists]-->I. <!--[endif]-->PLAINTIFFS MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AND SUMMARY JUDGMENT SHOULD BE ENTERED IN FAVOR OF THE DEFENDANTS ON THEIR COUNTERCLAIM Plaintiff has filed a Motion for Summary Judgment which relies on factually inapplicable decisional law; ignores the threshold issue of legal standing; fails to justify the striking of Defendants contesting Answer; and purports to be supported by a Certification of counsel for Plaintiff which is not made on personal knowledge and which is in fact based on incompetent hearsay. Plaintiff has failed to demonstrate the

absence of genuine issues of material fact and has failed sustain its burden to be entitled to the entry of summary judgment. Plaintiffs own submissions and admissions therein demonstrate that the Defendants are entitled to the entry of summary judgment on their Sixth Separate Defense and their Counterclaim as a matter of law, and pursuant to their Cross-Motion for Summary Judgment filed separately but simultaneously herewith.

Plaintiff relies on the holding of Somerset Trust Co. v. Sternberg, 238 N.J. Super 279 (Ch.Div. 1989) in alleged support of its request to strike the contesting answer of the Fairhurst Defendants. A close reading of the Sternberg opinion reveals that Plaintiffs reliance is misplaced, as the cited portion plainly states that the pattern involves a situation where the mortgagor fails to respond [to the summary judgment motion]. It is of record that the Fairhurst Defendants have responded to Plaintiffs summary judgment motion. The second cited portion of the Sternberg opinion states that many of the answers and defenses proffered are legally insufficient as they fail to challenge the essential elements of the mortgagees right to foreclosure and fail to interpose a validly recognized defense in foreclosure suits. It is of record that the Defendants have challenged the Plaintiffs very standing to foreclose and thus its right to seek the

remedy of foreclosure ab initio and as set forth more fully herein. Plaintiffs view of the scope of Chancery litigation is as wrongfully narrow as that found by the court in Leisure Technology-Northeast, Inc. v. Klingbiel Holding Company, 137 N.J.Super. 353, 349 A.2d 96 (N.J. Super A.D. 1975), wherein it was held that R.4:6-2 requires that every defense to an action legal or equitable, in law or in fact be asserted in an answer, and that one of the purposes of the adoption of the Judicial Article of the 1947 Constitution was to permit the resolution of all aspects of a controversy between parties to be resolved in a single forum, whether the claims be legal or equitable in nature. 137 N.J.Super. at 357. These defenses include what are termed as germane counterclaims in foreclosure actions. Such counterclaims are germane if they arise out of the subject matter of the mortgage transaction, and discovery is permitted on such counterclaims. 137 N.J.Super. at 358 (reversing order striking defendants first affirmative defense, severing counterclaim, and transferring to Law Division).

The sixth Separate Defense of the Defendants states that Plaintiff was not, at the time of the filing of the Complaint and in view of the admissions in paragraph 4(a) thereof, in possession of any legal interest in the mortgage sufficient to institute a foreclosure. The First Count of the Counterclaim of the Defendants requests the entry of a Declaratory Judgment for dismissal of the foreclosure complaint based

on the absence of the necessary and proper proofs to satisfy the legal standing requirements to institute a foreclosure. The Second Count of the Counterclaim requests the entry of Injunctive Relief prohibiting the entry of a judgment of foreclosure and the sale, conveyance, or transfer of the real property the subject of this action based on the lack of legal standing of the Plaintiff/Counter-Defendant to institute a foreclosure. The Sixth Separate Defense and Counterclaim are germane to the foreclosure action as they arise out of the subject matter of the mortgage transaction, going to the threshold issue of the legal standing of the Plaintiff to institute this foreclosure action. As such, the contesting Answer should not be stricken; discovery should be permitted; and Plaintiffs Motion for Summary Judgment should be denied.

Plaintiff has failed to cite a single case which precludes the assertion of an equitable counterclaim for declaratory and injunctive relief which challenges the very legal standing of a plaintiff to institute a foreclosure action, and has also failed to cite a single case which permits a plaintiff to institute a foreclosure action when it has no legal interest in the mortgage and note at the time of the filing of the foreclosure action. Plaintiffs Motion for Summary Judgment should thus be denied as being unsupported by any decisional law on the specific facts of this case.

The Courts of New Jersey have apparently not addressed the specific factual situation in this case. In instances where there is no New Jersey case on point, the Courts of New Jersey have utilized opinions from other jurisdictions for guidance. (See, e.g., Greate Bay Hotel & Casino, Inc. v. City of Atlantic City, 264 N.J.Super. 213, 217-218, 624 A.2d 102 (N.J. Super L. 1993)(analysis of treatment of business trusts as distinct legal entities by various other jurisdictions including California, New York, and Michigan where no New Jersey case explicitly dealt with types of trusts in case); Gregory v. Allstate Insurance Company, 315 N.J.Super. 78, 82-83, 716 A.2d 573 (N.J.Super.L. 1997)(analyzing split of authority in jurisdictions which considered issue of whether victim of unintentional auto collision was covered by uninsured motorist coverage). The Courts of the State of New York have been repeatedly presented with the legal standing issues in foreclosure actions raised in this case, and have consistently held that when there is no proof that the foreclosing party had the requisite legal interest in the mortgage and note at the time that it filed the foreclosure action that dismissal of the action was proper.

In mortgage foreclosure actions (as in all actions), the foreclosing party must have standing to bring the action:

Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is blocked, the pathway to the

courthouse is blocked. Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigants request.If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. IndyMac Bank v. Bethley, 2009 NY Slip Op 50186(U)(N.Y.Sup.Ct. 2/6/2009), citing Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]; Caprer v. Nussbaum, 36 AD3d 176, 181 [2d Dept 2006]; Stark v. Goldberg, 297 A2d 203 [1st Dept 2002].

Where there is no evidence that the plaintiff, prior to commencing a foreclosure action, is the holder of the mortgage and note or took physical delivery of the mortgage and note or that same were conveyed by written assignment, the plaintiff did not have standing to institute the action. New Century Mortgage Corporation v. Durden et al., 2009 NY Slip Op 50175(U) (N.Y. Sup. Ct. 2/2/09), citing Deutsche Bank Trust Co. Ams. V. Peabody, 20 Misc. 3d 1108A (Sup.Ct. Saratoga County 2008) and Countrywide Home Loans, Inc. v. Taylor, 17 Misc. 3d 595 (Sup.Ct. Suffolk County 2007) and additional cases cited therein.

A plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest, and where an assignment of the mortgage post-dates the filing of the complaint, the plaintiff does not have the requisite ownership interest at the time of filing. As a foreclosure of a mortgage may not be brought by one who has no title

to it and absent a legally effective transfer of the debt, the (post-filing) assignment of the mortgage is a legal nullity. U.S. Bank National Association v. Kosak et al., 2007 NY Slip Op 51680(U)(N.Y. Sup.Ct. 9/4/2007), citing Katz v. East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998] and Kluge v. Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dpet 1988].

In Bethley, the Court held that Plaintiff IndyMac lacked standing to foreclose on the mortgage and note as it did not own the mortgage and note on the day that the Complaint was filed. IndyMac, as Plaintiff has done here, attempted to assign the mortgage and note two days after filing the foreclosure action. In the instant case, Plaintiffs own submissions demonstrate that Plaintiff did not own the note and mortgage on December 24, 2007 (the day that the Complaint was filed), having only [purportedly] come into such ownership, at the earliest, some three days thereafter, that being on December 27, 2007 by virtue of the very Assignment attached as Exhibit B to the Plaintiffs moving papers. As the subject Assignment was not even recorded by the Atlantic County Clerk until almost a year later on November 5, 2008, Plaintiff arguably had no interest in the mortgage until late 2008.

As such, Plaintiff lacked legal standing to institute this mortgage foreclosure action ab initio. This issue of material fact warrants not only the denial of Plaintiffs Motion for Summary Judgment, but also supports

the entry of summary judgment in favor of the Fairhurst Defendants on their Sixth Separate Defense and their Counterclaim.

In addition to the disputed issues of material fact set forth in the Defendants Statement of Material Facts filed separately but

simultaneously herewith, the Defendants have propounded a First Request for Production, First Request for Admissions, and First Set of Interrogatories upon Plaintiff, none of which have been responded to as of the date of this Response. These discovery requests seek information as to the Plaintiffs legal standing including the chain of title to the mortgage and note which are factual issues material to not only the Plaintiffs claim but also the Counterclaim of the Defendants. As there is a dispute as to the absence of factual issues at this early stage of the proceedings where the case is not fully developed, summary judgment is inappropriate. Velantzas v. Colgate-Palmolive Company, Inc., 109 N.J. 189, 193, 536 A.2d 237 (N.J. 1987): Generally, we seek to afford every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case, and When critical facts are peculiarly within the moving partys knowledge, it is especially inappropriate to grant summary judgment when discovery is incomplete. 109 N.J. at 193, citing United Rental Equip.Co. v. Aetna Life and Casualty Ins. Co., 74 N.J. 92, 99, 376 A.2d 1183 (1977)(citing Robins v. Jersey City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957), and Martin v. Educational

Testing Serv., Inc., 179 N.J. Super 317, 326, 431 A.2d 868 (Ch.Div.1981).

In cases where a suit is in an early state and not fully developed, the standard by which a court ought to review a judgment terminating it now is from the standpoint of whether there is any basis upon which the plaintiff should be entitled to proceed further. Velantzas, supra at 193, citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 193, 188 A.2d 24 (1963). As the Plaintiff herein did not have the legal standing to institute this foreclosure action ab initio, Plaintiff cannot proceed any further, and thus Plaintiffs Motion for Summary Judgment must thus be denied.

Plaintiff also attempts to support its Motion for Summary Judgment with the Certification of Richard P. Haber, Esq., who is counsel for the Plaintiff and who is not an officer or director of the Plaintiff. The subject Certification is not made on personal knowledge, and admits that it is based on a review of the computerized records of the plaintiff. As the Certification is not based on personal knowledge, the statements in the Certification can only be based on information and belief.

Rule 1:6-6 requires that Certifications in support of Motions be made on personal knowledge. Personal knowledge excludes matters based on information and belief. See., e.g., Wang v. Allstate Ins. Co., 125 N.J. 2, 16 (1991); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 153 (1988). The Haber Certification, which is based on a review of computerized

records (which are per se incompetent hearsay) by someone without personal knowledge, is thus incompetent to support the Plaintiffs Motion for Summary Judgment as a matter of law and New Jersey procedure.

The Haber Certification also makes reference to and attaches the Assignment (Exhibit B to the Certification). This Assignment, which constitutes an admission by the Plaintiff, is the very document demonstrating that Plaintiff had no legal interest or ownership in either the note or mortgage at the time that the Complaint was filed, and raises genuine issues of material fact as to when (if ever) Plaintiff came into any ownership rights of either the Note or the Mortgage. Plaintiffs Motion for Summary Judgment must thus be denied, and summary judgment should be entered in favor of the Fairhurst Defendants on their Sixth Separate Defense and their Counterclaim.

CONCLUSION Plaintiff has, by its very submissions, demonstrated that there are genuine issues of material fact as to when, if ever, Plaintiff came into any ownership interest in either the Note or Mortgage. Plaintiffs submissions demonstrate that there is no genuine issue of material fact that Plaintiff did not have any legal interest in either the note or the mortgage at the time it filed this foreclosure action, and has thus demonstrated that it was without legal standing to institute this action. Summary judgment for Plaintiff is

thus inappropriate.

Summary Judgment is also improper at this time given that discovery is incomplete. The Haber Certification, which consists of incompetent hearsay, is legally inadmissible and does not in any way support the entry of summary judgment for Plaintiff. If anything, the Haber Certification supports the entry of summary judgment in favor of the Defendants on their Sixth Separate Defense and their Counterclaim. Plaintiffs Motion for Summary Judgment must thus be denied, and summary judgment in favor of the Defendants on their Sixth Separate Counterclaim should be granted pursuant to the Cross-Motion for Summary Judgment filed by the Defendants.

Respectfully submitted,
(counsel)

PJ 02/18/10 at 05:55 PM

2 ANN, and all out there , is there a limit on the number and or time frame of QWR's a mortgage holder can submit to a "pretender lender" servicer, or aka ever shifting Foreclosing "agent". It seems to me that every day brings yet more evidence of perpetration of fraud on the American people and our system raising new question's to be answered and raised.

Twix the Cat

1.

02/18/10 at 10:21 AM

I have submitted copies of mortgage assignments that I have found on this website as well as Livinglies...I looked for assignments with the same names as are on my documents...I just had a call returned yesterday from the Register of Deeds in Boston, MA(Suffolk Co) who agreed to send me certified copies of the transfers from his county, that have the same names as mine do in my Wisconsin mortgage transfers... 2. Does anyone have some advice on how to copy and paste these terrific pleadings in this thread, so they do not have the blue/ gray background... thanks, Tom

Ann 02/10/10 at 05:39 PM

SOME IDEAS TO FIGHT FORECLOSURE Dawsonville, GA (PRWEB) February 10, 2010 -- A previously undetected title flaw has been discovered on many previously foreclosed properties. As the number of real estate foreclosures skyrockets, the odds are higher that a home you live in today, or at some point in the future may have had a foreclosure in its history. Even if the foreclosure has long since passed, a loophole in the way mortgages are recorded can create a serious title defect for future owners. Title analysis performed this month by AFX Title has detected this error to be common in random samples of properties it reviewed. "This could affect the property ownership of millions of homes nationwide" said David Pelligrinelli, of AFX Title. "The mortgage recording method which created this title flaw did not exist until recently. As title abstractors are just seeing this problem emerge now but a wave of title claims is coming over the next year or so." The problem is created through a break in the chain of mortgage ownership. Until the 1980s, most mortgages were loans between the homeowner and a bank, who lent the money directly. More recently, the mortgage financing system transformed into an international system of securitization, with mortgage lenders packaging their loans into securities, bought and sold by investors like stocks. These transactions even split individual mortgages into sections, where each loan could have parts owned by different investment banks. The transfer of ownership in these mortgage backed securities (MBS) was done with contracts on the balance sheets of Wall Street investment banks, such as Morgan Stanley and Goldman Sachs. The company who originally appeared to make the loan was normally a retail lending company such as Countrywide or Lending Tree, who typically acted as a sales company, and sometimes

remained contracted to service the loan. In the event that the loan goes into foreclosure at a later date, the then-current owner of the loan files the foreclosure and sells the property to a new owner, often at auction. The land records would show a deed of transfer from the investment bank to the new owner. This creates a break in the chain of ownership of the mortgage rights. In many cases, the transfer of ownership of the mortgage loan has gone from the original lender, through several owners, and then to the foreclosing bank, none of which is recorded on the property title history. Technically, the foreclosing bank has no recorded title rights to foreclose in the first place. Owners of the loan normally do not publicly record each of the transfers out of expediency, and cost. Filing a document of transfer (called an assignment) in the land records incurs a substantial fee paid to the county clerk. Some delinquent homeowners have used this error to delay the foreclosure, forcing lenders to produce the note. In these cases, the bank has to go through the process of getting assignments to the foreclosing bank after the fact. However, the title repair process is not required however in the majority of cases when the homeowner does not contest the foreclosure. This leaves the break in chain of title dormant in the property records, vulnerable to be contested in the future. A few largely overlooked cases have already been decided by courts on this issue. In Lowell MA, a judge invalidated the foreclosure of homes based on missing and out-of-order assignments (US Bank v Ibanez). Unraveling the chain of title and clarifying ownership of loans will create challenges for the courts and legislative bodies in all states. In the meantime, homeowners and buyers should be aware of how this could affect their property title. There are reports that some title insurers are indicating that they will not insure for this title defect. As a national provider of property title searches, AFX Title is seeing an increasing number of files where the chain of title has obvious gaps in the recorded mortgage assignments. According to Pelligrinelli, the issue is serious. When running searches for clients, we are noticing that a significant number of previously foreclosed properties have unconnected chain of assignments in the mortgage history. This could represent a title defect which could technically affect ownership rights for future owner. Pelligrinelli adds that some lenders and government

institutions are rushing to repair the titles on lender-owned properties as they discover them in their portfolio. This does not help individual owners who own properties previously foreclosed. 4closureFraud http://www.4closureFraud.org

Ann 02/01/10 at 06:33 PM

THE NEXT STEP ---------------So far the Homeowner filed Motion to Dimiss and called the Judge clerk to schedule a Hearing at least in 3 months or more if possible. The Judge may dismiss the case with prejudice, bank can't file the lawwsuit anymore, Happy ending. Judge could dismiss the case without prejudice, bank refiles lawsuit in couple months, Homeowner will refile new Motion to Dissmiss , another merry go round. Sometimes the Judge denies Motion to Dismiss and gives Homeowner 10 or 20 days to file an Answer. Homeowner files Answer with Affirmative Defense with Jury Trial together with Discoveries. At any point of the lawsuit, Homeowner can go get a lawyer. The lawyer can file Amended Motion to Dismiss or Amended Answer. Homeowner can negotiate loan modification, loan forebearance, lower interest etc if they wish. Examine the Assignment, the rallonge and loan documents for frauds. The Bank may file Motion to Strike Affirmative Defenses. Homeowner can file Motion to Compel if Bank refuses to produce documents requested. Then at some point, the Bank will file Motion for Summary Judgment . Now it is the tough part. The Homeowner can file more discovery if necessary. Homeowner can depose the Bank, the Servicer etc. Then he has to file Motion to Oppose Summary Judgment before the Hearing date . An experienced lawyer is strongly recommended at this point. Unless the Homeowner knows to defend himself very well, he may lose the case at the hearing and the Juge will schedule the sale of the house. Try to negotiate with Plaintiff lawyer to delay the Hearing date and look for a good lawyer. If Homeowner can't afford a lawyer, then file a Motion to Oppose Summary Judgment, an Affidavit and/or Memorandum of Law to Support Motion to Oppose Summary Judgement. Start to research on Bankruptcy options at the same time.

WAKE UP 01/28/10 at 01:35 PM

WE STOP PAYING ANYTHING AND EVERYTHING THE REASON WHY THEY HAVE THE BALLS TO PULL THIS OFF IS BECAUSE WE HAVEN'T BOYCOTTED YET. PEOPLE STILL PAY TAXES, BILLS,

MORTGAGES REMOVE THE BLOCKS FROM THE BASE OF THE PYRAMIDS AND THE ENSLAVING POWER THE PHAROHS HAVE OVER US WILL CRUMBLE & FALL

Ann 01/24/10 at 06:59 PM

I FOUND A WINNING CASE - FLORIDA FORECLOSURE CASE MOTION TO DISMISS WAS GRANTED WITH PREJUDICE AND JUDGE REWARDS DEFENDANTS ATTORNEY FEE- 5 YEARS LITIGATION 42 ATTORNEY HOURS. ---------------------------- DUVAL COUNTY CASE 16-20040CA-004918 BANK, OF NEW YORK, ACTING SOLELY IN ITS CAPACITY AS TRUS PLAINTIFF XXXX-XXX-XX-XXX-X XXXXX WILLIAMS, PAULETTE, ET VIR, ET AL DEFENDANT XXXX-XXX-XXXXX-X XXXXX EQUICREDIT CORPORATIION TRUST,2001-2, PLAINTIFF XXXX-XXXXX-XXX-X XXXXX UNKNOWN SPOUSE OF PAULETTE WILLIAMS, DEFENDANT XXXXXXX-XX-XXX-X XXXXX AY AND ALL UNKNOWN PARTIES,CLAIMING BY, THRUOGH, UNDER, AND,AGAINST THE HEREIN NAMED INDIVIDUAL,DEFENDANT(S) WHO ARE NOT KNOWN TO,BE DEAD OR ALIVE, WHETHER SAID,UNKNOWN PARTIES MAY CLAIM AN,INTEREST AS SPOUSES, HEIRS,,DEVISEES, GRANTEES, OR OTHER,CLAIMANT, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX MERCURY FINANCE COMPANY OF FLORIDA, DEFENDANT XXXXXXX-XX-XXX-X XXXXX TENANT #1, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX TENANT #2, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX TENANT #3, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX TENANT #4 THE NAMES BEING,FICTITIOUS TO ACCOUNT FOR PARTIES,IN POSSESSION, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX Docket(s) Image Effective Date Count Description 7/13/2004 COMPLAINT, NOTICE OF LIS PENDENS, SUMMONS ISSUED (5) 7/13/2004 COVER SHEET 7/19/2004 NOTICE OF LIS PENDENS OR 11935-2461 (1)

8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/15/04, TENANT #1 8/3/2004 SUMMONS RETURNED NOT SERVED TENANT #2 8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/19/04, MERCURY FINANCE CO. OF FLA. 8/3/2004 SUMMONS RETURNED NOT SERVED THE UNKNOWN SPSE OF PAULETTE WILLIAMS 8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/15/04, PAULETTE WILLIAMS 8/4/2004 MOTION TO DISMISS ATTY/DEFT 8/4/2004 REQUEST TO PRODUCE (P. WILLIAMS FIRST) TO THE BANK OF NEW YORK, 8/3/04 8/16/2004 NON-MILITARY AFFIDAVIT TENANT 1 (THEARIS HARVELL) 8/16/2004 MOTION FOR DEFAULT AND DEFAULT (ONE PAGE) TENANT 1 (THEARIS HARVELL) & MERCURY FINANCE COMP. OF FL. 8/24/2004 NOTICE OF FILING AMENDED AFFIDAVIT OF REASONALBLE ATT FEES 8/24/2004 AFFIDAVIT AS TO ATTORNEYS FEES (AMENDED)ANDREW S.FORMAN,ESQ 8/25/2004 MOTION FOR SUMMARY JUDGMENT PLTFS, INCLUDING A HRG,ETC ATY ANNE CORDELL 9/3/2004 NOTICE OF HEARING RM 204 OCT 1,04 9:30AM 9/28/2004 NOTICE OF CANCELLATION OF HEARING 10/1/04 AT 9:30A, RM. 204 10/4/2004 OBJECTION & MOTION CONTINUE HRG MOTION S.J. ETC, ATY/DEFT P WILLIAMS 10/11/2004 NOTICE OF HEARING 10/28/04 AT 9:30A, RM. 204 10/28/2004 NOTICE OF CANCELLATION OF HEARING RM 204 OCT 28,04 9:30AM/UPS GROUND 6/14/2005 NOTICE OF FILING COPY OF ASSIGNMENT OF MORTGAGE,ETC(3)/UPS 7/28/2005 NOTICE OF HEARING AUG.18,205 AT 10:35 AM 8/10/2005 MEMORANDUM IN SUPPORT OF DEFT MOTION TO DISMISS..ATTY/DEFT 8/23/2005 ORDER GRANTING MOTION TO DISMISS COMPLAINTPLTF HAS 20 DAYS TO REPLEAD 8/29/2005 MOTION FOR ATTORNEYS FEES AND COSTS, PAULETTE WILLIAMS, ATT 9/15/2005 NOTICE OF FILING COPY OF AMND NOTICE OF LIS PENDENS AND ORIGINAL AMND MORT. 9/19/2005 RECVD AMENDED NOTICE LIS PENDENS / FWD TO RECORDING 9/22/2005 MOTION TO DISMISS AMEND.MORTGAGE FORECLOSURE COMPLAINT, PAULETTE WMS/ATT 9/27/2005 NOTICE OF LIS PENDENS AMENDED, OR BK 12777 PG. 881 (1) 10/18/2005 NOTICE OF HEARING ON DEFT. PAULETTE

WILLIAMS,ETC., 12/9/05 AT 2:10P 10/18/2005 NOTICE OF HEARING (AMND) ON DEFT P. WILLIAMS,ETC., 12/13/05 AT 2:20P 10/19/2005 NOTICE OF HEARING (AMENDED),ETC/DEC 13.05 2;20PM 11/3/2005 NOTICE OF CHGN OF LAW FIRMS/THE FL DEFAULT LAW GROUP,ETC/UPS 12/16/2005 ORDER GRANTING MOTION TO DISMISS AMENDED MORTGAGE FORECLOSURE COMPLAINT-PLTF HAS 20 DAYS 7/12/2006 MOTION TO DISMISS BY DEFENDANT W/PREJ & FOR REASONABLE ATTYS FEES/PAULETTE WILLIAMS/ATTY 7/24/2006 MOTION FOR LEAVE TO FILE COUNTERCLAIM, ETC., ATTY/P. WILLIAMS 7/27/2006 NOTICE OF HEARING 08/31/2006 10AM HON JOHNSON 7/28/2006 NOTICE OF FILING COPIES OF PLEADINGS FROM CASE 2006-1564-CA DIVISION CV-C 9/13/2006 NOTICE OF HEARING 09/26/2006 2:45PM RM 204 FED EX 9/26/2006 RESPONSE TO MOT TO DISMISS W/PREJ//PLTF/ATTY FED EX 10/17/2006 ORDR GRNTING MOTION TO DISMISS WITH PREJUDICE RECVD- FWD TO RECD 10/17/2006 ORDER GRANTING DISMISSAL OF DEFT. PAULETTE WILLIAMS, OR BK 13595 PG. 1517 (2) 10/26/2006 RENEWED MOT FOR AWARD OF ATYS FEES & COSTS & MOT FOR ORDER DETERMINING ENTITLEMENT TO MULTIPLIER/PAULETTE WILLIAMS/ATY 11/6/2006 NOTICE OF HEARING JAN.22,2007 AT 10:10 AM 1/19/2007 NOTICE OF HEARING (AMENDED)3/6/07 @ 2PM 3/7/2007 DEFTS EXHIBIT #1- AGREEMENT FOR PROFESSIONAL SERVICES 4/12/2007 ORDR GRNTING MT FOR ATTYS FEES & COSTS & FOR MULTIPLIER RECVD- FWD TO FORECLOSURE CLERK 4/12/2007 ORDER GRANTING DEFEN MO/FOR ATTYYS FEES AND COSR AND MULTIPLIER 4/12/2007 ORDER GRANT DEF MTN FOR ATTRNY FEE/COSTS, OR BK 13931 PG 477 (6)

 4/23/2007 MOTION FOR ENTRY OF FJ FOR ATTYS FEES AND COSTS,ETC/ATT,DEFT 4/26/2007 NOTICE OF HEARING 05/03/2007 9:30AM RM 227 5/3/2007 FINAL JUDGMENT FOR ATTYS FEES, ETC., OR 139581557 (2) 5/8/2007 MOTION FOR ORDER COMPELLING COMPLETION OF FORM 1.977/ATT,DEFT 5/8/2007 REQUEST TO PRODUCE 5/14/2007 NOTICE OF APPEAL BK 13979 PG 2362 5/21/2007 DCA ACKNOWLEDGEMENT RECEIPT 1D07-2626 5/22/2007 NOTICE OF APPEARENCE OF COUNSEL ERIC C REED ATTY FOR DEFTS FED EX 5/22/2007 DIRECTIONS TO CLERK 6/12/2007 DESIGNATION TO COURT REPORTER 6/29/2007 NOTICE OF FILING ORIG SUPERSEDEAS BOND FED EX 7/9/2007 BOND FILED, APPROVED & COPY PLACED IN FILE 7/12/2007 JOINT MOTION FOR SUBSTITUTION OF COUNSEL FOR PLTF/ MITCHELL ROTHMAN ESQ & JOHN DANNECKER ESQ FED EX 7/13/2007 ORDER GRANTING MOTION JOINT, FOR SUB OF COUNSEL FOR PLTF- SHUTTS & BOWEN 7/16/2007 COPY OF ORDER FROM DISTRICT COURT OF APPEAL APPLT. MO.FOR EXT.OF TIME FOR SERVICE OF INITIAL BRIEF 7/16/2007 GRANTED 7/18/2007 PROCEEDINGS BEFORE THE HON LANCE M. DAY, TAKEN 3/6/07 8/31/2007 COPY OF ORDER FROM DISTRICT COURT OF APPEAL APPLT MOTION FILED 8/23/07 SEEKING TO SUPPL.ROA GRANTED 9/14/2007 TRANS TO DCA: 1 VOL ROA, 1 VOL PRO, 1 EXH (072626) 9/17/2007 NOTICE OF FILING 4/14/2008 COPY OF ORDER FROM DISTRICT COURT OF APPEAL APPELLEES MOTION FILED 05/29/07 FOR ATTY FEES GRANTED 4/14/2008 MOTION APPELLANTS MOTION FILED 11/15/07 FOR ATTY FEES DENIED 4/30/2008 MANDATE (AFFIRMED) BOOK 14481 PAGE 672-676 5/12/2008 MOTION (UNOPPOSED) TO RELEASE SUPERSEDEAS BOND/PLTF/ATTY FED EX 5/22/2008 ORDER GRANTING PLAINTIFFS UNOPPOSED MOTION TO RELEASE SUPERSEDEAS BOND 6/4/2008 ORIGINAL SUPERSEDEAS BOND RETURNED TO ATTORNEYS SHUTTS & BOWEN, P.A. 6/13/2008 ROA RETURNED FROM DCA (1D07-2626) 2 VOL 1 SUPPL. 1 EXH. STORED IN BOX 995 6/17/2008 NOTICE OF UNAVAILABILITY / NONAVAILABILITY JAMES A KOWALSKI JR.,ESQ./PAULETTE WILLIAMS 4/6/2009 NOTICE OF DISMISSAL OF COUNTERCLAIM ATTY/DEFT 4/13/2009 NOTICE OF LIS PENDENS (RELEASE) BOOK 14840 PAGE

1567-1568

This thread has more than 35 replies. Click here to review the whole thread.