IN THE CIRCUIT COURT OF THE 11THJUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA RENEE STEWART, Plaintiff, Vs.

BANK OF AMERICA CORPORATION, a Foreign Corporation, Defendant. ____________________________/ I. GENERAL JURISDICTION

CASE NO.: 2010-63069-CA-01 Florida Bar #: 393916

SUMMARY OF THE ARGUMENT

According to Rules 1.500(d) and 1.540(b) of the Florida Rules of Civil Procedure relief from default and default final judgment may be granted as a result of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing, fraud, misrepresentation, misconduct of an adverse party, satisfaction, release, reversed vacated or void judgment, or that the judgment is no longer equitable. In order to be successful to set aside a clerks default a party must show that: 1) the failure to file a responsive pleading was the result of excusable neglect 2) the party has a meritorious defense, and 3) the party has been reasonably diligent in seeking to vacate the default after it was discovered. Johnson v. Johnson, 845 So.2d 217 (Fla. 2nd DCA 2003); Hunt Exterminating Co., Inc v. Crum, 598 So.2d 113 (Fla. 2nd DCA 1992); Ponderosa, Inc. v. Stephens, 549 So.2d 1162 (Fla. 2nd DCA 1989); Bland v. Viking Fire Protection Inc., 454 So.2d 763 (Fla 2nd DCA 1984). Failure of defendant to satisfy any one of these elements must result in a denial of motion to set aside default judgment. The Defendant, Bank of America Corporation has failed to satisfy the requirements as to excusable neglect, a meritorious defense and acting reasonably diligent in seeking to vacate the default after it was discovered.

Statement of the Case The Plaintiff filed a complaint on December 15th, 2010 in the circuit court of the 11th Judicial Circuit in and for Miami-Dade County, Florida. The complaint alleges, in three counts the facts to support a temporary and permanent injunction of the filing foreclosure against the plaintiff by the defendant due to lack of standing, declaratory relief declaring that the Defendant, Bank of America Corporation has no legal or equitable rights in the Note or Mortgage for purposes of foreclosure and that the defendant has no legal standing to institute or maintain foreclosure on the property, and wrongful collection by the defendant of a debt not owed wherein the defendant collected TWO THOUSAND, SEVEN HUNDRED EIGHTY-EIGHT DOLLARS TWENTY SEVEN CENTS ($2,788.27) interest only from August 2007 through November 2010 for the amount of ONE HUNDRED NINE THOUSAND, SEVEN HUNDRED FOUR DOLLARS ($109,704.00). On the same day the Clerk of the court duly issued a Summons in a Civil Action which, in part, notified the defendant that it must, within twenty days after service of the Summons, file with the Clerk of the Court, and serve upon the attorney for the Plaintiff, an Answer to the Complaint. By the expiration of the twenty-day period specified on the Summons, the defendant had not filed an Answer to the Complaint with the Clerk of this Court, nor had it served a copy of the Answer upon the Plaintiff. To date the defendant has not responded to the Complaint, nor otherwise appeared in this action. On December 12th, 2011 the Plaintiff notified the Defendant that it intended to petition the court for a judgment by default. The Plaintiff received no response from the Defendant to this Motion for Clerks Default. On December 15th, 20010 the Plaintiff files a Demand for Jury Trial of any and all issues triable by a jury. The only count that could legally be tried by jury is Count III, titled Wrongful Collection of a Debt Not Owed. The Plaintiff is therefore required to submit evidence to a jury on as to the unliquidated damages from the Defendants wrongful collection of the amount of ONE HUNDRED NINE THOUSAND, SEVEN HUNDRED FOUR DOLLARS ($109,704.00).

Clerk Docket Timeline STEWART, RENEE vs BANK OF AMERICA CORP.

* Click on BOOK/PAGE of a particular docket to see the image if it is available *

Case Number 2010-63069(LOCAL): CA-01

Dockets 15 Retrieved:

Filing Date: 12/15/2010 Judicial 22 Section: Comments

Case Number 13-2010-CA-063069-0000-01 (STATE): Date 08/04/2011 08/04/2011 08/04/2011 07/06/2011 06/08/2011 05/20/2011 27701 / 145
Pages: 10

Book/Page

Docket Entry MOTION TO DISMISS MOTION: AFFIDAVIT OF: NOTICE OF JURY TRIAL NOTICE OF APPEARANCE COURT ORDER CERTIFICATE OF SERVICE TEXT DEFAULT MOTION FOR DEFAULT SERVICE RETURNED SUMMONS ISSUED DEMAND FOR JURY TRIAL COMPLAINT CIVIL COVER

TO SET ASIDE DEFAULT FINAL JUDGEMNT AS TO CTS I & II ETC ANDREW BOTT :M ATTORNEY: 00507954 DN01 BK:27701 PG:0145 DEFAULT JUD AS TO CNTS I&II & ORDER SETTING JURY TRIAL

03/14/2011 03/14/2011 01/13/2011 01/12/2011 12/20/2010 12/15/2010 12/15/2010 12/15/2010 12/15/2010

SUGGESTION OF DEATH & MTN FOR SUBSTITUTION OF PLTF.,ETC. DN01

BADGE # 262 P 12/17/2010 DN01 DN01

TABLE 1 Table 1 is the Miami-Dade Clerks Office docket entries from the date of filing through August 4th, 2011.

The Defendant, Bank of America Corporation was served notice of the motions filed on March 14th, 2011 (see certificate of service in the official court file) at the corporate address on file with the Florida Department of State, division of Corporations as well as the registered agents address. The Defendant, Bank of America Corporation was served a copy, mailed from the courthouse, of the Default Judgment Court order entered on May 20th, 2011, BK2710, PG0145. However, according to Mr. Reining, employee Bank of America, N.A., (see Affidavit in Opposition) the first non official court record activity towards defending this cause of action did not take place until June 3, 2011 when Karina Buitrago, employee of Bank of America, N.A., located at West Lake Village, Los Angeles, CA, telephone number 818 233 5390, emailed the summons and complaint to Doris Hearn, in house counsel located in Plano, Texas. The first official court record activity did not take place until June 8th, 2011 when the attorney representing the Defendant filed a Notice of appearance.

Finally after another 57 days the Defendant filed a Motion to Dismiss and Motion to Set Aside Default Judgment.

There is a total of 144 days, (4 months, 22 days) from the service of the Motion for Default Judgment until the Defendant filed its Motion to Set Aside with no reason or excuse alleged by the Defendant for such a delay.

There is a total of 77 days, (2 months, 16 days) since the Default Judgment was served directly from the courthouse on the Defendant, Bank of America Corporation until the

Defendant filed its Motion to Set Aside with no reason or excuse alleged by the Defendant for such a delay.

Clearly not diligently acted upon.

LEGAL ARGUMENT DUE DILIGENCE It is well-established that issues of "due diligence" and "reasonable time," in common with all questions relating to the issue of whether defaults and default judgments should stand, must be evaluated in terms of the particular facts of the case under consideration. See Techvend, 564 So.2d at 1146 (Cope, J., specially concurring); Rosenblatt v. Rosenblatt, 528 So.2d 74, 76 (Fla. 4th DCA 1988); B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981); accord In re Cremidas' Estate, 14 Alaska 234, 14 F.R.D. 15 (D.Alaska 1953); Alston v. Philadelphia Elec. Co., 337 Pa.Super. 46, 486 A.2d 473 (1984); 7 J. Moore & J. Lucas, Moore's Federal Practice 60.28[2] (2d ed. 1990); 11 C. Wright & A. Miller, Federal Practice and Procedure 2866 (1973). In Worlds Finest Products, Inc. v Carpenter, 564 So.2d 626 (Fla. 4DCA 1990), Carpenter failed to exercise due diligence in seeking relief. Forty-eight days passed before Carpenter took any action after learning of the default. Moreover, he offered no reasonable explanation for the forty-eight day delay. See Fischer v. Barnett Bank of South Florida, N.A.,511 So.2d 1087 (Fla. 3d DCA 1987); Bayview Towers Condo. Assoc., Inc. v. Schweitzer, 475 So.2d 982 (Fla. 3d DCA 1985) and Westinghouse Credit Corp. v. Steve Lake Masonry, Inc.,356 So.2d 1329 (Fla. 4th DCA 1978) Additionally, in the Carpenter case the court stated: the defendants have failed to establish, as required by Florida law, that they acted with due diligence in seeking to set aside the final declaratory decree. The defendants obtained the final judgment against them shortly after they returned to Venezuela from Europe; yet it inexplicably took them five weeks thereafter to contact their counsel in Miami to look into the matter. Although counsel promptly acted upon being so contacted and immediately filed a motion to vacate the final declaratory decree herein, the prior five-week delay by the defendants was entirely inexcusable. See Bayview Tower Condominium Ass'n v. Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA 1985); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329, 1330 (Fla. 4th DCA 1978); Cal-U-Sonic v. Metric Sys. Corp., 330 So.2d 63, 64 (Fla. 1st DCA), cert. denied, 339 So.2d 1167 (Fla. 1976). The Third District Court of Appeals stated:

the defendant herein waited a month after its insurance company was informed of the default herein before moving below to vacate the said default. This delay showed a lack of due diligence in seeking relief after learning of the default and was fatal to the subject motion to vacate filed below. See B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345, 1347 (Fla. 3d DCA 1981). Unquestionably, the Defendant, Bank of America Corporations failure to act with due diligence, as well as having filed no explanation at all as to why it failed to act for more a total of 144 days, (4 months, 22 days) after being served the Motion for Default and/or the failure to act within a total of 77 days, (2 months, 16 days) since the Default Judgment was served directly from the courthouse on the Defendant, Bank of America Corporation until the Defendant filed its Motion to Set Aside requires the Court to deny the Motion to Set Aside Default Judgment as a matter of law. EXCUSABLE NEGLECT Affidavit In Support of Motion to Vacate is Legally Insufficient "Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient." Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004); see also Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614, 614 (Fla. 4th DCA 2000). Legally sufficient affidavits in support of the motion to vacate must show excusable neglect by the defendant in failing to respond to the complaint. The failure to submit a legally sufficient affidavit is fatal to the motion to vacate. Sherer v. The Club, Inc., 328 So.2d 532 (Fla. 3d DCA), cert.
dismissed, 334 So.2d 604 (Fla. 1976).

The Defendant, Bank of America Corporation relies solely on the Affidavit of Andrew Bott Support of Motion to Vacate Default Judgment, (Exhibit A) which is legally insufficient. As stated in the affidavit in question, Andrew Bott is an employee of Bank of America, N.A. The Affidavit is void of any statement of fact, directly or indirectly, which goes towards establishing excusable neglect by the Defendant, Bank of America Corporation. Mr. Botts affidavit discusses actions and/or inactions which may or may constitute neglect in behalf of Bank of America, N.A., although not excusable neglect of the employees of Bank of America, N.A. The neglect of Bank of America, N.A. is irrelevant as to the issue of excusable neglect of the Defendant, Bank of America Corporation. Other than Andrew Botts statement that Bank of America, N.A. performs review of incoming lawsuits which are served on CT Corporation, as registered agent for Bank of

America Corporation, and which are placed by CT corporation into litigation database which it maintains there is no mention of the Defendant or any actions of the Defendant, Bank of America Corporations excusable neglect. In Bayview Tower Condominium Association, Inc. v Schweizer, 475 So.2d 982 (Fla. 3DCA, 1985) the court ruled the affidavits in support of the motion to vacate were legally insufficient because they make no reference to the aforesaid defendant in this case; instead, they refer entirely to the defendant's insurance company and its agents. This being so, there was utterly no showing below of excusable neglect by the defendant in failing to respond to the plaintiff's complaint which failure of proof was fatal to the subject motion to vacate. Sherer v. The Club, Inc., 328 So.2d 532 (Fla. 3d DCA), cert. dismissed, 334 So.2d 604 (Fla. 1976).

The Affidavit Is Non Specific Conclusory Statements Which Fails to Establish Excusable Neglect The Defendant, Bank of America Corporations supporting affidavit by Andrew Bott fails to factual state with any specificity acts of excusable neglect by the Defendant. Additionally, the affidavit fails to state any specificity with regards to Bank of America, N.A.s actions in reference to excusable neglect. The affidavit is merely conclusory statements with absolutely no probative value.

There are no qualifications as to time of action or inaction, the party responsible for failing to act, the and all blame is placed on a location of as opposed to an actual office. The affidavit is incredible vague and sparse as to a factual basis making it nearly, if not totally, impossible to verify any conclusions drawn by the affiant. One must question whether or not this is done in an attempt to circumvent detection of its falsity? Additionally, the document itself proves that it is not based on Andrew Botts personal knowledge. Mr. Bott works in San Francisco, California and not the Getzville, N.Y. team. The best Mr. Bott can attest to with personal knowledge is what he has been told, and who the Declarant of the statement is, as well as when the statement was prepared. This is not the case and therefore the affidavit is insufficient.

The Plaintiff has filed an affidavit which clearly demonstrates that the allegations submitted by the Defendant are untrue and is not a plausible basis of excusable neglect. The delay is clearly inexcusable, taking in to consideration the timeline and the Plaintiffs affidavit as well as the Defendant failure to explain why it had failed to answer the complaint in a timely manner. As well as the failure to act with due diligence in filing its Motion to Vacate the Default Judgment, There is simply no explanation.

In Bayview Tower Condominium Association, Inc. v Schweizer, 475 So.2d 982 (Fla. 3DCA, 1985) the Court stated: the record shows totally inexcusable delays on the part of the defendant's insurance company in losing, and failing to discover after fair notice, the insurance adjuster's file in this case. Indeed, the affidavits show that the said company took five months to discover the file after being informed of the necessity to have the defendant file an answer herein. This inexcusable neglect was fatal to the subject motion to vacate filed below. See Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978) The case before this Honorable Court is no different and the Motion must be denied. MERITORIOUS DEFENSE To entitle the defendant to have the default set aside, in addition to a showing of excusable neglect, it was incumbent upon the defendant to show it had a meritorious defense, and a mere statement to that effect in an unsworn motion was not sufficient. The existence of a meritorious defense should be disclosed in tendering a defensive pleading showing the defense, or by a sworn motion or affidavit stating facts which if proved would be a meritorious defense, where a factual defense is relied on, or by showing legal grounds constituting a meritorious defense where a legal rather than a factual defense is to be relied on. See State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40, 42-43 (1931); Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So.2d 733, 735 (Fla. 1st DCA 1964); Butler v. Butler, 172 So.2d 899, 901 (Fla. 3d DCA 1965); Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974); Grimsely v. Florida Universal Financial Corp., 339 So.2d 721, 722 (Fla. 1st DCA 1976).

The Defendant, Bank America Corporation relies on a Motion to Dismiss alleging that the improper party has been sued as a meritorious defense. There is no supporting affidavit or

disclosure of tendering a defensive pleading which if proved would constitute a meritorious defense. In fact the complaint is not even attacked as failing to state a cause of action. The only evidence in an attempt to support the allegation that wrong party has been sued is the submission of an allonge.

The Allonge: Inadmissible and Suspect as a Forgery

The allegation as the meritorious defense of the Defendant is that it is merely a holding company. However, this in and of itself is not a defense or an immunity from being sued for wrong doing. The lawsuit is not seeking to hold it liable for subsidiary liability. In fact the Defendant has not even alleged that a subsidiary is responsible for any of the acts constituting the circumstances and events which are the basis for the lawsuit. It is unfathomable that corporate governance based on they say so would constitute a meritorious defense to a well plead lawsuit. Clearly the assertion that the wrong party has been sued necessarily requires the filing of an affirmative defense and subject to the production of credible evidence. The Defendant has attached an Allonge dated June 1, 2007 to its motion to Set Aside Default Judgment, (see Exhibit B, Defendants motion). The Allonge is not attached to the promissory note of the same date and is allegedly signed by Brett Zaroff, President of Bankers Mortgage, Inc. There is no Florida case on point which provides guidance as to how an allonge must be physically attached to an instrument in order for it to become firmly affixed to same. Therefore, the Court may look to decisions of courts in other states for persuasive authority. To begin, two reasons have been cited for the firmly affixed rule: (1) to prevent fraud; and (2) to preserve a traceable chain of title. See Adams v. Madison Realty & Development, Inc., 853 F. 2d 163, 167 (3d Cir. 1988). A draft of the 1951 version of the UCC Article 3 included the comment that [t]he indorsement must be written on the instrument itself or an allonge, which, as defined in Section _____, is a strip of paper so firmly pasted, stapled or otherwise affixed to the instrument as to become part of it. ALI, Comments & Notes to

Tentative Draft No. 1 Article III 114 (1946), reprinted in 2 Elizabeth Slusser Kelly, Uniform Commercial Code Drafts 311, 424 (1984). More recently, however, courts have held that stapling is the modern equivalent of gluing or pasting. Lamson v. Commercial Cred. Corp., 187 Colo. 382 (Colo. 1975). See also Southwestern Resolution Corp. v. Watson, 964 S.W. 2d 262 (Texas 1997) (holding that an allonge stapled to the back of a promissory note is valid so long as there is no room on the note for endorsement).

Regardless of the exact method of affixation, numerous cases have rejected endorsements made on separate sheets of paper loosely inserted in a folder with the instrument and not physically attached in any way. See Town of Freeport v. Ring, 1999 Me. 48 (Maine 1999); Adams v. Madison Realty & Development, Inc., 853 F. 2d 163 (3d Cir. 1988); Big Builders, Inc. v. Israel, 709 A. 2d 74 (D.C. 1988) Here, the Plaintiffs purported allonge, as found in the Court File, is in no way so firmly affixed to the Promissory Note as to give the Defendant the ability to raise a meritorious defense that there is a lack of privity with the Defendant, Bank of America Corporation. Because the purported allonge is not affixed to the Note, the twin aims of affixation, namely to prevent fraud and to preserve a traceable chain of title, have expressly not been met. Therefore the document is neither admissible nor relevant and in fact is not an allonge by definition. There is also no Florida case law which provides guidance on how to decide No-Space Tests, or how to proceed when there is room on the instrument for an endorsement but an allonge is nevertheless attached instead. However, numerous jurisdictions permit allonges only where, because of multiple endorsements, no additional space for signatures remains on the negotiable instrument. See Shepherd Mall St. Bank v. Johnson, 603 P. 2d 1115, 1118 (Okla. 1979); Tallahassee Bank & Trust Company v. Raines, 187 S.E. 2d 320, 321 (Ga. App. 1972); James Talcott, Inc. v. Fred Ratowsky Assoc., Inc., 38 Pa. D. & C.2d 624 (Pa. Ct. of Common Pleas 1965). But see Crosby v. Roub, 16 Wis. 616, 626-27 (Wis. 1863) (allonge permitted even where space remains on note). Perhaps the seminal case which deals with the issue is Pribus v. Bush, 118 Cal. App. 3d 1003 (Cal. App. 1981), which reasoned that the law merchant rule [which permits the use of allonges only when there is no room on the instrument itself]was

developed as a refinement of the basic rule that an endorsement must be on the instrument itself. This basic rule must have become impractical when strictly applied in certain multiple endorsement situations, due to the finite amount of space on any given instrument. The allonge, then, was apparently created to remedy the inconveniences of the basic rule, not as an alternative method of endorsement. Id at 1008. Emphasis added.

It must be pointed out that the date of the promissory note executed by the Plaintiff, Renee Stewart and the date of the allonge is June 1, 2007. Clearly there would necessarily be room on the back of the original promissory note as well as on the front of the note for and endorsement which consist of no more than the words of Pay To The Order Of Countrywide Bank, FSB, Without Recourse followed by a signature line to be printed on the note if in fact it was a valid assignment. As stated on the Plaintiffs Affidavit in Opposition, paragraph 11: The Defendant, Bank of America Corporation incorrectly alleges that an allonge was executed from Bankers Mortgage Trust to Countrywide Bank (Motion to Set Aside Default, page 4, para. 1, Defendants Exhibit B) on June 1, 2007. However on July 17, 2009 the Defendant, Bank of America Corporation stated in writing that the loan was owned by Citimortgage in a letter responding to the Plaintiffs written request. This letter is also on the Defendants owned trademark stationery (page 2, paragraph 5). This written statement by the Defendant, Bank of America Corporation to the Plaintiff, Renee Stewart highlights the fraudulent nature of the Allonge.

Additionally, it is doubtful that Brett Zaroff ever signed the Allonge dated June 1, 2007 on any date. The signature samples from the filings with the Florida Department of State, Corporate Division are in no way similar to the signature on Exhibit B. (See Plaintiffs Affidavit in Opposition, Paragraph 12, Page 3, Exhibit 18 Composite).

Ownership of Countrywide Bank From the Defendant, Bank of America Corporations website the purchaser of

Countrywide is I fact the Defendant as evidenced by the Newsroom announcement as well as the SEC Form S-4 filing confirming the purchase transaction (Plaintiffs Affidavit in Opposition,

Exhibit Composite 17). This information was downloaded from the Bank of America website named bankofamerica.com which is registered to the Defendant. The Plaintiff, Renee Stewart Transacted Business Through the Defendant, Bank of America Corporations Owned Streams of Commerce Despite the unverified allegation from the Defendant, Bank of America Corporation is the wrong party defendant there exists overwhelming documentary evidence that in fact the Plaintiff did conduct business with the party Defendant served and named in the Complaint. The affidavit in opposition clearly establishes that the Defendant, Bank of America Corporation was the only authorized entity lawfully conducting business in the State of Florida as a foreign company which dealt with the Plaintiff. Additionally the stationery bares the logo that is trademarked and owned by the Defendant. Letters from the Defendant with their logo and name printed on the communications were mailed to the Plaintiffs residence. Including, but not limited to, the Qualified Written Response which was sent to the Plaintiff stating that the note and mortgage was owned by CitiMortgage. The website utilized by the Plaintiff to conduct business transactions regarding the subject mortgage is the property of the Defendant and the portal for account information is controlled and the [property of the Defendant. The Plaintiff, Renee Stewart had factual and legal reasons to believe that her business dealings were with the Defendant, Bank of America Corporation. (See Affidavit in Opposition to Motion to Vacate, paragraphs 6 through 10, and attached Exhibits 2 through 8). Bank of America Corporation controlled and owned all streams of commerce necessary to conduct it business with the Plaintiff. The Plaintiff relied on the representations made by the Defendant, Bank of America Corporation as affirmatively stated on the stationery, the websites, and logo. The Defendant, Bank of America Corporation is in fact the responsible party and appropriate party to be named in this complaint.

CONCLUSION The Defendant, Bank of America Corporation has failed to satisfy the requirements as to excusable neglect, a meritorious defense and acting reasonably diligent in seeking to vacate the default after it was discovered. WHEREFORE, the Plaintiff respectfully requests this Honorable Court deny the relief requested in the Defendant, Bank of America Corporations Motion to Vacate Default Judgments and award attorneys fees to the undersigned Attorney.