Motion To Dismiss 3k1e23
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IN THE CIRCUIT COURT OF THE 7TH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, FLORIDA CIVIL ACTION AURORA LOAN SERVICES, LLC Plaintiff, vs.
CASE NO.: Civil Division: 32
xxxxxxx., _________________________________________/ MOTION TO DISMISS/STRIKE COME NOW, the Defendants, xx (Collectively herein after referred to as “Defendants”), and files this Motion to Dismiss/Strike Plaintiff, Aurora Loan Services, LLC’s (herein after referred to as “Plaintiff”) foreclosure complaint pursuant to Fla. R. Civ. P. 1.380(b)(C), 1.210(a), 1.140(b), 1.150(a), and 1.420(b) and for Plaintiff’s failure to comply with F.S. 92.525, and moves the Court to order dismissal and/or strike all of Plaintiff’s complaint as it is one based on fraud and one which violates federal, state, and trust statutes and would further show the Court: 1. The Plaintiff has egregiously violated Discovery Rules and remains in violation status for failure to comply with the Defendants' served discovery requests within reasonable and permitted time for pleading, pursuant to Fla. R. Civ. P. 1.350. 2. The Plaintiff, for almost one year has failed to produce any valid response to the Defendant's First Request for Production of Documents which was filed on July 21, 2011 and served on Plaintiff’s attorney, Joseph H. Wolenski on July 25, 2011 via certified mail. Rule 1.350, “Production of Documents and Things” clearly states: “(b) Procedure. Rule 1.350(b) clearly allows for a period of only Thirty (30) Days for which to produce a response to a Request For Production. Rule 1.350(b) stipulates in part that ... The party to whom the request is directed shall serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant.” 3. On September 16, 2011, Defendants sent out a valid Qualified Written Request (QWR) pursuant to RESPA directly to Defendant, which was delivered via USPS Certified Mail No. 7010
2780 0001 4801 9659 (Attached Exhibit “A”). Plaintiff as of this date has failed to acknowledge or respond to this request. 4. It would be unconscionable for the Court to allow the Plaintiff to attempt to file or accept as filed late responses and objections to Defendants’ Request for Discovery, nor is it believed that the Court holds such jurisdiction, when no prior legal plea for time was requested and or granted. 5. The Plaintiff has abused the Florida Rules of Court and has chosen to ignore the Rules of Discovery within proper time for pleading. Florida Case Law has set pellucid precedent that Plaintiffs in Foreclosure Lawsuits ignoring and failing to comply with discovery rules shall be sanctioned and such complaints and lawsuits will be dismissed with prejudice. See U.S. Bank National Assoc., As Trustee, ET AL vs. Ernest Harpster, 6th Judicial Circuit Court, (Case No. 512007-CA-6684ES). On March 25, 2010, Judge Lynn Tepper dismissed the Plaintiff's complaint with prejudice based on a myriad of abuses by U.S. Bank National Assoc. and its counsel. Judge Tepper ordered that as a sanction for egregious failure to comply with discovery rules, the Plaintiff was prohibited from presenting the alleged Promissory Note to the Court. 6. Furthermore, it is Defendants contention that Plaintiff’s complaint is deceptive, fraudulent, and a sham pleading pursuant to Rule 1.150(a). 7. The Plaintiff filed suit against the Defendants for mortgage foreclosure on June 20, 2011. 8. Plaintiff states it now owns and holds the note and mortgage referred to in its complaint. 9. The mortgage referred to in Plaintiff’s complaint was issued by Homecomings Financial, LLC (F/K/A Homecomings Financial Network, Inc.) and NOT the Plaintiff. 10. In order to recover on a promissory note, the Plaintiff must prove: (a) The existence of the note in question; (b) That the party sued signed the note; (c) That the Plaintiff is the owner or holder of the note in due course; and (d) That a certain balance is due and owing on the note. 11. Defendants contend that the mortgage and adjustable rate note that were filed both with the Plaintiff’s Complaint and recently on May 24, 2012 are fraudulent and are not the same documents
in which they originally signed. Defendants have propounded discovery on Plaintiff in order to establish same. 12. The copy of the mortgage document that Plaintiff attaches to its complaint appears to be witnessed by one “Janet G. Cueto,” a notary in Maryland. Her signature appears to be made twice on page 15, but yet clearly the signatures are quite different from one another. Further, it is Defendants contention that Ms. Cueto never witnessed the g of a mortgage by Defendants, Domenic Albanese and Ann Albanese. 13. The copy of the mortgage document that Plaintiff attached to its complaint fails to include page #2. 14. Furthermore, the copy of the mortgage document, adjustable rate rider, and the adjustable rate note that Plaintiff attached to its complaint and subsequently filed with the court on May 24, 2012, reflect that the property address as “410 Country Circle Dr E, Port Orange, FL 32127.” The correct property address as recognized by the U.S. Postal Service is 410 Country Circle Dr E (or 410 E. Country Circle Dr), Port Orange, FL 32128. Volusia County Land Records further notes the property address as 410 E Country Circle Dr E, Port Orange, FL 32128. (Attached Exhibit “B”) Therefore, even if it is rendered that the copies filed by Plaintiff are indeed copies of the original mortgage, adjustable rate rider and the adjustable rate note, (which it is Defendants contention that they are not), a question is raised as to the validity of the mortgage and note itself being that the property address noted in these documents is incorrect, specifically the “zip code.” 15. Plaintiff alleges by its attaching a Corporate Assignment of Mortgage dated April 12, 2011 and filed on May 12, 2011 to its complaint that it is the real party in interest and holder of the mortgage and note. It is Defendants’ contention that: a) The Corporate Assignment of Mortgage document is fraudulent as it is signed by one, “Nancy L. Walker, Vice-President” who it is believed to NOT BE a representative of either Homecomings Financial, LLC (F/K/A) Homecomings Financial Network, Inc. nor even Mortgage Electronic Registration Systems, Inc. (MERS). (On the “Note Allonge” filed by Plaintiffs, it states “Nancy L. Walker, Assistant Vice President” – (Which is it?
President or Vice-President?) for Deutsche Bank Trust company Americas as Trustee by Aurora Loan Services LLC, it’s Attorney-in-Fact.) F.S. 689.01 requires that all land or interests in land for a term of more than one year be conveyed by an instrument in writing. The instrument must be signed in the presence of two subscribing witnesses by the party conveying or transferring the interest or by his lawfully authorized agent. It is noted that this assignment fails to comply with F.S. 689.01. Furthermore, even if it is established that Ms. Walker is an employee of MERS or Homecomings, the question then is raised, “Did she fly to Nebraska in order to execute the assignment as it was notarized in Nebraska?” This document therefore should be rendered, at minimum, as invalid for the aforementioned reasons. b) The Corporate Assignment of Mortgage is also invalid due to it stating that the assignment was asg a mortgage which was “Executed by: XXXXXXX, AN UNMARRIED MAN AND XXXXXXXXXXXXXXXXXX, HUSBAND AND WIFE….” The Defendants, XXXXXXXXXXX and XXXXXXXXXX contend that their names are not “XXXXXXXXXXXXXX” or “XXXXXXXXXXXXXXXXXX.” Therefore, this document should be rendered invalid for the aforementioned reasons. c) The Corporate Assignment of Mortgage is also invalid as on its face it states that the assignor is MERS and, therefore, said assignment would be completely ineffective. “MERS is a private company created by the mortgage banking industry for the purpose of establishing a centralized, electronic system for ing the assignments and sales of residential mortgages, with the goal being the elimination of costly paperwork every time a loan is sold....” MERS has not been given a legal, legal, equitable, or pecuniary right in the debt obligation secured by the Defendants’ homestead Property. Therefore, this document should be rendered invalid for the aforementioned reasons, and Defendants further would show below: d) Furthermore, it is apparent that a severance of the ownership has occurred and a question as to, “who is the proper holder in due course of the Note and Mortgage?” is raised. And, “has Plaintiff acceded or legally been assigned the right to seek this foreclosure?”
It should be noted that in the 12th Judicial Circuit of Florida this subject was addressed in the matter of Aurora Loan Services, LLC v. Judith Mendes Da Costa, 09-142-CA. In this case, it was found “that the assignment attached to the amended complaint is from Mortgage Electronic Registration Systems, Inc. (hereinafter “MERS”) to Plaintiff, and that assignment is completely ineffective. As nominee for the lender, MERS serves in a very limited capacity. Specifically, MERS records the mortgage and tracks ownership of the lien. MERS has no substantive rights itself and, therefore, cannot assign what it does not have.” Additionally, “A nominee of the owner of the note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.” LaSalle Bank Nat. Ass’n v. Lamy, 824 N.Y.S.2d 769, 2006 WL 2251721 (Sup.2006). In a New York appellate court, (Bank of N.Y. v Silverberg, 86 AD3d 274, 279 (2d Dept. 2011) the court dismissed a foreclosure case on the basis that the alleged “assignment” of the mortgage by MERS was invalid. The court ruled that MERS had no right to assign The Silverbergs’ mortgage because MERS did not hold (own) the promissory note for the underlying mortgage loan. Also noted in the matter of U.S. Bank v. Dellarmo (standing-NY Sup.Ct.) the court stated, “In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” (Bank of N.Y. v Silverberg, 86 AD3d 274, 279; see Countrywide Home Loans, Inc. v Gress, 68 AD3d 709). Where a defendant raises the issue of standing, the plaintiff must prove its standing to be entitled to relief (see CitiMortgage, Inc. v Rosenthal, 88 AD3d 759; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753). Moreover, while assignment of a promissory note also effectuates assignment of the mortgage (see Bank of N.Y. Silverberg, 86 AD3d at 280; U.S. Bank, N.A. v Collymore, 68 AD3d at 753-754; Mortgage Elec. Registration Sys., Inc. v Coakley, Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636; Bank of N.Y. v Silverberg, 86 AD3d at 280). Although MERS holds the security in a nominee capacity, it does so without rights to the debt. MERS has no rights to the underlying debt repayment secured by the mortgage; MERS does not even act as the servicing agent to receive the payments and remit them to the lender. MERS’ rights under the deed are pursuant to a nominee capacity. In its ordinary meaning, a nominee represents the principal in only a "nominal capacity" and does not receive any property or ownership rights of the person represented. See, e.g., Cisco v.Van Lew, 60 Cal. App. 2d 575, 583-84, 141 P.2d 433
(1943); see also Applebaum v. Avaya, Inc., 812 A.2d 880, 889 (Del. 2002) (referring to nominees "as agents of the beneficial owners"). The deed says that MERS acts "solely as nominee for Lender." There is no express grant of any right to MERS to transfer or sell the mortgage or even to assign its duties as nominee. Furthermore, MERS may not act on its own, independent of the direction of the specific Lender who holds the repayment interest in the security instrument at the time MERS purports to act. “An agent is authorized to do, and to do only, what is reasonable for him to infer that the principal desires him to do in light of the principal’s manifestation and the facts as he knows or should know them at the time he acts. (Hot Stuff, Inc. v. Kinko’s Graphic Corp., 50 Ark. App. 56, 59, 901 S.W. 2d 854, 856 (1995) citing Restatement (Second) of Agency § 33 (1958)) and (Mortgage Electronic Registration System, Inc. v. Southwest Homes of Arkansas, NO. 08-1299 (Sup. St. Ark 2009)). Florida law actually prevents MERS from foreclosing on property because it is not the note owner or note holder, and Florida law prevents MERS from acting in a fiduciary capacity relating to the loan.) In another forum, MERS argued that it is not authorized to engage in practices that would make it a party to either the enforcement of mortgages or the transfer of mortgages. In Mortgage Elec. Reg .Sys, Inc. v. Nebraska Department of Banking, 270 Neb. 529, 704 N.W. 2d 784 (2005), MERS challenged an istrative finding that it was a mortgage banker subject to license and registration requirements. The Nebraska Supreme Court found in favor of MERS, noting, “MERS has no independent right to collect on any debt because MERS itself has not extended any credit, and none of the mortgage debtors owe MERS any money.” 270 Neb. at 535. The Court in Nebraska further noted the following representation made by MERS: “MERS argues that it does not acquire mortgage loans and is therefore not a mortgage banker under § 45-702(6) because it only holds legal title to ' mortgages in a nominee capacity and is contractually prohibited from exercising any rights with respect to the mortgages (i.e., foreclosure) without the authorization of the . Further, MERS argues that it does not own the promissory notes secured by the mortgages and has no right to payments made on the notes. MERS explains that it merely “immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur.”
704 N.W. 2d 784, 787 (citing brief for MERS) (emphasis added). According to the Court, counsel for MERS further explained: [T]hat MERS does not take applications, underwrite loans, make decisions on whether to extend credit, collect mortgage payments, hold escrows for taxes and insurance, or provide any loan servicing functions whatsoever. MERS merely tracks the ownership of the lien and is paid for its services through hip fees charged to its . 16. MERS has no authority to sell or assign real property and/or mortgages and/or promissory notes as a trust or trustee for any entity. The note and mortgage at issue herein violates Florida public policy because MERS is not a trust company or bank, thus is operating unlawfully as a corporate fiduciary by obtaining legal title to real property in the State of Florida as a trust or trustee for the benefit of MERS and non . MERS has no authority to hold legal title to real property and/or mortgages or promissory notes in the State of Florida as a trust or trustee. MERS has no authority to neither sell nor assign real property and/or mortgages or promissory notes as a trust or trustee for any entity. MERS is acting as a trust or trustee without appropriate approval from the Florida Department of Finance. MERS cannot to act as a trust or trustee in the State of Florida because it does not now meet the registration requirements to be ed by the Florida Department of Finance. 17. In addition to being void because MERS cannot lawfully be a Grantee of a mortgage and/or promissory note acting solely as a nominee for a lender because MERS would be acting as a corporate fiduciary in mortgage when it lacks the capacity to act as a corporate fiduciary, the Security Deed of the Plaintiff naming MERS, acting solely as nominee, and thereby conveying legal title to the property to MERS, acting solely as nominee, as opposed to conveying legal title to the Lender, also causes a problem with the ability to foreclose on the property in the event of a default in repayment of the loan. The ability to foreclose on the property at issue is affected because the mortgage has been separated or split from the note. Loans originated with MERS as the original Grantee as in this case, purport to separate the borrower’s promissory note, which is made payable to the originating lender, from the mortgage, which contains borrower’s conveyance of legal title to MERS as nominee. The U.S. Supreme Court has held that “the note and the mortgage are inseparable.” Carpenter v. Longan, 83 U.S. 271, 274 (1872). See also Nagle v. Macy 9 Cal. 426, 1858 WL 818 (Cal. 1858) (“The debt and the mortgage are inseparable.”) Indeed, it
went on to state that a “mortgage can have no separate existence” from a promissory note. Carpenter, 83 U.S. at 274. As such, the MERS security agreement that purports to grant a deed independent of the promissory note as in this case, therefore attempts to convey something that cannot exist by law. In Missouri, appellate courts have found that MERS did not have the right to assign a deed of trust. In Bellistri v. Ocwen Loan Servicing, 284 S.W.3d 619 (Mo.App. E.D.,2009) MERS’ involvement in the loan effectively led to the stripping of deed of trust lien from the land. In this instance, Ocwen produced an assignment of the deed of trust from MERS to Ocwen. The Missouri Court of Appeals treated the recorded assignment as a legal nullity. Looking to the American Law Institute’s Third Restatement of Property Law the court stated: “Typically, the same person holds both the note and the deed of trust. In the Event that the note and the deed of trust are split, the note, as a practical matter becomes unsecured. Restatement (Third) of Property (Mortgages) § 5.4. Comment. The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. Id. Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. Id. The mortgage loan became ineffectual when the note holder did not also hold the deed of trust.” Ultimately, the Court held that “MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force.” The Court effectively quieted title in favor of Bellistri, stripping off the lien. In another decision in New York, In re Agard , No. 81077338, 2011 WL 499959, at *16 (E.D.N.Y. Feb. 10,2011) (“[W]ithout more, this Court finds that MERS’s ‘nominee’ status and the rights bestowed upon MERS within the Mortgage itself, are insufficient to empower MERS to effectuate a valid assignment of mortgage.”) More recently in an Atlanta court, Judge Amy Totenberg stated “that MERS assignment of a Security Deed without the note as a “nominee” to any entity is without force in the state of Georgia.” In Re: Michael L. Morgan vs. Ocwen Loan Servicing, LLC, & Mortgage Electronic Regristration Systems, Inc., and Merscorp, Inc. 1:10-CV-3555-AT In this case, Judge Totenberg ruled that Defendants’ Motion to dismiss Plaintiff’s claims for injunctive relief (Count II),
wrongful foreclosure (Count VI), negligence (Count VIII), intentional infliction of emotional distress (Count VII), and RICO (Count IX) was DENIED. 18. The Defendants recognize the precedent set in WM Specialty Mortgage, LLC v. Salmon, 874 So.2d 680 (Fla 4th DCA 2004) regarding the assignment of a mortgage. However, as the Second District Court of Appeals noted, 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 as of the date of the commencement of the action. The plaintiff ’s failure to meet the standing requirements as of the commencement of this foreclosure action renders the complaint fatally defective and, therefore constitutes misrepresentation as to who the Plaintiff really is. The assignment cannot post date the filing of this action if assignment does not relate back to the commencement of the litigation. Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005). Given the recent reported cases wherein it has been noted that there are more than 100,000 instances of fraudulent assignments perpetrated by banks, including Aurora, that particularly involved MERS as well, this matter should not simply be “swept under the rug,” but rather should be given great consideration. 19. In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Plaintiff is not entitled to maintain a foreclosure action in which it seeks to foreclose on a note which it does not own. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975) 20. When exhibits are inconsistent with the Plaintiff’s allegations of material fact as to whom the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983). 21. The First District Court of Appeals in Ohio has set crucial recent foreclosure case law, in Wells Fargo Bank, N.A. v. Byrd (2008), in where a Plaintiff who fails to submit proof that it is the "Real Party In Interest" when the complaint is filed is subject to dismissal with prejudice.
"A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of an action." Wells Fargo Bank, v. Byrd, 178 Ohio App.3d 285, 2008-0hio-4603, 897 N.E.2d 722 (2008). It went on to hold, " If plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law." 22. In one Florida case it was found that a separate entity may not maintain suit on a note payable to another entity unless the requirements of F.R.C.P. 1.210(a) are met. Concoran v. Brody, 347 So.2d 689 (Fla. 4th DCA 1977). 23. Furthermore, the Plaintiff alleges that it is the holder in due course on the subject mortgage and note, yet it is the belief of the Defendants that the note was part of larger securitization process and sold to several un-named parties and beneficial owners and any claims by Plaintiff, in the absence of the original note endorsed to Plaintiff, are a clear misrepresentation of the actual facts. 24. F.R.C.P. 1.130(b) provides in pertinent part: “Any exhibit attached to a pleading shall be considered a part thereof for all purposes.” Because the facts revealed by Plaintiff ’s exhibit are inconsistent with Plaintiff ’s allegations as to its ownership of the subject note and mortgage, those allegations are neutralized and Plaintiff ’s complaint is rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983). 25. It is the position of the Defendants that if the courts were to allow a Plaintiff to bring a cause of action in a scenario where the Plaintiff alleges that it owns a certain note and mortgage but fails to provide any evidence to the courts that this, in fact true, the courts would open the door to incredible harm to any homeowner whose home is secured by a mortgage. 26. Plaintiff lacks the legal standing to sue and seek foreclosure on the Defendants as Plaintiff was not a party to the mortgage contract. 27. The Plaintiff is legally barred from entering into evidence any alleged proof of standing per its refusal to address such demand for proof and ing by its own failure to reply in a timely fashion to Defendants’ Request for Production of Documents.
28. It is Defendants contention that the Plaintiff has unlawfully, fraudulently, and with intent to deceive, misrepresented to this Honorable Court that it had legal standing to file this action; wherein it has no legal authority to seek foreclosure on a mortgage which Plaintiff knew was not legally in its name. 29. Florida Rules Of Civil Procedure, Rule 1.420(b) provides, in relevant part, that "any 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 the court." In the matter of U.S. Bank National Assoc., as Trustee v. Ernest E. Harpster Sl-2007-CA-6684-ES, Judge Tepper ruled “The Plaintiff's complaint is dismissed with prejudice, based on the fraud intentionally perpetrated upon the Court by the Plaintiff. This Court has the power to dismiss a case a showing of a commission of fraud on the Court by a party.” 30. If the court were to allow the Plaintiff in this case to prevail in light of serious misrepresentation and fraud upon the court, it would result in a major injustice to the Defendant. The Court cannot be in a position of enabling Plaintiff and its attorneys to commit material misrepresentation or felony crimes. 31. Pursuant to F.S. 92.525, Plaintiff is required to include a “Verification” of the foreclosure complaint. In a 7-page written opinion by Judge Anthony Rondolino of the Sixth Judicial Circuit for Pinellas County, it was noted that “any verification of a foreclosure complaint must be in conformity with F.S. 92.525 as construed by Moss v. Lennar Florida Partners, 673 So.2d 84 (Fla. 4th DCA 1996)” and that because of this he will reject verifications based on “information and belief” or using language indicating the declaration is only true and correct “to the best of my knowledge and belief”. In this instant matter, such language is clearly used. 32. Pursuant to F.S. 57.001, Plaintiff is a foreign corporation and is required to post a nonresident cost bond. Defendant hereby requests that this Court require Plaintiff to post said bond as required by Florida Statutes. 33. Defendants are appearing Pro se, and pray that not only will this Motion to Dismiss/Strike be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” In Re. Erickson v. Pardus, 551 U.S. 89, 94 (2007), but at minimum, that they be allowed to amend their Motion to correct any and all deficiencies. In accordance with the Supreme Court of the
United States pro se Pleadings MAY NOT be held to the same standard as a lawyer’s and/or attorney’s; and whose motions, pleadings and all papers may ONLY be judged by their function and never their form. See: Haines v. Kerner; Platsky v. CIA; Anastasoff v. United States. See also: Platsky v. C.I.A., 953 f.2d. 25; In re Platsky: court errs if court dismisses the pro se litigant without instruction of how pleadings are deficient and how to repair pleadings. Whereas, per provision of F.R.C.P. 1.540(b), this Court has jurisdiction to Dismiss This Lawsuit with Prejudice upon such finding of Unconscionable and irresponsible conduct. WHEREFORE, Defendants respectfully request that this court grant Defendants’ Motion to Dismiss/Strike the Plaintiff’s foreclosure complaint with prejudice for all of the above foregoing reasons, enter an Order declaring the subject transaction rescinded with the result that Plaintiff’s security is void and unenforceable, award Defendants actual compensatory or statutory damages, costs, and any and all other relief, including declaratory and injunctive relief, to which Defendants may be entitled and for such other and further relief this Court may deem to be just and proper. Respectfully Submitted on this 5th day of June, 2012 by: _____________________________ , Pro-Se
_____________________________ , Pro-Se
_____________________________ , Pro-Se CERTIFICATE OF SERVICE The undersigned certifies that a true copy of this document has been sent by U.S. Certified Mail to the law offices of Johnson & Freedman, Attention Jayme Sellards, Esq, at 400 Northridge Road, Suite 1100 M/S 27, Sandy Springs, Georgia 30350 and to Mortgage Electronic Registration Systems, Inc., c/o CT Corporation System, RA, 1200 S Pine Island Road, Plantation, FL 33324 on this ______ day of June, 2012.
IN THE CIRCUIT COURT OF THE 7TH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, FLORIDA CIVIL ACTION AURORA LOAN SERVICES, LLC Plaintiff, vs.
CASE NO.: Civil Division: 32
; ET.AL., _________________________________________/ ORDER DISMISSING FORECLOSURE Defendants, , and, filed a motion on the 5th day of June, 2012 to dismiss Plaintiff’s Aurora Loan Services, LLC’s complaint, dated June 20, 2011 pursuant to Fla. R. Civ. P. 1.380(b)(C), 1.210(a), 1.140(b), 1.150(a), and 1.420(b) and for Plaintiff’s failure to comply with F.S. 92.525. The court hereby states: ____________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ ___________________________________________________________________________ It is hereby ORDERED, that the foreclosure complaint is _________________________ ______________________________________________________________________________ ______________________________________________________________________________ DONE and ORDERED in Daytona Beach, Volusia County, Florida, this ______ day of ______________________, 2011. ____________________________________ William A. Parsons Circuit Judge
CASE NO.: Civil Division: 32
xxxxxxx., _________________________________________/ MOTION TO DISMISS/STRIKE COME NOW, the Defendants, xx (Collectively herein after referred to as “Defendants”), and files this Motion to Dismiss/Strike Plaintiff, Aurora Loan Services, LLC’s (herein after referred to as “Plaintiff”) foreclosure complaint pursuant to Fla. R. Civ. P. 1.380(b)(C), 1.210(a), 1.140(b), 1.150(a), and 1.420(b) and for Plaintiff’s failure to comply with F.S. 92.525, and moves the Court to order dismissal and/or strike all of Plaintiff’s complaint as it is one based on fraud and one which violates federal, state, and trust statutes and would further show the Court: 1. The Plaintiff has egregiously violated Discovery Rules and remains in violation status for failure to comply with the Defendants' served discovery requests within reasonable and permitted time for pleading, pursuant to Fla. R. Civ. P. 1.350. 2. The Plaintiff, for almost one year has failed to produce any valid response to the Defendant's First Request for Production of Documents which was filed on July 21, 2011 and served on Plaintiff’s attorney, Joseph H. Wolenski on July 25, 2011 via certified mail. Rule 1.350, “Production of Documents and Things” clearly states: “(b) Procedure. Rule 1.350(b) clearly allows for a period of only Thirty (30) Days for which to produce a response to a Request For Production. Rule 1.350(b) stipulates in part that ... The party to whom the request is directed shall serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant.” 3. On September 16, 2011, Defendants sent out a valid Qualified Written Request (QWR) pursuant to RESPA directly to Defendant, which was delivered via USPS Certified Mail No. 7010
2780 0001 4801 9659 (Attached Exhibit “A”). Plaintiff as of this date has failed to acknowledge or respond to this request. 4. It would be unconscionable for the Court to allow the Plaintiff to attempt to file or accept as filed late responses and objections to Defendants’ Request for Discovery, nor is it believed that the Court holds such jurisdiction, when no prior legal plea for time was requested and or granted. 5. The Plaintiff has abused the Florida Rules of Court and has chosen to ignore the Rules of Discovery within proper time for pleading. Florida Case Law has set pellucid precedent that Plaintiffs in Foreclosure Lawsuits ignoring and failing to comply with discovery rules shall be sanctioned and such complaints and lawsuits will be dismissed with prejudice. See U.S. Bank National Assoc., As Trustee, ET AL vs. Ernest Harpster, 6th Judicial Circuit Court, (Case No. 512007-CA-6684ES). On March 25, 2010, Judge Lynn Tepper dismissed the Plaintiff's complaint with prejudice based on a myriad of abuses by U.S. Bank National Assoc. and its counsel. Judge Tepper ordered that as a sanction for egregious failure to comply with discovery rules, the Plaintiff was prohibited from presenting the alleged Promissory Note to the Court. 6. Furthermore, it is Defendants contention that Plaintiff’s complaint is deceptive, fraudulent, and a sham pleading pursuant to Rule 1.150(a). 7. The Plaintiff filed suit against the Defendants for mortgage foreclosure on June 20, 2011. 8. Plaintiff states it now owns and holds the note and mortgage referred to in its complaint. 9. The mortgage referred to in Plaintiff’s complaint was issued by Homecomings Financial, LLC (F/K/A Homecomings Financial Network, Inc.) and NOT the Plaintiff. 10. In order to recover on a promissory note, the Plaintiff must prove: (a) The existence of the note in question; (b) That the party sued signed the note; (c) That the Plaintiff is the owner or holder of the note in due course; and (d) That a certain balance is due and owing on the note. 11. Defendants contend that the mortgage and adjustable rate note that were filed both with the Plaintiff’s Complaint and recently on May 24, 2012 are fraudulent and are not the same documents
in which they originally signed. Defendants have propounded discovery on Plaintiff in order to establish same. 12. The copy of the mortgage document that Plaintiff attaches to its complaint appears to be witnessed by one “Janet G. Cueto,” a notary in Maryland. Her signature appears to be made twice on page 15, but yet clearly the signatures are quite different from one another. Further, it is Defendants contention that Ms. Cueto never witnessed the g of a mortgage by Defendants, Domenic Albanese and Ann Albanese. 13. The copy of the mortgage document that Plaintiff attached to its complaint fails to include page #2. 14. Furthermore, the copy of the mortgage document, adjustable rate rider, and the adjustable rate note that Plaintiff attached to its complaint and subsequently filed with the court on May 24, 2012, reflect that the property address as “410 Country Circle Dr E, Port Orange, FL 32127.” The correct property address as recognized by the U.S. Postal Service is 410 Country Circle Dr E (or 410 E. Country Circle Dr), Port Orange, FL 32128. Volusia County Land Records further notes the property address as 410 E Country Circle Dr E, Port Orange, FL 32128. (Attached Exhibit “B”) Therefore, even if it is rendered that the copies filed by Plaintiff are indeed copies of the original mortgage, adjustable rate rider and the adjustable rate note, (which it is Defendants contention that they are not), a question is raised as to the validity of the mortgage and note itself being that the property address noted in these documents is incorrect, specifically the “zip code.” 15. Plaintiff alleges by its attaching a Corporate Assignment of Mortgage dated April 12, 2011 and filed on May 12, 2011 to its complaint that it is the real party in interest and holder of the mortgage and note. It is Defendants’ contention that: a) The Corporate Assignment of Mortgage document is fraudulent as it is signed by one, “Nancy L. Walker, Vice-President” who it is believed to NOT BE a representative of either Homecomings Financial, LLC (F/K/A) Homecomings Financial Network, Inc. nor even Mortgage Electronic Registration Systems, Inc. (MERS). (On the “Note Allonge” filed by Plaintiffs, it states “Nancy L. Walker, Assistant Vice President” – (Which is it?
President or Vice-President?) for Deutsche Bank Trust company Americas as Trustee by Aurora Loan Services LLC, it’s Attorney-in-Fact.) F.S. 689.01 requires that all land or interests in land for a term of more than one year be conveyed by an instrument in writing. The instrument must be signed in the presence of two subscribing witnesses by the party conveying or transferring the interest or by his lawfully authorized agent. It is noted that this assignment fails to comply with F.S. 689.01. Furthermore, even if it is established that Ms. Walker is an employee of MERS or Homecomings, the question then is raised, “Did she fly to Nebraska in order to execute the assignment as it was notarized in Nebraska?” This document therefore should be rendered, at minimum, as invalid for the aforementioned reasons. b) The Corporate Assignment of Mortgage is also invalid due to it stating that the assignment was asg a mortgage which was “Executed by: XXXXXXX, AN UNMARRIED MAN AND XXXXXXXXXXXXXXXXXX, HUSBAND AND WIFE….” The Defendants, XXXXXXXXXXX and XXXXXXXXXX contend that their names are not “XXXXXXXXXXXXXX” or “XXXXXXXXXXXXXXXXXX.” Therefore, this document should be rendered invalid for the aforementioned reasons. c) The Corporate Assignment of Mortgage is also invalid as on its face it states that the assignor is MERS and, therefore, said assignment would be completely ineffective. “MERS is a private company created by the mortgage banking industry for the purpose of establishing a centralized, electronic system for ing the assignments and sales of residential mortgages, with the goal being the elimination of costly paperwork every time a loan is sold....” MERS has not been given a legal, legal, equitable, or pecuniary right in the debt obligation secured by the Defendants’ homestead Property. Therefore, this document should be rendered invalid for the aforementioned reasons, and Defendants further would show below: d) Furthermore, it is apparent that a severance of the ownership has occurred and a question as to, “who is the proper holder in due course of the Note and Mortgage?” is raised. And, “has Plaintiff acceded or legally been assigned the right to seek this foreclosure?”
It should be noted that in the 12th Judicial Circuit of Florida this subject was addressed in the matter of Aurora Loan Services, LLC v. Judith Mendes Da Costa, 09-142-CA. In this case, it was found “that the assignment attached to the amended complaint is from Mortgage Electronic Registration Systems, Inc. (hereinafter “MERS”) to Plaintiff, and that assignment is completely ineffective. As nominee for the lender, MERS serves in a very limited capacity. Specifically, MERS records the mortgage and tracks ownership of the lien. MERS has no substantive rights itself and, therefore, cannot assign what it does not have.” Additionally, “A nominee of the owner of the note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.” LaSalle Bank Nat. Ass’n v. Lamy, 824 N.Y.S.2d 769, 2006 WL 2251721 (Sup.2006). In a New York appellate court, (Bank of N.Y. v Silverberg, 86 AD3d 274, 279 (2d Dept. 2011) the court dismissed a foreclosure case on the basis that the alleged “assignment” of the mortgage by MERS was invalid. The court ruled that MERS had no right to assign The Silverbergs’ mortgage because MERS did not hold (own) the promissory note for the underlying mortgage loan. Also noted in the matter of U.S. Bank v. Dellarmo (standing-NY Sup.Ct.) the court stated, “In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” (Bank of N.Y. v Silverberg, 86 AD3d 274, 279; see Countrywide Home Loans, Inc. v Gress, 68 AD3d 709). Where a defendant raises the issue of standing, the plaintiff must prove its standing to be entitled to relief (see CitiMortgage, Inc. v Rosenthal, 88 AD3d 759; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753). Moreover, while assignment of a promissory note also effectuates assignment of the mortgage (see Bank of N.Y. Silverberg, 86 AD3d at 280; U.S. Bank, N.A. v Collymore, 68 AD3d at 753-754; Mortgage Elec. Registration Sys., Inc. v Coakley, Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636; Bank of N.Y. v Silverberg, 86 AD3d at 280). Although MERS holds the security in a nominee capacity, it does so without rights to the debt. MERS has no rights to the underlying debt repayment secured by the mortgage; MERS does not even act as the servicing agent to receive the payments and remit them to the lender. MERS’ rights under the deed are pursuant to a nominee capacity. In its ordinary meaning, a nominee represents the principal in only a "nominal capacity" and does not receive any property or ownership rights of the person represented. See, e.g., Cisco v.Van Lew, 60 Cal. App. 2d 575, 583-84, 141 P.2d 433
(1943); see also Applebaum v. Avaya, Inc., 812 A.2d 880, 889 (Del. 2002) (referring to nominees "as agents of the beneficial owners"). The deed says that MERS acts "solely as nominee for Lender." There is no express grant of any right to MERS to transfer or sell the mortgage or even to assign its duties as nominee. Furthermore, MERS may not act on its own, independent of the direction of the specific Lender who holds the repayment interest in the security instrument at the time MERS purports to act. “An agent is authorized to do, and to do only, what is reasonable for him to infer that the principal desires him to do in light of the principal’s manifestation and the facts as he knows or should know them at the time he acts. (Hot Stuff, Inc. v. Kinko’s Graphic Corp., 50 Ark. App. 56, 59, 901 S.W. 2d 854, 856 (1995) citing Restatement (Second) of Agency § 33 (1958)) and (Mortgage Electronic Registration System, Inc. v. Southwest Homes of Arkansas, NO. 08-1299 (Sup. St. Ark 2009)). Florida law actually prevents MERS from foreclosing on property because it is not the note owner or note holder, and Florida law prevents MERS from acting in a fiduciary capacity relating to the loan.) In another forum, MERS argued that it is not authorized to engage in practices that would make it a party to either the enforcement of mortgages or the transfer of mortgages. In Mortgage Elec. Reg .Sys, Inc. v. Nebraska Department of Banking, 270 Neb. 529, 704 N.W. 2d 784 (2005), MERS challenged an istrative finding that it was a mortgage banker subject to license and registration requirements. The Nebraska Supreme Court found in favor of MERS, noting, “MERS has no independent right to collect on any debt because MERS itself has not extended any credit, and none of the mortgage debtors owe MERS any money.” 270 Neb. at 535. The Court in Nebraska further noted the following representation made by MERS: “MERS argues that it does not acquire mortgage loans and is therefore not a mortgage banker under § 45-702(6) because it only holds legal title to ' mortgages in a nominee capacity and is contractually prohibited from exercising any rights with respect to the mortgages (i.e., foreclosure) without the authorization of the . Further, MERS argues that it does not own the promissory notes secured by the mortgages and has no right to payments made on the notes. MERS explains that it merely “immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur.”
704 N.W. 2d 784, 787 (citing brief for MERS) (emphasis added). According to the Court, counsel for MERS further explained: [T]hat MERS does not take applications, underwrite loans, make decisions on whether to extend credit, collect mortgage payments, hold escrows for taxes and insurance, or provide any loan servicing functions whatsoever. MERS merely tracks the ownership of the lien and is paid for its services through hip fees charged to its . 16. MERS has no authority to sell or assign real property and/or mortgages and/or promissory notes as a trust or trustee for any entity. The note and mortgage at issue herein violates Florida public policy because MERS is not a trust company or bank, thus is operating unlawfully as a corporate fiduciary by obtaining legal title to real property in the State of Florida as a trust or trustee for the benefit of MERS and non . MERS has no authority to hold legal title to real property and/or mortgages or promissory notes in the State of Florida as a trust or trustee. MERS has no authority to neither sell nor assign real property and/or mortgages or promissory notes as a trust or trustee for any entity. MERS is acting as a trust or trustee without appropriate approval from the Florida Department of Finance. MERS cannot to act as a trust or trustee in the State of Florida because it does not now meet the registration requirements to be ed by the Florida Department of Finance. 17. In addition to being void because MERS cannot lawfully be a Grantee of a mortgage and/or promissory note acting solely as a nominee for a lender because MERS would be acting as a corporate fiduciary in mortgage when it lacks the capacity to act as a corporate fiduciary, the Security Deed of the Plaintiff naming MERS, acting solely as nominee, and thereby conveying legal title to the property to MERS, acting solely as nominee, as opposed to conveying legal title to the Lender, also causes a problem with the ability to foreclose on the property in the event of a default in repayment of the loan. The ability to foreclose on the property at issue is affected because the mortgage has been separated or split from the note. Loans originated with MERS as the original Grantee as in this case, purport to separate the borrower’s promissory note, which is made payable to the originating lender, from the mortgage, which contains borrower’s conveyance of legal title to MERS as nominee. The U.S. Supreme Court has held that “the note and the mortgage are inseparable.” Carpenter v. Longan, 83 U.S. 271, 274 (1872). See also Nagle v. Macy 9 Cal. 426, 1858 WL 818 (Cal. 1858) (“The debt and the mortgage are inseparable.”) Indeed, it
went on to state that a “mortgage can have no separate existence” from a promissory note. Carpenter, 83 U.S. at 274. As such, the MERS security agreement that purports to grant a deed independent of the promissory note as in this case, therefore attempts to convey something that cannot exist by law. In Missouri, appellate courts have found that MERS did not have the right to assign a deed of trust. In Bellistri v. Ocwen Loan Servicing, 284 S.W.3d 619 (Mo.App. E.D.,2009) MERS’ involvement in the loan effectively led to the stripping of deed of trust lien from the land. In this instance, Ocwen produced an assignment of the deed of trust from MERS to Ocwen. The Missouri Court of Appeals treated the recorded assignment as a legal nullity. Looking to the American Law Institute’s Third Restatement of Property Law the court stated: “Typically, the same person holds both the note and the deed of trust. In the Event that the note and the deed of trust are split, the note, as a practical matter becomes unsecured. Restatement (Third) of Property (Mortgages) § 5.4. Comment. The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. Id. Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. Id. The mortgage loan became ineffectual when the note holder did not also hold the deed of trust.” Ultimately, the Court held that “MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force.” The Court effectively quieted title in favor of Bellistri, stripping off the lien. In another decision in New York, In re Agard , No. 81077338, 2011 WL 499959, at *16 (E.D.N.Y. Feb. 10,2011) (“[W]ithout more, this Court finds that MERS’s ‘nominee’ status and the rights bestowed upon MERS within the Mortgage itself, are insufficient to empower MERS to effectuate a valid assignment of mortgage.”) More recently in an Atlanta court, Judge Amy Totenberg stated “that MERS assignment of a Security Deed without the note as a “nominee” to any entity is without force in the state of Georgia.” In Re: Michael L. Morgan vs. Ocwen Loan Servicing, LLC, & Mortgage Electronic Regristration Systems, Inc., and Merscorp, Inc. 1:10-CV-3555-AT In this case, Judge Totenberg ruled that Defendants’ Motion to dismiss Plaintiff’s claims for injunctive relief (Count II),
wrongful foreclosure (Count VI), negligence (Count VIII), intentional infliction of emotional distress (Count VII), and RICO (Count IX) was DENIED. 18. The Defendants recognize the precedent set in WM Specialty Mortgage, LLC v. Salmon, 874 So.2d 680 (Fla 4th DCA 2004) regarding the assignment of a mortgage. However, as the Second District Court of Appeals noted, 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 as of the date of the commencement of the action. The plaintiff ’s failure to meet the standing requirements as of the commencement of this foreclosure action renders the complaint fatally defective and, therefore constitutes misrepresentation as to who the Plaintiff really is. The assignment cannot post date the filing of this action if assignment does not relate back to the commencement of the litigation. Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005). Given the recent reported cases wherein it has been noted that there are more than 100,000 instances of fraudulent assignments perpetrated by banks, including Aurora, that particularly involved MERS as well, this matter should not simply be “swept under the rug,” but rather should be given great consideration. 19. In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Plaintiff is not entitled to maintain a foreclosure action in which it seeks to foreclose on a note which it does not own. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975) 20. When exhibits are inconsistent with the Plaintiff’s allegations of material fact as to whom the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983). 21. The First District Court of Appeals in Ohio has set crucial recent foreclosure case law, in Wells Fargo Bank, N.A. v. Byrd (2008), in where a Plaintiff who fails to submit proof that it is the "Real Party In Interest" when the complaint is filed is subject to dismissal with prejudice.
"A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of an action." Wells Fargo Bank, v. Byrd, 178 Ohio App.3d 285, 2008-0hio-4603, 897 N.E.2d 722 (2008). It went on to hold, " If plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law." 22. In one Florida case it was found that a separate entity may not maintain suit on a note payable to another entity unless the requirements of F.R.C.P. 1.210(a) are met. Concoran v. Brody, 347 So.2d 689 (Fla. 4th DCA 1977). 23. Furthermore, the Plaintiff alleges that it is the holder in due course on the subject mortgage and note, yet it is the belief of the Defendants that the note was part of larger securitization process and sold to several un-named parties and beneficial owners and any claims by Plaintiff, in the absence of the original note endorsed to Plaintiff, are a clear misrepresentation of the actual facts. 24. F.R.C.P. 1.130(b) provides in pertinent part: “Any exhibit attached to a pleading shall be considered a part thereof for all purposes.” Because the facts revealed by Plaintiff ’s exhibit are inconsistent with Plaintiff ’s allegations as to its ownership of the subject note and mortgage, those allegations are neutralized and Plaintiff ’s complaint is rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983). 25. It is the position of the Defendants that if the courts were to allow a Plaintiff to bring a cause of action in a scenario where the Plaintiff alleges that it owns a certain note and mortgage but fails to provide any evidence to the courts that this, in fact true, the courts would open the door to incredible harm to any homeowner whose home is secured by a mortgage. 26. Plaintiff lacks the legal standing to sue and seek foreclosure on the Defendants as Plaintiff was not a party to the mortgage contract. 27. The Plaintiff is legally barred from entering into evidence any alleged proof of standing per its refusal to address such demand for proof and ing by its own failure to reply in a timely fashion to Defendants’ Request for Production of Documents.
28. It is Defendants contention that the Plaintiff has unlawfully, fraudulently, and with intent to deceive, misrepresented to this Honorable Court that it had legal standing to file this action; wherein it has no legal authority to seek foreclosure on a mortgage which Plaintiff knew was not legally in its name. 29. Florida Rules Of Civil Procedure, Rule 1.420(b) provides, in relevant part, that "any 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 the court." In the matter of U.S. Bank National Assoc., as Trustee v. Ernest E. Harpster Sl-2007-CA-6684-ES, Judge Tepper ruled “The Plaintiff's complaint is dismissed with prejudice, based on the fraud intentionally perpetrated upon the Court by the Plaintiff. This Court has the power to dismiss a case a showing of a commission of fraud on the Court by a party.” 30. If the court were to allow the Plaintiff in this case to prevail in light of serious misrepresentation and fraud upon the court, it would result in a major injustice to the Defendant. The Court cannot be in a position of enabling Plaintiff and its attorneys to commit material misrepresentation or felony crimes. 31. Pursuant to F.S. 92.525, Plaintiff is required to include a “Verification” of the foreclosure complaint. In a 7-page written opinion by Judge Anthony Rondolino of the Sixth Judicial Circuit for Pinellas County, it was noted that “any verification of a foreclosure complaint must be in conformity with F.S. 92.525 as construed by Moss v. Lennar Florida Partners, 673 So.2d 84 (Fla. 4th DCA 1996)” and that because of this he will reject verifications based on “information and belief” or using language indicating the declaration is only true and correct “to the best of my knowledge and belief”. In this instant matter, such language is clearly used. 32. Pursuant to F.S. 57.001, Plaintiff is a foreign corporation and is required to post a nonresident cost bond. Defendant hereby requests that this Court require Plaintiff to post said bond as required by Florida Statutes. 33. Defendants are appearing Pro se, and pray that not only will this Motion to Dismiss/Strike be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” In Re. Erickson v. Pardus, 551 U.S. 89, 94 (2007), but at minimum, that they be allowed to amend their Motion to correct any and all deficiencies. In accordance with the Supreme Court of the
United States pro se Pleadings MAY NOT be held to the same standard as a lawyer’s and/or attorney’s; and whose motions, pleadings and all papers may ONLY be judged by their function and never their form. See: Haines v. Kerner; Platsky v. CIA; Anastasoff v. United States. See also: Platsky v. C.I.A., 953 f.2d. 25; In re Platsky: court errs if court dismisses the pro se litigant without instruction of how pleadings are deficient and how to repair pleadings. Whereas, per provision of F.R.C.P. 1.540(b), this Court has jurisdiction to Dismiss This Lawsuit with Prejudice upon such finding of Unconscionable and irresponsible conduct. WHEREFORE, Defendants respectfully request that this court grant Defendants’ Motion to Dismiss/Strike the Plaintiff’s foreclosure complaint with prejudice for all of the above foregoing reasons, enter an Order declaring the subject transaction rescinded with the result that Plaintiff’s security is void and unenforceable, award Defendants actual compensatory or statutory damages, costs, and any and all other relief, including declaratory and injunctive relief, to which Defendants may be entitled and for such other and further relief this Court may deem to be just and proper. Respectfully Submitted on this 5th day of June, 2012 by: _____________________________ , Pro-Se
_____________________________ , Pro-Se
_____________________________ , Pro-Se CERTIFICATE OF SERVICE The undersigned certifies that a true copy of this document has been sent by U.S. Certified Mail to the law offices of Johnson & Freedman, Attention Jayme Sellards, Esq, at 400 Northridge Road, Suite 1100 M/S 27, Sandy Springs, Georgia 30350 and to Mortgage Electronic Registration Systems, Inc., c/o CT Corporation System, RA, 1200 S Pine Island Road, Plantation, FL 33324 on this ______ day of June, 2012.
IN THE CIRCUIT COURT OF THE 7TH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, FLORIDA CIVIL ACTION AURORA LOAN SERVICES, LLC Plaintiff, vs.
CASE NO.: Civil Division: 32
; ET.AL., _________________________________________/ ORDER DISMISSING FORECLOSURE Defendants, , and, filed a motion on the 5th day of June, 2012 to dismiss Plaintiff’s Aurora Loan Services, LLC’s complaint, dated June 20, 2011 pursuant to Fla. R. Civ. P. 1.380(b)(C), 1.210(a), 1.140(b), 1.150(a), and 1.420(b) and for Plaintiff’s failure to comply with F.S. 92.525. The court hereby states: ____________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ ___________________________________________________________________________ It is hereby ORDERED, that the foreclosure complaint is _________________________ ______________________________________________________________________________ ______________________________________________________________________________ DONE and ORDERED in Daytona Beach, Volusia County, Florida, this ______ day of ______________________, 2011. ____________________________________ William A. Parsons Circuit Judge
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