IN THE CIRCUIT COURT OF THE 20th JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, STATE OF FLORIDA CIVIL DIVISION
CASE NO: 06-CA-4176
US BANK NATIONAL ASSOCIATION,
Plaintiff,
vs.
NORMAN CRAIG ANDERSON, et al.
Defendants.
_______________________/
DEFENDANTS NORMAN CRAIG ANDERSON AND SHANNON ANDERSON'S
VERIFIED MOTION TO STRIKE PLAINTIFF’S COMPLAINT FOR LACK OF
STANDING, AND FOR FRAUD UPON THE COURT, SUPPORTED BY A
MEMORANDUM OF LAW
TO REFUSE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR TO
GRANT SUMMARY JUDGMENT IN DEFENDANT'S FAVOR WITH
PREJUDICE AND SANCTIONS AND TO CANCEL THE ORDER SETTING
CASE FOR DOCKET SOUNDING ON JULY 19, 2010.
NORMAN CRAIG ANDERSON AND SHANNON ANDERSON [THE
ANDERSONS], after being sworn, deposed by the undersigned authority says
on personal knowledge as follows:Any and all statements made in this document are true and this statement
is made under the penalty of perjury and includes all evidence submitted,
Exhibits attached to this document and true copies of original documents
or those filed in public or Court records .
WHEREAS, THE ANDERSONS, pro se. pursuant to Fla.R.Civ.P. 1.150 and
1.130(a)(b), submits their Motion to Strike Plaintiff’s Complaint as a Sham
Pleading and moves this Court to Order Summary Judgment in their favor
and to Dismiss this Case with Prejudice, Sanctions and legal costs (if any)
they incur.
1.
Defendants state under penalty of perjury that this case, in common with
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huge numbers of others being processed through the Courts of Florida is a constantly
changing smorgasbord of fraud in which the Plaintiff, two separate law firms,
[individual attorneys and their non-licensed employees], Mortgage Electronic
Registration Systems [MERS], Chase Home Finance LLC [including various named
employees of that entity] - to include other parties not specifically mentioned in this
paragraph but who may be exposed in evidence, to be submitted in support of this
Motion – have all actively participated.
2.
To assist this Court Defendants have set out in the following sub-paragraphs
a table of fraudulent actions and violations of Federal and State laws that are present
in this case, prior to setting out [where further explanation is necessary] the details of
the items listed herein, noticing the Exhibits attached and including a Memorandum of
Law. [The Upper Case Letter ‘F’ at the end of a sub-paragraph indicates the action or
lack of action described therein is fatal to the Complaint ab initio].
a)
No Notice under the Fair Debt Collection Practices Act [FDCPA] has ever
been served on either Defendant by either of the two law firms who have
represented the Plaintiff in this action. F.
b)
Defendants have not received a notification through the US Mail of the
Notice of Re-Hearing of Summary Judgment that has been scheduled to
take place prior to the ‘Docket Sounding’ [of which they were noticed] on
July 19,2010, despite the fact that this Motion was filed in the Court on
June 9, 2010 and Judge Carlin dated his Order the following day on June
10, 2010. As documented in sub-paragraph d) hereinafter, no Default has
been obtained, and the Florida Default Law Group has included a
Certificate of Service on the filed document, but no such document has
been received. Defendants understand from other Defendants and from
information available on the Internet, including Attorney sources, that
this practice of printing a certificate of service, but not complying with it
is a regular practice by this law firm and other foreclosure mills. F.
c)
The Plaintiff in this case does Not have A Cause of Action against
Defendants, THE ANDERSONS, but in a series of attempts to perpetrate a
fraud upon this court in conjunction with two consecutive law firms
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allegedly acting as their counsel have made statements, manufactured
documents and file those documents in both the Public and Court
Records. F.
d)
Plaintiff attempted to obtain a Default on September 15, 2008 in a Motion
submitted to Judge McHugh. The copy of the Default Issued Notice
prepared by Plaintiff’s Counsel and filed in the Court Records shows a line
drawn through the signature are provided for Judge McHugh and the
words, “NOT ISSUED No Orig. Affid. Pub. has been filed.” No further
attempt to secure a Default has been made and the record shows a failure
of Due Process of Service. Summary Judgment is inappropriate. F.
e)
Plaintiff's have filed in the Court three separate hearsay Affidavits Of
Amounts Due and Owing all of which claim that Chase Home Finance LLC
is acting as a loan servicer on behalf of the Plaintiff. Loan Servicers are
appointed under the provisions of a Pooling and Servicing Agreement
[PSA] following the alleged sale in the secondary market of a pool of
mortgages into a Real Estate Mortgage Investment Conduit [REMIC] and
is subject to the Internal Revenue Code, IRC 860 and the provisions of the
PSA. It is therefore impossible For US Bank National Association to own
and hold the said Note and Mortgage as stated in their Complaint. F.
f)
Plaintiff states in paragraph 4 of the Complaint, “The Original Promissory
Note was lost or destroyed subsequent to Plaintiff's acquisition thereof,
the exact time and manner of said loss or destruction being unknown to
Plaintiff.
g)
This statement conflicts with the statement contained in the Comments
Of The Florida Bankers Association submitted to the Supreme Court of
Florida. Case No. 09-1460, that “the reason for lost note complaints was
that all Original Notes were deliberately eliminated immediately after the
loan closing upon conversion to an electronic file.”
h)
Plaintiff has failed to attach the Promissory Note as required by
Fla.R.Civ.Pro.1.130(a), but stated to the Court that it had attached a copy
[which was not so attached] despite also stating that the Note had been
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lost Or destroyed. Plaintiff has therefore failed to produce any “document
upon which action may be brought” to demonstrate that it has a ‘Cause of
Action’ in this matter. F.
i)
The Original Promissory Note states in paragraph 1 “Lender is AMERICAN
MORTGAGE GROUP INC.” and further states, “I understand that Lender
may transfer this Note. Lender or anyone who takes this Note by transfer
and who is entitled to receive payments under this Note is called the
“Note Holder.” Despite claiming in the Complaint that Plaintiff owns and
holds said Note by virtue of the endorsement/allonge, which it further
claims to have attached, no such endorsement/allonge was so attached.
Plaintiff has therefore, failed to show a Cause of Action by attaching a
Promissory Note to the Complaint naming said Plaintiff as the ‘Lender’ as
required by Fla. R.Civ.P. 1.130. F.
j)
The Mortgage Deed filed in the Public Records of Lee County and attached to
the Complaint states, “Lender is AMERICAN MORTGAGE GROUP INC. ” and
further states, “MERS is a separate Corporation that is acting solely as
nominee for Lender and Lender’s successors and assigns. MERS is the
mortgagee under this Security Instrument.” The Complaint states,
“NORMAN CRAIG ANDERSON AND SHANNON LYNN ANDERSON executed
and delivered a mortgage securing payment of same to MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS INC., AS NOMINEE FOR
AMERICAN MORTGAGE GROUP INC., which mortgage was recorded on
March 24, 2006, in Official Records Book 20060001247455, of the Public
Records of Lee County Florida…” This is an admission that the Mortgage
Deed was separated from the obligation contained in the Promissory
Note Ab initio. F.
k)
Plaintiff did however file an assignment of mortgage [together with the
Note] - purportedly executed by MERS - in the Public Records of Lee
County Florida on October 3, 2007 [over a year after its purported
execution on October 2, 2006 and the filing of this action on September
27, 2006]. In common with all such MERS Assignments, this one is
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fraudulent and the multiple reasons for this statement will be evidenced
hereinafter. F.
l)
In brief, MERS has no authority to assign anything, according to its own
Rules and to many Federal and State Court trial and Appellate decisions
at the trial and Appeal levels. Also in common with all such fraudulent
Assignments this one claims [buried in the body of the Assignment
document] to have also transferred the Note [acting as a nominee for
American Mortgage Group Inc.]. MERS has no standing in any Promissory
Note where it has been designated as Mortgagee in a Mortgage Deed, in
fact possessing almost no power to do anything other than as a ‘Nominee’
acting on behalf of the lender in respect of that Mortgage Deed only and
cannot under any circumstances possess the authority to transfer any
Promissory Note, including the one in this case. F.
m)
The document claims to have been signed and notarized in California on
October 2, 2006 as “a replacement for the Original Assignment” [also
mysteriously and without further explanation ‘lost’]that was signed on an
unspecified/unknown date that, coincidentally and in conformity with
thousands of other similar fraudulent documents filed by this Plaintiff
and its various foreclosure mill attorneys, just happens to have been prior
to September 26, 2006, the day before this lawsuit was filed, to
manufacture apparent compliance with Fla.R.Civ.Pro.1.130(a) by
falsifying a Cause of Action against the Defendants in this case upon the
date when the case was filed. F.
n)
To have a cause of action in a foreclosure suit the Plaintiff must be the
Holder-in-Due-Course of the Promissory Note, entitled to receive the
payments from it and be the Owner of the Mortgage recorded in the
Public Records prior to the date upon which suit is filed. Thus on more
than one count, Plaintiff thus wrongfully and fraudulently represented
to this Court that it had the legal standing to not only file the instant
action, but to also foreclose on a Mortgage and Note that it does not
and cannot own. F..
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o)
The record does not verify that Plaintiff has suffered any damages other
than those directly attributable to their own deliberate and ongoing
frauds. For claim of damages, to be admissible as evidence, it must
incorporate records such as a general ledger and accounting of an
alleged unpaid promissory note and the person responsible for
preparing and maintaining the account general ledger must provide a
complete accounting which must be sworn to and dated by the person
who maintained the ledger. Plaintiff has not provided any accounting to
Defendant or to the Court. To the contrary, Plaintiff appears to be using
this Court to achieve a windfall of a free residential property. F
p)
This purported ‘Assignment of Mortgage’ represents major and
multiple frauds upon the Court,[ which are pleaded with specificity
hereinafter] and which violate Florida Criminal Statutes 817.545
Mortgage Fraud, 831.01 F.S. Forgery, 83102 F.S. Uttering forged
instruments, and 831.06 Fictitious Signature of Officer of Corporation
by ???????? names of signatories?????? and/or other at present
unknown parties. F.
q)
Further violations of Florida Statutes include the failure to execute the
Assignment under the Corporate Seal of MERS or to verify the identity,
authority, or genuineness of the titles adopted by the alleged Vice
President and Assistant Secretary of MERS [both of these individuals
can probably be proven to be employees of Chase Home Finance
LLC, the Loan Servicer] – they are certainly not employed by MERS .F.
r)
The Summary Judgment notice that was filed in court on December
21, 2007 stated that the Plaintiff would produce the original Note
[which they previously claimed to have been lost or destroyed] at the
Summary Judgment Hearing. However, that Hearing did not take
place. In fact, it was subsequently scheduled for Hearing in a Notice of
Hearing Summary Judgment on September 29, 2008 in a Rocket
Docket Hearing before Judge McHugh, but mysteriously canceled
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immediately after the event and filed in the Court Records at 1:52 PM
on that day.
s)
Defendants restate sub-paragraph c) hereinbefore. The three
Affidavits of Amounts Due and Owing are inadmissible hearsay,
allegedly created by employees of non-party CHASE HOME FINANCE
LLC. [Chase]. The first two submitted to the Court are signed by two
different persons claiming to be the Vice President of Chase, both with
the responsibility for maintaining the records and both of whom are
located in San Diego CA., but the third different person also making
the same claims states that she is a Vice President of Chase, but in
Franklin, Ohio. Further the copy document filed in the Court was
drafted to be signed and notarized in San Diego, CA, but was altered
to read Franklin Ohio.
t)
This signor of the third Affidavit of Amounts Due and Owing, is Witney
K. Cook. This person is a known ‘Robo-signor’ who is estimated to
sign over 2000 of these fraudulent and hearsay affidavits on every
business day, without any knowledge as to the truth or otherwise of the
statements she is signing.
u)
All three of these hearsay affidavits constitute a further attempt to
manufacture evidence and constitute further fraud upon the Court. F.
v)
Defendants were not personally served at any time. Despite being denied
service of process, Plaintiffs continued to file further papers in the court
and set Hearings, ex-parte, in contravention of Fla.R.Civ.Pro1.500 without
ever mailing any of those papers to Defendants. This behavior has been
consistent and continued to include the Notice of Hearing filed the day
before Judge Carlin issued his Order for Docket Sounding.
w)
Court (Judge McHugh) did not Issue Default applied for on September
15,2008 because of non publication of service, but on September 17, 2008
Plaintiff noticed a Hearing to hear Summary Judgment on September 29
2008, but cancelled the Hearing after the event on the day of the Hearing.
x)
No further action was taken by Plaintiff until June 9, 2010 when it
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secheduled a Re-Hearing for July 19, 2010.
y)
Defendants would have been completely unaware of that improper
Hearing, arranged ex-parte, but for examining the Court records following
their receipt of Judge Carlin’s Order to Set Docket Sounding, in which he
stated that a Motion for Summary Judgment could be heard if appropriate
by either party. At that time the Judge should have known that this
improper Hearing had already been scheduled as it was recorded in the
Court records.
z)
Defendants, therefore move this Court to Strike Plaintiff’s claim and not
to hear Plaintiff’s Motion for Summary Judgment at the ex parte Hearing
scheduled for July 19, 2010, for all the fraudulent actions taken by them,
their failure to serve due process upon Defendants and their attempts to
violate the Rules of Civil Procedure. Further, Defendants ask that the
Order to Set Docket Sounding issued by Judge Carlin be vacated as
inappropriate to this case. F.
3.
According to the Complaint filed in the Court on September 27, 2006 and the
MERS Assignment of Mortgage [which purported to include the Note by the
insertion of the words “together with the Note”] filed in the Public Records on
10/03/2007. U.S. Bank National Association was not in possession of the original
Note or entitled to enforce it when the loss occurred. Neither was U.S. Bank National
Association in possession of the Note or the Mortgage on September 27th 2006 and
thus lacked Standing to bring the action ab initio.
4.
Further, MERS had no Standing or Authority to execute such an Assignment
of either the Mortgage or the Promissory Note and would not have possessed any
Standing to take such action, even if the alleged officers of MERS who executed that
Assignment were genuine vice presidents and/or assistant secretaries of that entity,
which they were not.
5.
Therefore, even if the purported Assignment had been executed before the
Complaint was filed, which it was not, it would have been ineffective and known to
be fraudulent at the time of its manufacture and subsequent filing in the public
records by Plaintiff’s attorneys who have named themselves in the Complaint and
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subsequent papers filed in the Court. As previously stated these actions constitute
violations of the specified Florida Criminal States.
6.
Contrary to the Complaint, US Bank National Association did not acquire the
note from a party (in this instant case, MERS) who was entitled to enforce the note.
In fact, MERS was not entitled to assign the note to any party by their own
admission in the Supreme Court of Nebraska. Further, MERS, by it’s own admission
in the assignment, was not in possession of the original note when the loss occurred.
In the instant case Plaintiff cannot prove the existence of the note in question or
who the true beneficiaries of that instrument are, since the Plaintiff has stated that
the original note was lost, misplaced or destroyed, and neither the Plaintiff nor
MERS purporting to be the prima face Assignor of both the Mortgage and the Note
when fraudulently transferring those two instruments to the Plaintiff, has in their
possession or can swear to the contents of the original Note having never seen it, or
the subsequent accounting or general ledger, the court can not determine who, if
any party or parties has a course of action against this note. A proper chain of
custody cannot be established.
7.
The Mortgage filed in the public records, quoted and copied as an attachment to the
Complaint is clearly not in the name of the Plaintiff, who therefore must necessarily rely
upon a valid assignment, which does not exist. Further as Plaintiff has failed to produce any
evidence of the existence of a Promissory Note endorsed over to its ownership [despite
claiming to have attached it to the Complaint and having made subsequent promises that it
would be producing an Allonge and to have purported to have taken ownership of that Note
through a fraudulent MERS Assignment it lacks Standing or any Cause of Action against
Defendants as a matter of law.
8.
Refer to UCC 3-309 where two conditions must be met before a Court can reinstate a
lost Note. 1. The party must be entitled to enforce the instrument when the loss of possession
occurred OR 2.) Have directly or indirectly acquired ownership of the instrument from a
person who was entitled to enforce the instrument when the loss of possession occurred.
Since neither US Bank, nor MERS was entitled to enforce the instrument at that time, or even
to be able to state with any accuracy the time at which the alleged loss occurred, neither of
those two conditions have been met, therefore U.S. Bank National Association is NOT
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entitled to enforce this instrument and its request to re-instate the Note on the grounds stated,
is known by them and their Attorneys to be fraudulent.
9.
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.
Despite being named as the Mortgagee in the Security Instrument it was not
designated as the Lender. Neither was it ever designated as the Note Holder. Nor
was it ever entitled to receive the payments generated by that negotiable
instrument – all three of which are pre requisites of Standing to foreclose on the
Mortgage [Security Instrument].
10.
Therefore, MERS has no ownership or other substantive rights itself and
cannot assign what it does not own. "A nominee of the owner of a mortgage may not
effectively assign that mortgage without being instructed and authorized by their Principal.
As in the instant case where the subject mortgage is created for the specific purpose of
increasing the security of the Promissory Note Holder under no circumstances can MERS
transfer the ownership of the Promissory Note in which they are not named in any capacity to
another for want of an ownership interest in said note. The mass production of such MERS
Assignments of Mortgages that just happen to add the words “together with the Note” in the
center of those documents is fraud on a grand scale. The subject Assignment is one of many
thousands of such blatant fraud upon this Court.
11.
There is no evidence of record that establishes that MERS was authorized to assign
anything to Plaintiff, and therefore, the assignment was invalid. Even if the assignment were
valid, it was not executed until after the complaint was filed. Therefore, Plaintiff s standing at
the inception of the case was based entirely on the complaint and the exhibits attached
thereto. It appears on the face of those exhibits that an entity other than Plaintiff has standing,
and those exhibits control over contrary allegations contained in either version of the
complaint. Plaintiff lacks standing now based on the substantive deficiencies with an
assignment from MERS. Plaintiff lacked standing at the inception of the case based on those
substantive deficiencies and the timing of the execution of the assignment. Absent standing,
there is no justiciable controversy between the parties, and this case must be dismissed.
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WHEREAS, Defendants restate paragraphs 2a) through 2z) s total of 22 reasons to
Strike Plaintiff’s Complaint plus paragraphs 3 through 10 and moves this Court to
make an appropriate Order with prejudice, sanctions against both Plaintiff and their
counsel, legal costs [if any are incurred] ) and any and all further relief that this
Court may consider appropriate for participating in multiple frauds upon the Court
MEMORANDUM OF LAW
Defendants THE ANDERSONS file and serve their Memorandum of Law In
Opposition to the Plaintiff’s Motion for Summary Judgment and in support of their
Motion to Strike Plaintiff’s Complaint and states:
12.
Defendants re-allege and reincorporate all matters in their foregoing Motion
to Deny Plaintiff’s Motion For Final Summary Judgment, to Strike Plaintiff’s
Complaint For Lack Of Standing And Fraud Upon The Court, herein by reference,
including all Exhibits thereto.
13.
The summary judgment standard is well-established. "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) (citing Fla.R.Civ.P. 1.510(c)).
14.
The party moving for summary judgment must conclusively show the
absence of any genuine issue of material fact and the court must draw every
possible inference in favor of the non-moving party. Caresito v. School Bd. Of
Broward County, 866 So.2d 754, 755 (Fla. 4th DCA 2004)(emphasis supplied), citing
Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002).
15.
BAC FUNDING CONSORTIUM INC. ISAOA/ATIMA v.GINELLE JEAN-
JACQUES, SERGE JEAN-JACQUES, JR., and U.S. BANK NATIONAL
ASSOCIATION Case No. 2D08-3553 (DCA 2nd District 2010) clearly establishes that
the Plaintiff must provide sufficient proof of standing on the note, before attempting to
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foreclose. Additionally, this case found that it is essential for the trial courts to have
sufficient evidence before them prior to a summery judgment being issued. In their ruling
and pertinent to this case, the DCA ruled that “…it is especially important that trial
courts abide by the proper standards and apply the proper burdens of proof when
considering a summary judgment motion in a foreclosure proceeding.” Further, the
Florida DCA ordered that “Accordingly, because U.S. Bank failed to establish its status
as legal owner and holder of the note and mortgage, the trial court acted prematurely in
entering final summary judgment of foreclosure in favor of U.S. Bank. We therefore
reverse the final summary judgment of foreclosure and remand for further proceedings.”
(See attached Exhibit A)
16.
AURORA LOAN SERVICES, LLC vs. JUDITH MENDES DA COSTA (20th
Judicial Circuit Court, Collier County, CASE NO.: 09-142-CA) The Collier County
Court found that the assignment by MERS had no validity, that EVEN if the assignment
were valid, that the assignment took place after the case had been filed, therefore the only
party that could be assumed having the right to foreclose was not before the court.
Pertinent to this case, the 20th Circuit Court for Collier County ruled “There is no
evidence of record that establishes that MERS was authorized to assign anything to
Plaintiff, and therefore, the assignment was invalid. Even if the assignment were valid, it
was not executed until after the complaint was filed. Therefore, Plaintiff s standing at the
inception of the case was based entirely on the complaint and the exhibits attached
thereto. It appears on the face of those exhibits that an entity other than Plaintiff has
standing, and those exhibits control over contrary allegations contained in either version
of the complaint. Plaintiff lacks standing now based on the substantive deficiencies with
an assignment from MERS. Plaintiff lacked standing at the inception of the case based on
those substantive deficiencies and the timing of the execution of the assignment. Absent
standing, there is no justiciable controversy between the parties, and this case must be
dismissed” (See attached Exhibit B)
17.
Plaintiff’s various Affiants to the filed Affidavits Of Indebtedness failure to
attach documents to authenticate and identify any of the books, records, accounts
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and other [unspecified documents] purported to be kept in this matter violates
Florida Statute 90.901 and Fla. R. Civ. P.1.510(e), which provides in part, “ that
“affidavits…shall show affirmatively that the affiant is competent to testify to the
matters stated therein”0; Zoda v. Hedden. 596 So. 2d 1225, 1226 (Fla. 2nd 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 her affidavit as affiant was unable to authenticate the
documents referred to therein).” 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).
18.
Fla. R. Civ. P. 1.501(e) provides in pertinent part, that “sworn 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.
The affiant stated that the information was transmitted by, persons with
personal knowledge of the facts. 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 Forfeiture of 1998 Ford pickup, Identification
No. 1FTZX1767WNA34547, 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).
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
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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)).
19.
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
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
So2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Docese of Orlando, 540 So 2d 174
(Fla. 5th DCA 1988); Page v. Stanly. 226 So, 2d 129 (Fla.4th DCA 1969).
20.
Thus there is ample precedent for striking the Affidavits of Indebtedness as
all three separate affiants have admitted no personal knowledge of the facts stated
therein. As employees or agents of what they admits to as being “the servicer of
the loan transaction” affiants had no idea of the alleged underlying transaction
between the plaintiff and the Defendants. Indeed they could not have had any such
knowledge as no such transaction or obligation to the Plaintiff exists, or has ever
existed. Affiant was not engaged by the Plaintiff with respect to the alleged
underlying transaction between the Plaintiff and the Defendant. Neither did they
have any contact with the Defendants at that time. ”Therefore, affiants’ statemenst
that Plaintiff services the note and mortgage forming the basis of this action cannot
be authenticated from their personal knowledge. Further, the Affidavits fail to set
forth with any degree of specificity what duties the Affiants perform for the Plaintiff
as an employee or agent of the loan servicer. No information is given as to how they
were appointed and by whom for that purpose. Because affiants have no personal
knowledge of the underlying transaction between the Plaintiff and Defendant, any
sworn statements they make which references this underlying transaction (such as
the fact that Plaintiff is allegedly owed the three different principal amounts stated
in the three different hearsay affidavits) 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
14
truth of the matter asserted.” Fla. Stat. 90.801(1)(c) (2007). The Court’s Order to
Set Docket Sounding with its many conditions would further prejudice the
Defendant’s right of equal access and justice in this frivolous lawsuit where the
Plaintiff and its various counsels have engaged in multiple fraudulent activity upon
this Court.
21.
Defendants are aware of the “Records of Regularly Conducted Business
Activity” exception. Fla. Stat. 90.803(6) (2007). The exception is not applicable in
this case. No memorandum, reports, records, or data compilation have been offered
by the Plaintiff, other than three separate and unverified purported computer print
outs are not even signed and does not mention the Defendants’ name.
Finally, the
Affidavits were unable to state the basic fact as to the true status of the Plaintiff or
its relationship with Defendants, if any.
22.
Because affiant’s statements in this 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.
23.
Further this Affidavit included impermissible conclusions of law not
supported by facts.
24.
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).
25.
Furthermore, an affidavit that 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).
26.
In this case the Affidavits contained conclusions of law that were not
supported by facts stated therein. Specifically, affiants averred that the Plaintiff ;
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a)
Owns and Holds the note in a principal amount described in the
Plaintiff’s Complaint dated September 27, 2006.
b)
Plaintiff holds and owns the Promissory Note and Mortgage.
c)
the Plaintiff retained The Florida Default Law Group. to represent it in
this matter and has agreed to pay a reasonable fee for said
representation.
27.
These constitute three legal conclusions, but fail to support either of those
conclusions with any documentary evidence to support those legal conclusions.
Neither do any of the Affiants claim to be licensed to practice law.
28.
If the evidence raises any issue of material fact, if it is conflicting, or if it
permits different inferences, the matter is to be submitted to the jury. Johnson v.
Treasure Coast Plaza Ltd, 670 So.2d 1199, 1201 (Fla. 4th DCA 1999), citing Moore v.
Morris, 475 So.2d 666, 668 (Fla. 1985).
29.
If the record reflects even the possibility of any issue or the record raises
even the slightest doubt that an issue might exist, that doubt must be resolved
against the moving party and summary judgment must be denied. Nard, Inc. v.
DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA
2000)(emphasis supplied), citing Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA
1995).
30.
When 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." Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla.
2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980
(Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment
before the defendant files an answer, "it [is] incumbent upon them to establish that
no answer that [the defendant] could properly serve or affirmative defense it might
raise" could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese
16
Price Found., Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987) (holding that when a
plaintiff moves for summary judgment before the defendant files an answer, "the
plaintiff must conclusively show that the defendant cannot plead a genuine issue of
material fact").
31.
In LaSalle Bank Nat. Ass'n v. Lamy, 824 N.Y.S.2d 769, 2006 WL 2251721
(Sup.2006). When a state agency found that MERS is a mortgage banker subject to license
and registration requirements, MERS appealed to the Supreme Court of Nebraska and
outlined its very limited role as nominee. "Subsequently, counsel for MERS explained that
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 membership fees charged to its members."
32.
In Mortgage Electronic Registration Systems, Inc. v. Nebraska Department of
Banking and Finance, 704 N. W.2d 784 (Neb.2005). "MERS argued that it does not acquire
mortgage loans and ... only holds legal title to members' mortgages in a nominee capacity and
is contractually prohibited from exercising any rights with respect to the mortgages (i.e.,
foreclosure and assignment) without the authorization of the members. Further, MERS
argued that it does not own the promissory notes secured by the mortgages and has no right
to payments made on the notes." Id. Emphasis added. "Documents offered during the
Department hearing support the limited nature of MERS' services."
33.
Based on the explanation from MERS itself and documents presented by MERS and
reviewed by the Supreme Court of Nebraska, it is undisputed that MERS serves in a very
limited capacity and holds no substantive rights. MERS is contractually prohibited from
17
exercising any rights in a foreclosure case without the authorization of the lender, and that
prohibition was confirmed by MERS itself.
There is no evidence of any authorization being possessed by MERS in the instant case.
Other courts around the country have likewise recognized the limited role that MERS plays
as nominee. "We specifically reject the notion that MERS may 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. .. Nothing in the record shows that MERS had
authority to act." Mortgage Electronic Registration Systems. Inc. v. Southwest Homes of
Arkansas, 2009 WL723182 (Supreme Court of Arkansas, 2009). "MERS's role in this
transaction casts no light on the contractual issues raised in this case." Id. "The relationship
that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all
the rights given a buyer." Landmark National Bank v. Kesler, 216 P.3d 158 (Supreme Court
of Kansas, 2009). "MERS presents no evidence as to who owns the note, or of any
authorization to act on behalf of the present owner." In Re Vargas, 396 B.R. 511
(Bankr.C.D.Cal. 2008). "As noted above, MERS purportedly assigned both the deed of trust
and the promissory note to Consumer ... however, there is no evidence of record that
establishes that MERS either held the promissory note or was given the authority by
American Mortgage INC to assign the note ... Accordingly, the Court should conclude that
there is insufficient evidence that Consumer has standing to proceed with this litigation."
Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D.Cal. 2008). Not only are
there substantive deficiencies with an assignment from MERS, but the instant assignment
was also untimely. The assignment was constructed on October 2, 2006, However, the
assignment was not filed in the public record until October 3, 2007 - more than twelve
months after the assignment was completed. As stated above, there is no indication on the
18
assignment that the note and mortgage were physically transferred prior to that date. "[T]he
plaintiffs lack of standing at the inception of the case is not a defect that may be cured by the
acquisition of standing after the case is tiled." Progressive Exp. Ins. Co. v. McGrath
Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005). "If on the date the Provider
tiled the original statement of claim Mr. Joseph had not assigned benefits to the provider,
only Mr. Joseph had standing to bring the action. It follows that the Provider would have
lacked standing under these circumstances, and the case should have been dismissed." Id.
CONCLUSIONS
34.
Plaintiff herein has moved for summary judgment without complying with
the Fair Debt Collection Practices Act and has never perfected service on any court
papers, including the Lis Pendens and Original Complaint. Defendants state under
penalty of perjury and will swear testimony at the Hearing on July 19, 2010 that
they have never received any of the court papers that have borne a Certificate of
Service listing them on the ‘attached list.’ All Court Hearings, scheduled [including
those cancelled] have been arranged ex-parte despite Plaintiff’s request for Default
being ‘Not Issued’ by the Court because no process of service existed.
35.
Hearsay Affidavits of Amounts Due and Owing were filed by Plaintiffs
Attorneys who arranged for their production by non-party, CHASE HOME FINANCE
LLC, who claim without any evidence to be the loan servicer, to deliberately mislead
this Court with the sole purpose of obtaining unjust enrichment by stealing real
property, the homestead of the Defendants and obtaining the Courts co-operation in
their fraudulent activities and that of their Attorneys at the Florida Default Law
Group. Plaintiffs have no Standing, have not suffered any damage at the hands of the
Defendants, have come to this Court with unclean hands, their Attorneys have been
previously sanctioned and recently severely criticized by Judge Bailey, the former
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Chair of the Supreme Court of Florida Task Force on Foreclosures when she
sanctioned HSBC Bank and cancelled the loan on the property. In this case both
Plaintiff and its counsel were aware that it had deliberately submitted a Sham
Pleading and that their statements in the Complaint stating that they had filed in the
Court an Allonge to the [lost] note and the Assignment of Mortgage in the knowledge
that no such documents existed and knew that they had falsified these documents in
order to defraud the Court. Further both Plaintiffs and their Attorneys were aware,
or should have known that those documents were not so attached. Further they
were not only aware, but complicent in the manufacture of a fraudulent [and
backdated to appear to posses a Cause of Action on the date the action was filed]
MERS Assignment of Mortgage and its subsequent filing all in violation of Florida
Criminal Statutes and the provisions of Fla.R.Civ.Pro.1.130.
36.
The Plaintiff’s Complaint alone raises numerous genuine issues of material
fact including who the real party in interest is or may be, the lack of any valid
transfer of the full and unencumbered interest in the Note and Mortgage, and states
,[in conflict with the Florida Bankers report to the Supreme Court of Florida] that it
had ‘lost’ the Original Note which they knew, or should have known was deliberately
eliminated immediately after the loan closing.
37.
These genuine issues of material fact alone, which have been raised within
the Plaintiff’s own Complaint and Plaintiff’s conflicting filings in the Court and in the
public records preclude the granting of summary judgment as a matter of law.
38. Plaintiff is NOT the owner of the Note, the original promissory note was NOT
lost or destroyed subsequent to Plaintiffs acquisition, Defendant did NOT execute
and deliver a promissory note to AMERICAN MORTGAGE GROUP INC and a
purchase money mortgage to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS
INCORPORATED AS NOMINESS FOR AMERICAN MORTGAGE GROUP INC. and the
full amount [or any amount] is NOT due to Plaintiff, the three conflicting Affidavits
of Indebtedness are unverified hearsay documents, longstanding and recent
decisional law clearly states that where the slightest doubt exists summary
judgment is not appropriate and the Court does not have subject matter jurisdiction
by virtue of the frivolous nature of this lawsuit.
20
39.
When exhibits are inconsistent with Plaintiff’s allegations of material
facts as to who the real party in interest is, such allegations cancel each other out.
Fladell Greenwald v. Triple D Properties, Inc. 424 So.2d 185, 187 (Fla. 4th DCA 1983)
Costa Bella Development Corp. v. Costa Development Corp, 411 So.2d 114 (Fla. 3d. DCA
1983). 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, 411 So.2d 114 (Fla. 3d. DCA 1983).
40.
The Complaint is filed by THE BANK OF NEW YORK MELLON F/K/A THE
BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT INC.,
ALTERNATIVE LOAN TRUST 2006-2CB MORTGAGE PAS-THROUGH CERTIFICATES.
The SEC filings quoted hereinabove clearly establish that the quoted ‘Trust’ is a
securitized REMIC Trust that would have required a transfer of the Note and the
Mortgage at the time this ‘Trust’ certified to the IRS that it had purchased the subject
and all other loans ‘without recourse’ from CWALT INC., who in turn would have
been required to show negotiated transfers of the note and assignments of the
mortgage showing a chain of title from the ‘Lender’ – AMERICAS WHOLESALE
LENDER – through each of COUNTRYWIDE HOME LOANS INC., PARK GRANADA
41.
Affiant, Barraza, purports to have personal knowledge of the loan but does
not verify that statement and Defendant understands that she will not be in Court to
testify and be subject to cross examination and her Affidavit is hearsay and
inadmissible. Further the Affiant states that the records are compiled in a computer
data bank and that those records properly reflect loan payments, charges and
advances that are contemporaneously noted in the records at the time of the
applicable transactions by persons whose regular duties include recording this
information.
42.
The admission that the records are compiled by third parties and in an
electronic form must mean that the Affiant has no personal knowledge of the facts
and cannot produce any books of account. Florida Statute 90.901 states in pertinent
part, that authentication or identification of evidence is required as a condition
21
precedent to its admissibility.” The failure to authenticate documents referred to in
this Affidavit renders the affiant incompetent to testify as to the matters referred to
in the affidavit.
43.
Affiant Barraza is believed to be one of hundreds of such people employed by
loan servicers who are known to specialist Foreclose Defense Attorneys as ‘Robosignors.’ In the event that this Court does not Strike this Sham Complaint Defendant
intends to depose Affiant Barraza.
Thus on more than one count, Plaintiff through its counsel, thus
wrongfully and fraudulently represented to this Court that it had the legal
standing to not only file the instant action, but to also foreclose..
WHEREAS Defendants THE ANDERSONS, move this Court to deny the Plaintiff’s
Motion For Summary Judgment, Strike With Prejudice Plaintiff’s Complaint as a Sham
Pleading, to Order Summary Judgment in Defendants’ favor, to Dismiss this Case with
Prejudice, Sanctions and legal costs (if any) the Defendants incur and any other and
further relief which is just and proper.
In the event that this Court does not Order the Plaintiff’s Motion to Strike or fails to
Order the Dismissal of this case, Defendant intends to instruct legal counsel and to
file an Answer, Affirmative Defenses, Motion, a Counterclaim, Declaratory Relief,
Demand for Jury Trial and any other appropriate pleadings that their future counsel
advises. Having regard to the twenty-six listed frauds, the Complaint and all
subsequent filings are a Nullity. Defendants therefore move this Court [in addition
to matters previously moved to Vacate/Set Aside the inappropriate Order for
Docket Sounding listed for July 19, 2010.
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CERTIFICATE OF SERVICE
THE UNDERSIGNED HEREBY CERTIFIES that a true and correct copy
of the foregoing Verified Motion has been forwarded by fax and via certified,
return receipt requested, U.S. Mail, to Kenzi n. Sadlak, Florida Default Law
Group, 21932 SW94 Ave, Cutler Bay 33190-1237 on this 12tht day of July, 2010
____________________________
____________________
NORMAN CRAIG ANDERSON
SHANNON ANDERSON
STATE OF FLORIDA
COUNTY OF LEE
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the
aforesaid County and State, on this the 12th day of July, 2010 within my jurisdiction,
the within named NORMAN CRAIG ANDERSON AND SHANNON ANDERSON who
acknowledged to me that they are the Affiants signing this document, known to me
to be the persons whose names are subscribed to the foregoing instrument, and
they acknowledged to me that they executed the same for the purpose and
consideration therein expressed as their act and deed and in the capacity therein
stated. They are personally known to me or produced Florida Drivers Licenses
proving their Identities and did take the oath.
WITNESS my hand and official seal in the County and State last aforesaid the
_____day of _____________, _____.
____________________________________________
Notary Public
23
ATTACHED EXHIBITS
A.) BAC FUNDING CONSORTIUM INC. ISAOA/ATIMA v.GINELLE JEANJACQUES, SERGE JEAN-JACQUES, JR., and U.S. BANK NATIONAL
ASSOCIATION Case No. 2D08-3553 (DCA 2nd District 2010)
B.) AURORA LOAN SERVICES, LLC vs. JUDITH MENDES DA COSTA (20th
Judicial Circuit Court, Collier County, CASE NO.: 09-142-CA)
24