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Foreclosure Overturned Due To Faulty Assignment

Foreclosure Overturned Due To Faulty Assignment

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Published by divinaw
This is a trial court judgment overturning a foreclosure judgment that took place several YEARS earlier due to a faulty assignment of the mortgage note.
This is a trial court judgment overturning a foreclosure judgment that took place several YEARS earlier due to a faulty assignment of the mortgage note.

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Categories:Business/Law
Published by: divinaw on Mar 19, 2013
Copyright:Attribution Non-commercial

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09/08/2013

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IN
THE
CRCUIT
COURT OF
THETWELFTH
JUDICAL
CRCUIT
IN
AND
FOR
SARASOTA
COUNTY,FLORIDA
DEUTSCHE
BANK NATIONAL
TRUST
COMPANY,AS
INDENTURE TRUSTEE
UNDERTHE INDEENTURE
RELATING
TO
IMH
ASSETS
CORP.,
COLLATERAUZED
ASSETBACKED
BONDS,
SERIES
Z004-10
Plaintiff,
vs.
ELLEN
LAPERRJERE,
Defendant.
CASE
NO.
ZOO8
CA
OUS87
NC
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ORDER ON DEFENDANT'S
MOnON
TO
SETASIDE
FOREaOSURE
JUDGMENT
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This
case
was heard
on
defendant's
motion
to
set aside
the
foreclosure
judgment
entered
in
this
case
on April 18, 2011. The
court
being fully advised in
the
premises, finds and decides
as
follows:On October 26, 2004, defendant executed and delivered an Adjustable Rate Note
to
IMPAC
FUNDING
CORPORATION DBA
IMPAC
LENDING
GROUP.
The
note
is
secured by a mortgage. Themortgagee is Mortgage Electronic Registration Systems, Inc.
(MERS), as
nominee
of
IMPAC. Copies
of
the
note and mortgage are attached
to
this
order
for
ease
of
reference.Plaintiff sued defendant seeking foreclosure
of
the
mortgage
in
2008 and received
the
foreclosure
judgment
at
issue
on
April 18, 2011.Defendant attacks
the
judgment on
two
fronts, which this
court
finds
to
be interrelated andinterdependent. One basis
for
attack is this court's
subject matter Jurisdiction.
The
court
rejects thisargument
without further
comment.
 
Defendant argues
that
plaintiff did
not
have standing
to
sue when this action was filed.
She
alsoargues
that
plaintiff committed a fraud on this court when
it
alleged
that
plaintiff
and its original lawyer,included in its complaint
thatplaintiff
was
the
owner
and holder
of
the
note
and mortgage by virtue
of
aSSignment. The record supports defendant's arguments.The court finds
that
no assignment
of
the
note
and/or
mortgage
in
favor
of
the
plaintiff hadbeen made prior
to
the
filing
of
the
complaint in this
case.
In fact,
the
first
effort
at
assignment did
not
take place until 2010. Plaintiff attempted
to
cure this pleading discrepancy
in
it
affidavit In support
of
motion
for
summary judgment. To no avail. The affidavit merely highlights
the
complaint's lack
of
candor
on
this point. Furthermore,
the
affiant was
not the
proper witness
to
establish the authenticity
of
plaintiffs
records.Plaintiff argues
that the
note was in its
posseSSion,
i.e.,
it
was
the
holder
of
the
note, by
virtue
of
an
endorsement in blank stamped on
the
back
of
the note. Therefore,
plaintiff
argues
it
is
the
real partyin interest entitled
to
pursue this action. Plaintiff might be correct if,
as
plaintiff
argues, this was a
matter
governed
by
Section 673.1041(1), Florida Statutes. However, 673.1041(1)(c), Florida Statutes,only applies
to
negotiable instruments. This note
in
issue
is
not
a negotiable instrument. The subjectnote contains numerous undertakings
or
instructions
to
do acts in addition
to
the
payment
of
money.For example, the
note
requires the borrower
to
notice
of
prepayment and prohibits prepayment
if
the
borrower
has
not
made all
monthly
payments under
the
note. Likewise,
the
note
refers
to
undertakingsset
forth
in
the
mortgage which are
in
addition
to
the
payment
of
money. Plaintiff likely takes
the
pOSition
that
this mere reference does
not
create undertakings in addition
to
the
payment
of
money.Nonsensel
It
is clear
that
Section 11
of
the
note is intended
for
one purpose, and one purpose only -
to
impress upon the
borrower
that
she is undertaking acts in addition
to
the
payment
of
money.The note
in
this
case
is a non-negotiable instrument.
As
such,
it
must
be
transferred
by
sale
or
assignment,
not
by endorsement in blank. No evidence
of
sale
or
assignment is offered
that
would save

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