IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUTT, IN AND FOR NASSAU COUNTY, FLORIDA CASE NO: 45-2008-CA-000172 ‘TAYLOR, BEAN & WHITAKER MORTGAGE COMPANY, Plaintiff, MEGAN L. WRIGHT, JOSEPH M. WRIGHT, etal. Defendant ‘VERIFIED MOTION TO SET ASIDE DEFAULT, FORECLOSURE FINAL JUDGMENT AND CANCEL SALE DATE ANI TO ED. ‘Comes now, Defendants, Megan L. Wright and Joseph M. Wright (*Defendants," “the Wrights," “Mr. Wright” and “Ms. Wright”), pursuant to Rules 1.190(a) and (e), 1.500(@), 1.540(b)(1) and (3), Fla.R.Civ,P, moves this Court to set aside the default entered herein again Joseph M. Wright, to set aside the foreclosure final judgment entered on August 28, 2008, to ‘cancel the sale date established therein for September 30, 2008 and for leave to file an amended response and states: 1, As is more particularly set forth below there have been several instances of ether ‘mistake, misrepresentation or other misconduet which occurred in this case leading up 16 the entry of the August 28, 2008 final judgment, including but not limited to Plaintiff's failure to file the response submitted by the Wrights; Plaintiff's secking a default against Mr. Wright without notice to him despite receipt ofa response from the Wrights;Plaintf's representation to the Court that a default should be entered ‘against Mr. Wright without notifying the Court that a response ‘was served upon Plaintiff; Plaintiff's secking a forectosure summary judgment without notifying the Court it received a response from the Wrights which raised factual issues not addressed in the form summary judgment motion; Plaintiff's seeking a foreclosure surnmary judgment without proper proof of ‘ownership of the morigage and mortgage note; and Plaintiff's secking a foreclosure summary judgment against property that ‘was not properly security for the mortgage. 2. ‘The Wrights have meritorious defenses and have a basis for questioning this Court's subjest matter jurisdiction as is more particularly described below. Motion to dismiss for tack of subject matter jurisdiction 3. Rule 1.140(8)@2), Fa.R.CiuP. provides tha the defense of ack of jurisdiction of the subject matter may be raised at any time. Maynard v. The Florida Board of Education, 2008 Fla, App. LEXIS 5890; 33 Fla. L. Weekly D 1110 (Fla, 2™ DCA 2008) (Standing may be raised leven after a verdict is entered as long as itis preserved atthe trial cour). ‘The subject mortgage is payable to Taylor, Bean, Whisker and dated January 25, 2006. Plant, Taylor, Bean & Whitaker Mortgage Company (*TBW) aso filed an Assignment of Morigage dated March 24, 2008 executed by Bria Carter-Shaw, Vice President of Mortgage Electronic Registration Systems, Inc. (°MERS") as nominee for Taylor, Bean and ‘Whisker Mortgage Corporation “residing o located at 1595 SpringHill Road, Suite 310, ‘Vienna, Virginia.” Ms Carter-Shaw's signature wes notarized in Marion County, Florida on March 24,2008, MERS has no ofics in Marion County, Florida 5. Purther, the assignment from MERS to TBW was dated subsequent to the filing ofthis lawsuit and does not contain an effective date 6. InFlorida, the prosecution ofa residential mortgage foreclosure action must be by ‘he owner and holder ofthe mortgage and the note Plaintiffs nt entitled to maintain an ation iit doesnot own and hold the note which is purportelly secured by the subject mortgage. Your ‘Constrition Center, Inc. v, Grass, 316 So. 24596 Fl. Ath DCA 1978) Greenwald. Teale D Propetss. Inc. 424 So, 2d 185,187 (Fl, 4th DCA 1983). (However, the Second and Thi District Courts of Appeal have ruled that merely being the holder ofthe note provides standing to seek enforcement ina foreclosure action if the holder is acting for the real party in interest.) ‘Mortgage Electronic Registration Systems, ne. v. Revoredo, 955 So. 2d 33 (Fl. 3d DCA 2007); Mortgage Electronic Registration Systems, In, v.Azize, 2007 Fla. App. LEXIS 2418 (Fla. 2d DCA Case no. 2005-4544, opinion filed, February 21, 2007, 7. Rule 1.210(a) ofthe Florida Rules of Civil Procedure provides, in pertinent par Every action may be prosecuted in the name ofthe real party in interest, but a personal representative, administrator, guardian, ‘trustee of an express trust, a party with whom or in whose name « contract has been made for the benefit of another, ora party expressly authorized by statute may sue in that person’s own ‘name without joining the party for whose benefit the action is brought Standing requires thatthe party prosecuting the action havea sufficient stake in ‘he outcome and thatthe party bringing the claim be recognized in the law as being real party in interest entitled to bring the claim. This entitlement to prosecute a claim in Florida courts rests «exclusively in those persons granted by substantive law the power to enforce the claim. Kumar ‘Corp. v Nopal Lines, Ltd eal, 462 So, 241178, (Fla, 3d DCA198S), A plant's lack of ‘standing atthe commencement of a case isa fault that cannot be cured by gaining standing afterthe case has been filed. Progressive Express ns. Co. v. McGrath Community Chiropracti, 913 So, 24 1281, 1285 (Fla. 2d DCA 2005). See als, Maxmard, supra. 9. Parties may rely on the "relation back” rule when asserting standing. rogressve supra, When applying the "relation back" rule the party who didnot have standing a the time the action was fled may emend thir statement of claim to show that they acquire standing hat "elated back to the original statement of claim.” I. at 1285-1286; Fla. .CIvP. 1.190(0). However this rule does nt allow a party to establish the right to maintain an action retroctvely by acquiring standing after the fact. Progressive, 913 So. 2¢ at 1285; Lixingston, 774 So. 2 71631717, Ifthe party was without standing when the suit was fled then anew lawsuit must be fied. Progressive, 913 So, 2d at 1285 (iting Jeff Ray Corp. v Jacobson, 566 So. 24 885, 886 (ia. Ah DCA 1990) (Finding that “the assignee ofa morgage could not maintain the mortgage foreclosure action because the assignment was dated four months after the action was filed, ifthe Dlaitiff wished to proceed on the assignment, it must flea new complaint.” 10, Asaresult although TBW claims to be the owner ofthe mortgage note and ‘mortgage, the asignment which isthe basis fortis ownership claim has no “effective” date and the “vice-president” signing the assignment for MERS was located in diferent part ofthe country than MERS., Lastly the assignment has no effective date and was not signed until ater the fling ofthe subject foreclosure, Plaintf Failed o File Wright's Answer withthe Court 11. Plaintiff filed this ese on or about March 18, 2008. The Wrights were served on or about March 24, 2008. On or about April 8, 2008, Ms, Wright served an answer upon counsel for Plaintiff. According to the return receipt the answer was received by Plaintiff on April 11,2008. In ther response, the Wrights raised issues relating to TBW's switching them ffom a fixed Fate mortgage into an adjustable rate mortgage with unfavorable terms at closing when it was too lato refuse o sign and TBW's failure fo properly respond tothe Wrights when they attempted to offer money to reinstate the loan and a general plan to cure any and all delinquencies, 12, Plant, TBW received this answer and didnot filet withthe Court. Instead, PlintfP's counsel requested end obtained a defelt against Defendant, Mr. Wright without providing he with notice ofits intention to seek a default, Plaintiff then scheduled and attended 2 hearing on a motion for summary judgment without presenting the Wright's answer to the Court, and without acknowledging the factual issues raised in ther answer. The summary judgment as improper because of the factual issues raise in the Wrights response which was nat provided tothe Court. See Delandrov ss Mor Ic, 614 So, 2d 184, 186 (Fla. 3 DCA 1996) (summary judgment set aside when borrower's pro se answer raised tender defense and illegal late charges rendering lender's conclusory motion for summary judgment Which failed to address the borrower's defense insufficient show there were no disputed issues cof material fact with respect tothe defenses put forward by the borrower). See Campbell. ‘Sand, 404 So, 2d 402, 403 (Fl. Sth DCA 1981) (not necessary for borrower to file an affidavit in opposition o motion for summary judgment. Factual Issues Raised by Wright’ Answer 13, One ofthe factual issues raised bythe Wrights in their answer was TBW's failure to comply withthe federal regulations requiring it to provide pre-foreclosure loss ‘mitigation o loss avoidance options tothe Wight as required by federal regulations and their subject FHA mortgage,