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Argue Florida Assignment Fraud to Judges 1

Argue Florida Assignment Fraud to Judges 1

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04/01/2013

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How To Argue Florida Assignments ToJudges
In accordance with the Disclaimer posted on this site, nothing here shall beconstrued as legal advice. The information below is strickly commentary designed tohelp attorneys enhance there presentation skills in the performance of their jobs.The hiring of an attorney is very important. If you are in need of legal assistance,consult a licensed attorney for legal advice.
The Assignment Not Attached To The Complaint & IsDated After The Complaint Was Filed
It is important to note here that judges like rulings from the appellate division thatcover their circuit or other opinions from WITHIN their circuit (colleagues). Findthose cases first and if you can’t and have to use other Florida cases, show the judgeWHY they should rule the same. Remember you have 5 minutes to bring it home.I’m going to use Deutsche Bank National Trust Company as Trustee for FFMLT2006-3 as the Plaintiff and Marshall C. Watson as their counsel for this example.
Judge: We’re here on Defense Counsel’s Motion to Dismiss. Counsel please proceed.Defense Counsel: Good morning Your Honor. This Motion is based on 3 points thatwarrant dismissal of this action (we will only focus on one – Standing)1) Plaintiff lacks standing to bring this foreclosure action against my client(FACT/OPINION). The allegations in the complaint allege Plaintiff is the OWNER andHOLD of the NOTE that they seem to have apparently LOST (FACT) but have failed toidentify, WHEN they became the OWNER and HOLDER of the Note (FACT) and HOWthey became the OWNER and HOLDER of the Note (FACT), or the approximate dateWHEN they allegedly lost the NOTE (FACT) and explaining HOW they allegedly lost it(FACT). They have attached a copy of a print out from court records AND NOT THEIR CLIENTS FILES of the Mortgage (FACT) which indicates First Franklin as theORIGINAL Lender (FACT) and does not mention Plaintiff Deutsche Bank anywhere onTHAT document (FACT). No NOTE or a CERTIFIED COPY of such nor has aLAWFUL and EQUITABLE ASSIGNMENT been ATTACHED to the Complaint(FACT) in support of their allegation that they are the OWNER and HOLDER of the NOTE (FACT).
STOP RIGHT HERE (EDITORS NOTE): First always state facts and not opinions.If you have to state an opinion it better be extremely persuasive and you need tohave sufficient evidence to back it up. Second, if there was a Notice of Filing afterthe complaint was filed and you filed your Motion to Dismiss of the Assignment youwant to say:
In an attempt to cloud the court’s judgment (OPINION), PLAINTIFFS COUNSEL hasmagically caused an Assignment to appear (FACT) which according to the date wasCLEARLY drafted, executed and filed AFTER the filing of this action (FACT) wherenumerous case-law opinions throughout Florida PROHIBIT such Assignment filingswarranting dismissal (FACT)!
 
STOP RIGHT HERE (EDITORS NOTE): You don’t want to come off ascondescending here. Your want to come off as confident to your position and a littlefantastical about Opposing Counsel’s Actions (Not PLAINTIFF) in filing theAffidavit this way. You have to end your speaking presentation here because youdon’t ever want the judge to cut you off to allow opposing counsel to speak but youwant your last words to the judge the prompt the question…what case law andopinions do you have to support your position?
Judge: Plaintiffs Counsel what do you have to say?Plaintiff’s Counsel: Your Honor, our Complaint clearly states a cause of action(OPINION). Plaintiff is in possession of the original Promissory Note and we are prepared to drop the Re-establishment Count Your Honor. Since we have possession of the Original Note, the Court should find that an equitable assignment occurred prior tothe actual dated assignment and the date of the assignment is irrelevant (OPINION). Weonly need to have possession to be the holder in due course judge which allows us to bring this action. I have numerous case-law to support our position.Judge: Such as?Plaintiffs Counsel: Well Your Honor,
WM Specialty Mortgage, LLC v. Salomon,
874So.2d 680 (Fla. 4th DCA 2004) and
 Johns v. Gillian,
184 So. 140 (Fla. 1938) clearly statethat because Plaintiff had possession of the original Promissory Note the Court shouldfind that an equitable assignment of the mortgage occurred prior to the actual datedassignment and the date of the assignment should be deemed irrelevant.Judge: I see…Defense Counsel?Defense Counsel: Your Honor, Counsel’s argument is misplaced (FACT/OPINION).
WM Specialty Mortgage
requires that, whatever the form of the assignment, there MUST first be an “unconditional” transfer of interest BEFORE the assignee may maintain aforeclosure (FACT). Unlike the matter presently before the Court, in
WM 
 
SpecialtyMortgage
the Plaintiff alleged facts of a physical transfer of the mortgage to the assignee prior to the Plaintiff filing suit (FACT). The allegation of physical delivery SUPPORTEDan equitable assignment (FACT) and based on THAT fact the Court in
WM SpecialtyMortgage
overlooked the late executed assignment and allowed the foreclosure tocontinue (FACT). In the matter before this Court, the Plaintiff made no allegation INTHE Complaint of physical delivery (FACT) within the holding of 
WM SpecialtyMortgage
and the allegations in the Complaint do not rise to the standard of showing an“unconditional” transfer of the assignors rights to Plaintiff (FACT) nor has Plaintiff alleged in the Complaint it is the HOLDER IN DUE COURSE which counsel is alleginghere.Your Honor, before Plaintiff’s Counsel responds, I’d like the court to note thatPRESENTING Affidavits that are dated AFTER the a Complaint is filed and theforeclosure has been initiated in the manner done so EXACTLY as seen here(FACT/OPINION), is a pattern and practice amongst the law firms Marshal C. Watson,Florida Default Law Group, Law Offices of David J. Stern and Shapiro & Fishman(FACT) who represent over 90% of foreclosures in the State of Florida (FACT). In factthe argument I’ve just expressed to the court comes straight from Judge AnthonyRondolino of the 6th Judicial Circuit in and for Pinellas County BANK OF AMERICAvs. COLLEEN M. MCKENNA Case No. 09-4179-CI-13 (FACT) which Marshall C.Watson was counsel of record for, where His Honor granted Defendant’s Motion to
 
Dismiss against Marshall C. Watson for the very same reason (hand a copy of 
16 Fla. L.Weekly Supp. 833c
to Judge) (FACT). At a glance I have over ten (10) cases where thistactic has been used and the case was dismissed as a result (FACT) (hand Judge the caseswith the points highlighted). Those cases are BRANCH BANKING AND TRUSTCOMPANY vs. REGINALD JENKINS,
16 Fla. L. Weekly Supp. 642a,
CHASE HOMEFINANCE, LLC v. JANET DOBSON,
16 Fla. L. Weekly Supp. 428a,
CITIMORTGAGE, INC. vs. MICHAEL EASOM,
17 Fla. L. Weekly Supp. 100b,
CREDIT BASED ASSET SERVICING AND SECURITIZATION, LLC v. TAMMY D.HARDY,
16 Fla. L. Weekly Supp. 1147a,
SUNTRUST MORTGAGE, INC. vs. ELENAV. FULLERTON,
16 Fla. L. Weekly Supp. 1146b,
THE BANK OF NEW YORK MELLON v. MARY L. BARNICH,
17 Fla. L. Weekly Supp. 100a,
U.S. BANK  NATIONAL ASSOCIATION v. BRENDA C. ROSE,
16 Fla. L. Weekly Supp. 1044a,
US BANK N.A. v. JESUS TACORONTE,
17 Fla. L. Weekly Supp. 17a
andWACHOVIA BANK NATIONAL ASSOCIATION vs. JUANITA NORTON,
16 Fla. L.Weekly Supp. 1043a.
All of these cases support that where an Assignment is filed AFTER the Complaint isfiled and the Complaint fails to allege and/or Plaintiff fails to submit other documentaryevidence showing conclusively an EQUITABLE TRANSFER of the Note (FACT),Plaintiff lacks standing to bring a foreclosure action and the case should be dismissed(FACT). I would ask the court at this time based on the OVERWHELMING support Ihave provided to dismiss this case.
STOP RIGHT HERE (EDITORS NOTE): I cannot tell you what the judge willdecide or what Opposing Counsel will say after this point…you be the judge. What Iwill say is that Judges want to hear the FACTS. You have presented the FACTS verywell here. The key to success in this example is your flow of words in a strong andconfident manner without studder, interruption or indecisive pause.
Another very important point and cross argument I want to point out is the Assignment is99% of the time from MERS to the Plaintiff. There are two (2) important positions to takeon this.(1) While the Mortgage may name MERS as the Nominee for Lender, it does so only inthe Mortgage and the Mortgage interest only. MERS is not mentioned ANYWHERE onthe Note hence it can not assign an interest greater than that which it is entitled to. TheMERS assignment (outside of the number of fraudulent issues that may exist on the faceof it) will casually state in the language that it is transferring ALL beneficial interest inthe Mortgage AND Note. Be sure to bring to the court’s attention that MERS name is notmentioned anywhere on the NOTE as the Lenders Nominee and Plaintiff has NOT provided evidence to support MERS ability to transfer the beneficial interest of the Note.(2) In instances where the Plaintiff is Trustee for a securitized pool of loans, find thePooling & Servicing Agreement athttp://www.secinfo.com/. Show the court that it would be impossible for MERS to transfer interest to Deutsche when it is clear from the casecaption that this loan is part of a pool of loans (FYI – just because they allege your loan is part of a pool does not mean it is but for argument sake use this allegation against them).The Pooling and Servicing Agreement will show who the Depositor is, Servicer, Master Servicer and Deutsche as Trustee. This document is evidence that a) the loan transferredfrom the original lender to at the very least, the Depositor (where is the evidence of thistransfer?), and from the Depositor to the parties in the pool (where is the evidence of this

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