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Fraud on the Court - Emergency Motion to Vacate Judgment

Fraud on the Court - Emergency Motion to Vacate Judgment

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Published by winstons2311
Emergency Motion to Vacate Judgment , cancel Sale and request evidential hearing
Emergency Motion to Vacate Judgment , cancel Sale and request evidential hearing

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Published by: winstons2311 on Oct 29, 2010
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03/16/2013

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IN THE CIRCUIT COURT OF THE 15
TH
JUDICIAL CIRCUITOF FLORIDA, IN AND FOR PALM BEACH COUNTYU. S. BANK NATIONAL ASSOCIATION,AS TRUSTEE, ON BEHALF OF THEHOLDERS O THE HOME EQUITY ASSETTRUST 2006-7 CERTIFICATES, SERIES2006-7,Plaintiff,Case #:DIVISION: AWVS,Defendants.------------------------------------------------------/
EMERGENCY MOTION TO VACATE FINALJUDGMENT TO VACATE SALE AND REQUEST AN EVIDENTIARY HEARINGBASED UPON FRAUD ON THE COURT
Comes now, the Defendant,YYYY , and pursuant
to
Florida Rules of Civil Procedure 1.1OO (b),1.140(b) (1) (6) and (h) (2) and 1.210(a) and 1.540(b)Requests this Court to cancel the sale, Vacate the Final Judgment and Request an EvidentiaryHearing Based upon Fraud on the Court and as grounds therefore states:The Plaintiff, U. S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THEHOLDERS OF THE HOME EQUITY ASSET TRUST 2006-7 CERTIFICATES, SERIES2006-7,Hereinafter U.S. BANK.
y
Filed their complaint without proper standing to do so, and made materialmisrepresentations in their pleadings.
y
Plaintiff ³NEVER´ recorded any assigment as evidence that they are in fact the ownersand holder of the alleged ³Note´ ³Mortgage´. EXHIBIT ³A´.
y
The assigment presented by plaintiff is bogus, fraudulent, due to the fact that
MERS donot have authorization whatsoever as to assign anything they are only theprocessors.
y
As the court could see the unrecorded assigment presented by plaintiff and their attorneysin the instruction part says ³actual Words´When Recorded Return To:BILL KOCK SELECT PORTFOLIO SERVICING, INC3815 SW TEMPLE
 
 
SALT LAKE, UT 84115
 I would like to address the court to please place extra attention to who was the alleged authorized representant from MERS.
y
O
n September 25, 2009, R.K. Arnold, the President and CE 
O
of MERSC 
O
 RP, Inc. ² the parent corporation of Mortgage Electronic Registration Systems, Inc. was deposed in Alabama. Arnold is also an
O
 fficer of MERS.
 Arnold admitted MERS does not have abeneficial interest in any mortgage; does not loan money; does not suffer a default if monies are not paid; etc. etc. On November 11, 2009, William C. Hultman was deposed in Alabama and made the same admissions. And, of course, the internal agreement used by MERS expressly disavows any beneficial interest.
  LANDMARK NATI 
O
 NAL BANK v. B
OY 
 D A. KESLER
CALIFORNIA BANKRUPTCY COURT HOLDS THAT MERS CANNOT TRANSFER NOTEFOR WANT OF OWNERSHIP; CITES BOYKO, LANDMARK (KANSAS), LAMY, ANDVARGAS CASES JULY 9, 2010
y
The United States Bankruptcy Court for the Eastern District of California has issued aruling dated May 20, 2010 in the matter of In Re: Walker,
Case No. 10-21656-E-11
 which found that MERS could not, as a matter of law, have transferred the note toCitibank from the original lender, Bayrock Mortgage Corp.
The Court¶s opinion isheadlined stating that MERS and Citibank are not the real parties in interest.
 
y
 
The court found that MERS acted ³only as a nominee´ for Bayrock under the Deed of Trust and there was no evidence that the note was transferred. The opinion also providesthat ³several courts have acknowledged that MERS is not the owner of the underlyingnote and therefore could not transfer the note, the beneficial interest in the deed of trust,or foreclose on the property secured by the deed´, citing the well-known cases of In ReVargas (California Bankruptcy Court), Landmark v. Kesler (Kansas decision as to lack of authority of MERS), LaSalle Bank v. Lamy (New York), and In Re Foreclosure Cases(the ³Boyko´ decision from Ohio Federal Court).
y
U.S. BANK¶S lack of ownership of the Original Unalter ³Note´ and ³Mortgage´, in thiscase go to the heart of its claim
of standing
, premates the entire proceeding andsubverts the integrity of the action.
 Metropolitan dade county v. Martinsen, 736 so. 794(Fla. 3
rd 
DCA 1999.
 
y
U.S. BANK¶S failed to provide any documentation whatsoever that they are in fact thereal party in interest in this Case.
y
Standing requires that the party prosecuting the action have a sufficient stake in theoutcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. This entitlement to prosecute a claim inFlorida courts rests exclusively in those persons granted by substantive law, the power toenforce the claim.
 Kumar Corp.
v.
 Nopal Lines, Ltd, et al.
462 So. 2d 1178, (Fla. 3d DCA1985).Rule 1.2l0(a) of the Florida Rules of Civil Procedure provides, in pertinent part:
 
 
y
Every action may be prosecuted in the name of the real party in interest, but a personalrepresentative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expresslyauthorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought... The Plaintiff, U.S. BANK¶S , meets none of thesestanding and pleading criteria.
y
"The determination of standing to sue concerns a court's exercise of jurisdiction to hear and decide the cause pled by a particular party."
 Rogers
&
 
 Ford Canst. Corp.
v.
Carlandia Corp.
626 SO.2d 1350,1352 (F1a.1993).
y
The integrity of the civil litigation process depends on the truthful disclosure of facts.
 Metropolitan Dade County v. Martinson,
736 So.2d 794 (Fla. 3rd DCA
1999), Andrewsv. Palmas De Majorca Condo,
898 SO.2d 1066 (Fla. 5th DCA 2005).
y
Florida Rule 1540(b) also gives relief from judgment, decrees or orders if there is merit tothe case, which there is in this case. In paragraph (b) on motion and upon such terms thatare just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons:
1.
Mistake, inadvertence, surprise, or excusable neglect;
11
. Newly discovered evidence which by due diligence could not have been discovered in time tomove for a new trial or rehearing; and
111
. Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
y
The rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decreefor fraud upon the court. From the plaintiff s own pleading, it is easy to see where therehave been both fraud and misrepresentation in this case.
W
HEREFORE, the defendant, YYYY
Moves this court to
DISSOLVE LIS PENDENS,TO CANCEL SALE, DISMISS CASE, DISMISS
 
COMPLAINT
with prejudice.
 
BY: _________________________ Defendant.
NOTARY
On the _____ day of __________________, 2010 before me, ________________________, personally appeared _________________________________ who proved to me on the basis of satisfactory evidence to be the person whose name is above and acknowledge to me that she is the person that executed this instrument. I certify under PENALTY OF PERJURY under the laws of the State of FLORIDA that the foregoing paragraph is true and correct.

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