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Amended Complaint Equus Partnership

Amended Complaint Equus Partnership

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Published by luke17
This is the latest version of an action to quiet title
This is the latest version of an action to quiet title

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Published by: luke17 on Jan 23, 2012
Copyright:Attribution Non-commercial

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10/11/2014

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IN THE CIRCUIT COURT FOR PALM BEACH COUNTY, FLORIDACIVIL DIVISIONCASE NO: 502011CA015458XXXXMB
 EQUUS PARTNERS,Plaintiff,-v-MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and COUNTRYWIDEBANK, FSB now known as BANK OF AMERICA NATIONAL ASSOCIATION (“BOA”), etal.,Defendants.
FIRST AMENDED COMPLAINT
Plaintiff EQUUS PARTNERS files its First Amended Complaint against the defendantsMORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“Defendant MERS”) andBANK OF AMERICA NATIONAL ASSOCIATION (“Defendant BOA”) and alleges:1.This is an action seeking a declaratory judgment and quiet title to real propertylocated in in Palm Beach County, Florida.2.This Court has jurisdiction pursuant to F.S. §65.011 and §86.011.3.The Plaintiff is a subsequent purchaser for a valuable consideration of real property located in Palm Beach County, Florida with the following legal description:
LOT 94,OF EQUUS AGR-PUD PHASE TWO, ACCORDING TO THE PLAT THEREOF, ASRECORDED IN PLAT BOOK 102, PAGE 157, OF THE PUBLIC RECORDS OF PALMBEACH COUNTY, FLORIDA.
 
4.The Defendant MERS is a Delaware corporation with its principal place of  business in Virginia.5.The Defendant BOA is a National Association with its principal place of businessin North Carolina. The Defendant BOA is purposefully concealing the owner of the economicinterest in the real property and has identified itself as the is the “servicing agent” of the real party in interest.6.On or around May 25, 2007 Cheryl Charles-Duval issued a Note payable toCountrywide Bank, FSB as Lender and granted a Mortgage securing payment of the Note infavor of the Defendant MERS.7.MERS is identified as a “nominee” on the mortgage instrument and is alsoidentified as the “mortgagee” for the Lender on the same mortgage instrument. The fact thatMERS cannot be both “nominee” and “mortgagee” with respect to the same right is axiomatic.
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8.Upon information and belief, the Note and Mortgage were assigned therebyextinguishing the rights of Countrywide Bank, FSB to the payments thereunder.9.No assignment was recorded in the official records of Palm Beach County,Florida and the mortgage instrument recorded in the name of the Defendant MERS as nomineedoes not provide adequate notice of the existence of a lien.10.On September 1, 2011 the Plaintiff’s General Partner remitted a written requestfor an estoppel letter to the Defendant MERS and to Countrywide Bank, FSB. The writtenrequest also demanded a date, time and location wherein the original note could be inspected and photocopied. The request was ignored.11.On October 3, 2011 the Plaintiff recorded a Warranty Deed in Book 24775 atPage 0431 of the Official Records of Palm Beach County, Florida and on October 17, 2011 the
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See
RESTATEMENT (THIRD) OF AGENCY §§1.01 - .02 (2006).
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Plaintiff recorded a Notice of Lis Pendens in Book 24799 at Page 1162 of the Official Records of Palm Beach County, Florida.12.In Florida, the failure to record an assignment of mortgage, as with failure torecord a deed or mortgage, renders them invalid as against subsequent purchasers or mortgageesfor value and without notice.
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 13.Florida Statutes §695.01 (1) provides that no conveyance, transfer, or mortgage of real property, or 
of any interest therein
, shall be good and effectual in law or equity againstcreditors or subsequent purchasers for a valuable consideration and without notice, unless same be recorded according to law (2011).
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14.Florida Statutes §701.02 (1) provides that an assignment of mortgage upon real property or of any interest therein, is not good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless same is recordedaccording to law (2011).
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COUNT IDECLARATORY JUDGMENT (F.S. § 48.23 (2011))
15.The Plaintiff repeats and re-alleges the allegations contained in paragraphs 1through 14.16.This is an action for declaratory judgment and supplemental relief.17.Florida Statues §48.23(1)(d) provides that the recording of a lis pendensconstitutes a bar to the enforcement against the property described in the notice of all interestsand liens unrecorded at the time of recording of the notice unless the holder of any such
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See
Manufacturers’ Trust Co. v. People’s Holding Co., 110 Fla. 451 (1933).
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See
McCahill v. Travis Co.
 
, 45 So.2d 191 (Fla. 1950).
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This section also applies to assignments of mortgages resulting from transfers of all or any part of the debt, note or notessecured by mortgage. F.S. 701.02(2) (2011).
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