1IN THE CIRCUIT COURT OF THE15
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JUDICIAL CIRCUIT IN AND FORPALM BEACH COUNTY, FLORIDACASE NO. 50 2008 CA 022258 XXXMBDIVISION AWDEUTSCHE BANK NATIONAL TRUSTCOMPANY, AS TRUSTEE FOR THECERTIFICATE HOLDERS OFSOUNDVIEW HOME LOAN TRUST2006-OPT2, ASSET-BACKEDCERTIFICATES, SERIES 2006-OPT2,Plaintiff,vs.LYNN E. SZYMONIAK, et al.,Defendants.____________________________________/
DEFENDANT SZYMONIAK’SOBJECTION TO CONTINUED USE OF ORIGINALCOURT DOCUMENTS BY PLAINTIFF
COMES NOW, Defendant Lynn E. Szymoniak, by and through undersigned counsel, andobjects to the Court allowing the law firm Akerman Senterfitt and the Plaintiff to continue tomaintain the Clerk’s original file documents. Further, Defendant requests that the Court instructthe Akerman Senterfitt firm to return the documents to the Clerk immediately. In support thereof the Defendant Lynn E. Szymoniak would show as follows:1. This is an action to foreclose a mortgage on a property owned by the DefendantLynn E. Szymoniak in Palm Beach Gardens, Florida.2. The original complaint in this action was filed without the note attached to thecomplaint. The original complaint included a “lost note” count in which it was alleged that “4.
2The original promissory note was lost or destroyed subsequent to Plaintiff’s acquisition thereof,the exact time and manner of said loss or destruction being unknown to Plaintiff.
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”3. On or about, December 23, 2009, the Plaintiff caused to be filed a documententitled “Notice of Filing” to which was ostensibly attached a “ORIGINAL NOTE, ORIGINALMORTGAGE, ACCELERATION LETTER, PAYMENT HISTORY and a copy of recordedASSIGNMENT OF MORTGAGE.”4. The undersigned went to view the official file in the Clerk’s office on February 8,2011 to look at the original documents contained in Plaintiff’s Notice of Filing. Of concern tothe undersigned, inter alia, was the condition of the original documents which were in the filing,whether these documents were originals, and whether the allonge was attached to the Note. SeeExhibit A, Pictures of Note, Mortgage and Allonge as they appeared in Clerk’s file.5. The allonge in blank must be permanently attached to the note in order for it to beeffective. F.E.
Booker v. Sarasota, Inc.
, 707 So.2d 886, 887 (Fla. 1
st
DCA 1998)6. The current law firm for Plaintiff, Akerman Senterfit, filed its first Motion forTemporary Release of Original Note, Allonge to Note and Mortgage on or about April 1, 2011.7. When the hearing was originally held on the Akerman Senterfit Motion, the firmwas represented by Nathaniel D. Callahan. In a conference immediately prior to the hearing onthe Motion, the undersigned explained the Defendant’s objection to the granting of the Motion asmaking sure that the order of the documents was not disturbed and that the documents not bemanipulated, destroyed or damaged, as Defendant raised the issue that the Allonge was notpermanently attached to the Note. The condition of the Note and the fact that it was not attachedto the Allonge was important to the Defendant.
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This allegation is absolutely the opposite of the assertion by Plaintiff’s attorneys Akerman Senterfit in their SecondAmended Complaint that the Note was always in the Plaintiff’s possession and was never lost.
38. This Court originally granted the Motion for Temporary Release of Original Note,Allonge to Note and Mortgage on April 5, 2011 and ordered “The Clerk of Court is directed toBate stamp number on consecutively the documents as filed and then release the original noteand mortgage filed December 28, 2009 [sic], to Akerman Senterfitt as counsel for DeutscheBank..” See Exhibit B.9. At some unknown time the documents were returned to the Clerk by the firm.10. During the undersigned’s inspection of the official Clerk’s file on February 8,2011, the undersigned took note of the sequencing of the documents in the file and the conditionof the documents in the file.11. The undersigned observed that the Note was immediately in front of the Mortgagein the official Clerk’s file. The Allonge was not adjacent to the Note and was not immediatelybefore or after the Note in the official Clerk’s file. The Note was separated from the Allonge bymany pages.12. The undersigned also observed that the Allonge was free of any holes in the upperleft corner which would indicate that the allonge had never been stapled as a means topermanently attach the Allonge to the Note. Photographs of copies of the Note, Mortgage andAllonge as it was placed in the official Clerk’s file records are attached as Exhibit A.13. Subsequently the Akerman Senterfitt firm sought again to remove the documentsfor use at the Lynn E. Szymoniak deposition, which was scheduled initially for January 31, 2012,and which was cancelled by Plaintiff on the day of that deposition, and then reset for March 9,2012. The Court granted the subsequent request to remove the original documents and in itsorder ruled “The Clerk shall substitute certified copies for the originals removed. The certifiedcopies shall be returned to the Plaintiff’s counsel upon return of the originals to the court file.”
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Szymoniak Objection to Continued Use of Original Clerk Documents 3.27.12
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