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Fastiggi_Motion for Sanctions_Compel Further Response

Fastiggi_Motion for Sanctions_Compel Further Response

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Published by: StopGovt Waste on Apr 24, 2012
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08/05/2013

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IN THE CIRCUIT COURT OF THE 18
TH
JUDICIAL CIRCUITOF FLORIDA, IN AND FOR BREVARD COUNTY
Deutsche Bank National Trust Company asCase #2008-CA-052491Trustee for Morgan Stanley ABS Capital IInc., MSAC 2007-NC4,Division #: OPlaintiff,vs.John J. Fastiggi and Kristy K. Fastiggi, His Wife;State of Florida Department of Revenue; UnbeknownstParties in Possession #2; If living, and all UnknownParties claiming by, through, under and against theabove named Defendant(s) who are not known to bedead or alive, whether said Unknown Parties may claiman interest as Spouse, Heirs, Devisees, Grantees, or Other Claimants,Defendant(s). _____________________________________________/
DEFENDANT JOHN FASTIGGI'S AND KRISTY FASTIGGI'SJOINT REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS FOR DISCOVERYVIOLATIONS, OR IN THE ALTERNATIVE TO COMPEL FURTHER RESPONSES TOINTERROGATORIES
Defendant John Fastiggi's interrogatories are virtually identical to Defendant Kristy Fastiggi'sinterrogatories. They differ in one manner - John Fastiggi's interrogatories seek information regardingthe “Note” whereas Kristy Fastiggi's interrogatories seek information regarding the mortgage document.Because they are similar, this joint reply brief is appropriate so as not to duplicate papers unnecessarily.Counsel for the Fastiggi defendants had a short telephone conversation with Plaintiff's counselwho contended that Plaintiff “has the note” so they don't need to provide the requested information.Defendant's reply to the substance of the statement Plaintiff's counsel made to Defendant's counsel
Defendants Reply Brief in Support of Motion for Sanctions or in the alternativeto Compel Further Response to Defendants First Set of Interrogatories
 
about Plaintiff having the note.The interrogatories in dispute have narrowed since the filing of the Motion for Sanctions. Thedispute now focuses on four different types of interrogatories:I.4, 5, 6, 7, 8, 9, 10, 11, 12 and 13.These relate to UCC issues in F.S. 673, et. seq.II.14, 15 and 20.These relate to the payments made on the note relevant under F.S. 673.3021(5)III.17.This relates to indemnification on the lost note count.IV.18 and 19.These relate to federally required pre-foreclosure default procedures.The first and second types of interrogatories relate directly to the statement made by thePlaintiff's counsel about the note. The Plaintiff's 60 page “Response to Defendants John Fastiggi andKristy Fastiggi's First Request for Production of Documents to Lassalle Bank National Association”(Hereafter, “Response”) was filed on January 28, 2010 and is document number 54 in the docket. As tothe specific discovery issues, this document is important to the determination of these first two types of discovery issues.On page 12 of Plaintiff's Response is the first page of the mortgage document. At the very topof this document it purports to carry the Clerk of Courts recording stamp which identifies that it wasrecorded on 5/3/07 in Book 5775 at page 1445. The remaining relevant documents in the Plaintiff'sResponse also carry a Clerk of Court recording stamp as follows:A.
NOTE
1.Page 35 – 39 of Plaintiff's Response.2.Book 6015, pages 1048 – 1052.3.Executed 7/18/06.4.Payable to Lender. Lender is Old Merchants Mortgage, Inc., DBA OMMB, A NewYork Corporation. (p. 1 of note)5.Not indorsed by Lender.B.
ALLONGE
 
1.Page 41 of Plaintiff's Response.2.Book 6015, page 1054.3.Executed 7/18/06 – same date as note executed by borrowers.4.Executed by Lender.5.Payable to
 New Century Mortgage Corporation
.C.
ASSIGNMENT OF NOTE
1.Page 42 of Plaintiff's Response.2.Book 6015, page 1055.6.Executed – UNKNOWN - UNDATED.7.Executed by Lender.8.Blank indorsement.D.
ASSIGNMENT OF MORTGAGE
1.Page 44 of Plaintiff's Response.2.Book 6026, page 2085.3.Executed 9/10/09 – after filing of Complaint in this case.4.Executed by Saxon Mortgage Services, Inc, as the attorney in fact for New CenturyMortgage Corporation.5.Transferee – Plaintiff.E.
ASSIGNMENT OF MORTGAGE
1.Page 46 of Plaintiff's Response.2.Book 6044, page 534.3.Executed 7/24/06.4.Executed by Lender.5.Transferee New Century Mortgage Corporation. Notable points regarding the Note, the Allonge and the Assignment of Note:1.The Note is payable to the specifically identified person - Old Merchants Mortgage, Inc.,DBA OMMB, A New York Corporation, and it is not indorsed.2.The Allonge was executed the same date as the Note and falls number 2 in line behindthe Note in Plaintiff's Response.3.The Allonge makes the Note payable to the specifically identified person -
 NewCentury Mortgage Corporation.
4.There are no documents (allonge, indorsement on the note or assignment of the Note)executed by
 New Century Mortgage Corporation
that make the Note payable toanother person.5.The Assignment of Note falls number 3 in line behind the Note and the Allonge in

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