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FARGO BANK, N.A. AS TRUSTEE FOR OPTIONS ONE MORTGAGE LOAN TRUST 2007-CP1, ASSET-BACKED CERTIFICATES, SERIES 2007-CP1, Plaintiff, CASE NO.: 08-xxxx vs. DIVISION: xxxxx, ET. AL., Defendant(s) ___________________________
DEFENDANTS(S) MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT
COMES NOW Defendant(s), xxxxxx, (“Defendant”), by and through the undersigned counsel, and hereby files this Memorandum of Law in Opposition to the Amended Motion for Summary Judgment filed by Plaintiff, WELLS FARGO BANK, N.A. AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2007-CP1, ASSET-BACKED CERTIFICATES, SERIES 2007CP1 (”Plaintiff”), and states as follows: seq level0 \h \r0 seq level1 \h \r0 seq level2 \h \r0 seq level3 \h \r0 seq level4 \h \r0 seq level5 \h \r0 seq level6 \h \r0 seq level7 \h \r0 1. Plaintiff filed its Complaint to Foreclose a Mortgage on real property located in Hillsborough County, Florida, the legal description of which is set forth in the Complaint and incorporated herein by reference. 2. Copies of the underlying Note and Mortgage sued upon were attached to Plaintiff’s Complaints as exhibits and are incorporated herein by reference. The originals were filed with the Court on or about September 15th, 2008 and are incorporated herein by reference1. Defendant further states that said note and mortgage attached to Plaintiff’s Complaint was modified by written agreement dated February 19, 2008 between Option One Mortgage Corporation, a California corporation and Defendant, but said modification is not attached to Plaintiff’s Complaint but its consideration is necessary to the outcome of this cause. A copy of said written modification was produced by Plaintiff on March 19, 2009 in response to Defendant’s Qualified Written Request Pursuant To Section 6 The Real Estate Settlement Procedures Act (RESPA), and is attached hereto and incorporated herein by reference as Exhibit “A” (the “Loan Modification”). 3. 4. The Plaintiff in the instant action is allegedly OPTION ONE MORTGAGE LOAN The Plaintiff names its trustee as WELLS FARGO BANK, N.A., so assumingly, TRUST 2007-CP1, ASSET-BACKED CERTIFICATES, SERIES 2007-CP1.
1 Note that the Note attached to the Complaint was not the same Note filed by Plaintiff as the original. This 9/15/08 filing now contained an undated ‘allonge.’
Plaintiff is an express and identifiable trust or some other type of unincorporated organization. 5. However, OPTION ONE MORTGAGE LOAN TRUST 2007-CP1, ASSET-BACKED CERTIFICATES, SERIES 2007-CP1 is not registered pursuant to Florida Statutes, Title XXXVI, Business Organizations Act, §606-62; Title XXXVIII, Banks and Banking Act §655-667; or Florida Statutes, §494 or 516. Furthermore, Plaintiff OPTION ONE MORTGAGE LOAN TRUST 2007-CP1, ASSET-BACKED CERTIFICATES, SERIES 2007-CP1 is not registered as any type of Florida or national banking institution. 6. It is believed however that the underlying promissory note and mortgage sued upon was allegedly part of a pool of notes and mortgages that formed the basis of security certificates allegedly issued by an entity known as Option One Mortgage Loan Trust 2007-CP1, a New York common law trust. 7. The alleged issuing of mortgage backed securities by the Option One Mortgage Loan Trust 2007-CP1, a New York common law trust is governed by the laws and regulations of the U. S. Securities and Exchange Commission (SEC). The SEC oversees the key participants in the securities world, including securities exchanges, securities brokers and dealers, investment advisors, and mutual funds. A primary means of accomplishing these goals is the disclosure of important financial information through the public registration of mortgage backed securities offerings. The SEC requires that the information provided be accurate. 8. In general, mortgage backed securities such as offered and sold by the Option One Mortgage Loan Trust 2007-CP1, a New York common law trust, must be registered with the SEC. The registration forms provide essential facts about things such as: a description of the company's properties and business; a description of the security to be offered for sale; information about the management of the company; and financial statements certified by independent accountants. Registration statements and prospectuses become public shortly after filing with the SEC. If filed by U.S. domestic companies, the statements are available to the public on the ‘EDGAR’ database. EDGAR is, the Electronic Data Gathering, Analysis, and Retrieval system, which performs automated collection, validation, indexing, acceptance, and forwarding of submissions by companies and others who are required by law to file forms with the SEC. 9. When one searches EDGAR for the name OPTION ONE MORTGAGE LOAN TRUST 2007-CP1, ASSET-BACKED CERTIFICATES, SERIES 2007-CP1, there are no such registered entities with that name, and EDGAR returns no matching results (http://sec.gov/edgar/searchedgar/companysearch.html). 10. However, when one searches EDGAR for the name of Option One Mortgage Loan Trust 2007-CP1, the searcher is lead to the following current filing index:
For m Description Filing Date File/Film No
10K 1515 D 10D 10D 10D 10D 10D 10D 10D 10D 10D 10D/ A 10D 8K/ A 8K 8K F W P 42 4B 5
Annual report [Section 13 and 15(d), not S-K Item 405] Acc-no: 0001056404-08-001089 (34 Act) Suspension of duty to report [Section 13 and 15(d)] Acc-no: 0001056404-08-000385 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-08-000009 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-004052 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-003640 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-003238 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-002897 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-002445 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-002312 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-002065 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-001909 (34 Act) [Amend]Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-001787 (34 Act) Asset-Backed Issuer Distribution Report [Section 13 or 15(d) of the Securities Exchange Act of 1934] Acc-no: 0001056404-07-001731 (34 Act) [Amend]Current report, items 2.01 and 9.01 Acc-no: 0000882377-07-000767 (34 Act) Current report, items 2.01 and 9.01 Acc-no: 0000882377-07-000713 (34 Act) Current report, item 9.01 Acc-no: 0000882377-07-000692 (34 Act) Filing under Securities Act Rules 163/433 of free writing prospectuses Acc-no: 0000882377-07-000587 (34 Act) Prospectus [Rule 424(b)(5)] Acc-no: 0000882377-07-000460 (33 Act)
200803-31 200801-25 200801-02 200712-10 200711-07 200710-05 200709-07 200708-02 200707-05 200706-07 200705-08 200704-12 200704-09 200703-15 200703-09 200703-08 200703-01 200702-22
333-13087005 08721603 333-13087005 08550428 333-13087005 08502647 333-13087005 071296363 333-13087005 071221769 333-13087005 071158286 333-13087005 071105039 333-13087005 071018609 333-13087005 07963603 333-13087005 07905891 333-13087005 07827357 333-13087005 07763511 333-13087005 07755474 333-13087005 07695830 333-13087005 07685461 333-13087005 07681599 333-13087005 07660263 333-13087005 07640107
F W P F W P F W P F W P
Filing under Securities Act Rules 163/433 of free writing prospectuses Acc-no: 0000882377-07-000396 (34 Act) Filing under Securities Act Rules 163/433 of free writing prospectuses Acc-no: 0000882377-07-000338 (34 Act) Filing under Securities Act Rules 163/433 of free writing prospectuses Acc-no: 0000882377-07-000335 (34 Act) Filing under Securities Act Rules 163/433 of free writing prospectuses Acc-no: 0000882377-07-000326 (34 Act)
200702-15 200702-09 200702-09 200702-08
333-13087005 07625108 333-13087005 07597440 333-13087005 07596454 333-13087005 07593017
A Form 424(b)(5) is a prospectus statement providing updated information and post-
effective amendments to a prospectus filed pursuant to Rule 424(b)(5) under the Securities Act of 1933. Form 424(b)(5) discloses information, facts or events of the public securities offering filed with the SEC. 12. A general review of the public record 424(b)(5) prospectus filed for Option One Mortgage Loan Trust 2007-CP1, a New York common law trust names, as well as all amendments and modifications (the ‘Prospectus”), shows the following relevant terms, parties and interested persons to the Trust Agreement:
SUMMARY OF TERMS This summary presents a brief description of selected information from this document and does not contain all of the information that you need to consider in making your investment decision. To understand all of the terms of the Class A and Mezzanine Certificates, read carefully this entire document and the accompanying prospectus. Annex I and Annex II are each incorporated by reference in this prospectus supplement. Offered Certificates On the Closing Date, Option One Mortgage Loan Trust 2007-CP1 will issue seventeen classes of certificates, thirteen of which are being offered by this prospectus supplement and the accompanying prospectus. The assets of the trust that will support the certificates will consist primarily of a pool of first lien adjustable-rate mortgage loans having the characteristics described in this prospectus supplement. . . . Closing Date On or about February 22, 2007. Cut-off Date February 1, 2007. Issuing Entity Option One Mortgage Loan Trust 2007-CP1. The issuing entity will be established under a pooling agreement among Option One Mortgage Acceptance Corporation, as depositor, Option One Mortgage Corporation, as servicer and Wells Fargo Bank, N.A., as trustee. The issuing entity is also referred to as the trust in this prospectus supplement. Depositor Option One Mortgage Acceptance Corporation, a Delaware corporation and a direct or indirect whollyowned subsidiary of Option One Mortgage Corporation. We refer you to “The Depositor” in this prospectus supplement for additional information. Originator, Sponsor and Servicer
Option One Mortgage Corporation, a California corporation. We refer you to “The Originator and Sponsor” and “The Servicer” in this prospectus supplement and “Servicing of the Mortgage Loans - The Servicer” in the prospectus for additional information. Seller Any or all of (i) Option One Mortgage Corporation, a California corporation, (ii) Option One Mortgage Capital Corporation, a Delaware corporation, or (iii) Option One Owner Trust 2001-1A, Option One Owner Trust 2001-1B, Option One Owner Trust 2001-2, Option One Owner Trust 2002-3, Option One Owner Trust 2003-4, Option One Owner Trust 2003-5, Option One Owner Trust 2005-6, Option One Owner Trust 2005-7, Option One Owner Trust 2005-8 and/or Option One Owner Trust 2005-9, each a Delaware statutory trust that previously acquired mortgage loans directly or indirectly from the originator. We refer you to “The Sellers” in this prospectus supplement for additional information. Trustee and Custodian Wells Fargo Bank, N.A., a national banking association. We refer you to “The Trustee” in this prospectus supplement for additional information. . . .
A general review of the Prospectus filed by the Option One Mortgage Loan Trust
2007-CP1, a New York common law trust shows the following relevant information regarding the operations and chain of assignments that the securities issuer must comply with as part of the securitization process2 and as part of the trust agreement and charter:
. . . THE MORTGAGE POOL General Option One Mortgage Loan Trust 2007-CP1 (the “Trust”) will consist of a pool of first lien adjustable-rate, fully-amortizing and balloon payment, residential mortgage loans (the “Mortgage Loans” or the “Mortgage Pool”). . . . . . . The Depositor will purchase the Initial Group I Mortgage Loans and the Initial Group II Mortgage Loans (together, the “Initial Mortgage Loans”) from the Sellers pursuant to the Mortgage Loan Purchase Agreement (the “Mortgage Loan Purchase Agreement”), among the Sellers and the Depositor. Pursuant to the Pooling and Servicing Agreement, dated as of February 1, 2007 . . . , among the Depositor, the Servicer and the Trustee, the Depositor will cause the Mortgage Loans to be assigned to the Trustee for the benefit of the Certificateholders. . . . . . Qualifications of Originators and Sellers Each Mortgage Loan will generally be originated, directly or through mortgage brokers and correspondents, by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution . . .
2 In order for a registered mortgage backed security or Real Estate Mortgage Investment Conduit (“REMIC”) to enjoy the tax exempt status allowed under 15 U.S.C. §§806A-G, it must be a “qualified mortgage.” A “qualified mortgage” is an obligation (i.e. mortgage) which is principally secured by an interest in real property which (1) was transferred to the Trust on the startup date, (2) was purchased by the REMIC Trust within 3 months after the startup date or (3) any qualified replacement mortgage. 15 U.S.C. §§806A-G is applicable to Option One Mortgage Loan Trust 2007-CP1, a New York common law trust.
. . . THE POOLING AGREEMENT General The Certificates will be issued pursuant to the Pooling Agreement. The Trust created under the Pooling Agreement will consist of (i) all of the Depositor’s right, title and interest in the Mortgage Loans, the related mortgage notes, Mortgages and other related documents, (ii) all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, together with any proceeds thereof, (iii) any Mortgaged Properties acquired on behalf of Certificate holders by foreclosure or by deed in lieu of foreclosure, and any revenues received thereon, (iv) the rights of the Trustee under all insurance policies required to be maintained pursuant to the Pooling Agreement, (v) the Net WAC Rate Carryover Reserve Account, (vi) the rights of the Depositor under the Mortgage Loan Purchase Agreement and (vii) the right to any Net Swap Payment and any Swap Termination Payment paid by the Swap Provider and deposited into the Swap Account. Assignment of the Mortgage Loans On the Closing Date, the Depositor will transfer to the Trust all of its right, title and interest in and to each Mortgage Loan, the related mortgage note, Mortgage, assignment of Mortgage in recordable form in blank or to the Trustee and other related documents (collectively, the “Related Documents”), including all scheduled payments with respect to each such Mortgage Loan due after the Cut-off Date. The Trustee, concurrently with such transfer, will deliver the Certificates to the Depositor. Each Mortgage Loan transferred to the Trust will be identified on a schedule (the “Mortgage Loan Schedule”) delivered to the Trustee pursuant to the Pooling Agreement. The Mortgage Loan Schedule will include information such as the Principal Balance of each Mortgage Loan as of the Cut-off Date, its Mortgage Rate as well as other information with respect to each Mortgage Loan. The Pooling Agreement will require that, within the time period specified therein, the Depositor will deliver or cause to be delivered to the Trustee (or a custodian, as the Trustee’s agent for such purpose) the mortgage notes and the Related Documents. In lieu of delivery of original Mortgages or mortgage notes, if such original is not available or lost, the Depositor may deliver or cause to be delivered true and correct copies thereof, or, with respect to a lost mortgage note, a lost note affidavit executed by the Originator. The assignments of Mortgage will not be recorded by or on behalf of the Depositor in the appropriate offices for real property records; provided, however, upon the occurrence of certain events set forth in the Pooling Agreement, each such assignment of Mortgage will be recorded by the Seller as set forth in the Pooling Agreement. . . . . . . . The Originator will make certain representations and warranties as to the accuracy in all material respects of certain information furnished to the Trustee with respect to each Mortgage Loan (e.g., Principal Balance and the Mortgage Rate). In addition, the Sponsor will represent and warrant, as of the Closing Date, that, among other things: (i) at the time of transfer to the Seller, the Originator transferred or assigned all of its right, title and interest in each Mortgage Loan and the Related Documents, free of any lien . . . . . . Servicing of Delinquent Mortgage Loans The Servicer will be required to act with respect to delinquent Mortgage Loans in accordance with procedures set forth in the Pooling Agreement. These procedures, as followed with respect to any delinquent Mortgage Loan, may, among other things, result in (i) foreclosing on such Mortgage Loan, (ii) accepting the deed to the related Mortgaged Property in lieu of foreclosure, (iii) granting the borrower under such Mortgage Loan a modification or forbearance or (iv) accepting payment from the borrower under such Mortgage Loan of an amount less than the Principal Balance of such Mortgage Loan in final satisfaction of such Mortgage Loan. . . . . . . DESCRIPTION OF THE CERTIFICATES . . . Assignment of Trust Fund Assets At the time of issuance of a series of Certificates, the Depositor will assign, or cause to be assigned, to the related Trustee or its nominee, without recourse, the Mortgage Loans being included in the related Trust Fund, together with all principal and interest received on or with respect to such Mortgage Loans after the
Cut-off Date. . . . . . . The Trustee will, concurrently with such assignment, deliver the Certificates of such series to or at the direction of the Depositor in exchange for the Mortgage Loans in the related Trust Fund. . . . In addition, the Depositor will, as to each Mortgage Loan . . . deliver, or cause to be delivered, to the related Trustee the Mortgage Note endorsed, without recourse, either in blank or to the order of such Trustee the Mortgage with evidence of recording indicated thereon (except for any Mortgage not returned from the public recording office), an assignment of the Mortgage in blank or to the Trustee in recordable form, together with any intervening assignments of the Mortgage with evidence of recording thereon (except for any such assignment not returned from the public recording office), and, if applicable, any riders or modifications to such Mortgage Note and Mortgage, together with certain other documents at such times as set forth in the related Pooling Agreement. . . .
A general review of the Prospectus filed for Option One Mortgage Loan Trust 2007-
CP1, a New York common law trust also incorporates in as an exhibit a Pooling and Service Agreement dated February 1, 2007 as Exhibit 4.1 to the Prospectus (the “PSA”). 15. The PSA, in conjunction with the Prospectus, lists and describes the responsibilities and duties owed to the trust by the Master Servicer, Servicer and Trustee and generally sets forth the mechanics of how the securitized trust will function and how the parties and vendors will inter act in complying with such securitized trust. Section 3.01 of the PSA states that the Servicer shall service and administer the Mortgage Loans on behalf of the Trust and in the best interests of and for the benefit of the trust certificate holders and in accordance with the terms of the PSA and the Mortgage Loans.
Section 2.01- Conveyance of Mortgage Loans contained in the PSA provides as
The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey in trust to the Trustee without recourse for the benefit of the Certificate holders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule. . . . . . In connection with such transfer and assignment, the Depositor, does hereby deliver to, and deposit with the Trustee, or its designated agent (the “Custodian”), the following documents or instruments with respect to each Mortgage Loan so transferred and assigned by the Originator, on behalf of the Depositor: (i) the original Mortgage Note, endorsed either (A) in blank, in which case the Trustee shall cause the endorsement to be completed or (B) in the following form: “Pay to the order of Wells Fargo Bank, N.A., as Trustee, without recourse”. . . ; (ii) the original Mortgage with evidence of recording thereon . . .; (iii) an original Assignment. The Mortgage shall be assigned either (A) in blank or (B) to “Wells Fargo Bank, N.A., as Trustee, without recourse”; (iv) an original of any intervening assignment of Mortgage showing a complete chain of assignments . . . ;
Section 2.02- Acceptance by Trustee contained in the PSA provides as follows:
Subject to the provisions of Section 2.01 and subject to the review described below and any exceptions noted on the exception report described in the next paragraph below, the Trustee acknowledges receipt of the documents referred to in Section 2.01 above and all other assets included in the definition of “Trust Fund” and declares that it holds and will hold such
documents and the other documents delivered to it constituting a Mortgage File, and that it holds or will hold all such assets and such other assets included in the definition of “Trust Fund” in trust for the exclusive use and benefit of all present and future Certificate holders. . . . . . . The Depositor and the Trustee intend that the assignment and transfer herein contemplated constitute a sale of the Mortgage Loans, the related Mortgage Notes and the related documents, conveying good title thereto free and clear of any liens and encumbrances, from the Depositor to the Trustee in trust for the benefit of the Certificate holders and that such property not be part of the Depositor’s estate or property of the Depositor in the event of any insolvency by the Depositor.
Therefore, in the instant case, no later than February 22, 2007 (the Closing Date), the
underlying Note and Mortgage sued upon would have originated with Option One Mortgage Corporation, a California corporation (Originator and Seller), then sold/transferred pursuant to a written purchase agreement to Option One Mortgage Acceptance Corporation, a Delaware corporation (the Depositor). The Note and Mortgage was then to be transferred/assigned by the Depositor in blank to the Issuing Entity (Option One Mortgage Loan Trust 2007-CP1, a New York common law trust) or to the Trustee (Wells Fargo Bank, N.A.) without recourse for the benefit of the Certificate Holders. Below is an illustrative chart for the transfers of the underlying Note and Mortgage sued upon pursuant to the Prospectus and the PSA:
However, it is clear from the record that Plaintiff has not and can not prove it owned the
Note and Mortgage sued upon at the time the instant Complaint was filed. Pursuant to the Loan Modification attached hereto as Exhibit “A”, the underlying Note and Mortgage sued upon must have been transferred on or about February 19th, 2008 out of its normal course from the Trust/Issuing Entity (Option One Mortgage Loan Trust 2007-CP1, a New York common law trust) backwards to the Originator and Sellers (Option One Mortgage Corporation, a California corporation). Defendant has contested Plaintiff’s standing since the inception of this action, yet Plaintiff has failed to produce or allege the two (2) missing transfers/assignments. 20. In Defendant’s Second Amended Response filed on or about July 6th, 2009, Defendant’s First, Second and Third Affirmative Defenses, each of which are incorporated herein by reference, asserted a similar defect, i.e. that the current Plaintiff did not own the underlying Note and Mortgage sued upon at the time the instant action was filed. These Affirmative Defenses are specifically enumerated in Rule’s 1.140 (b)(7) and (h)(2); Rule 1.140 (b)(1) and (h) (2); and Rule 1.140 (b)(6) and (h) (2), respectively. 21. In the instant case, the Complaint and attached exhibits identify an inconsistency between the Plaintiff’s allegations of material fact as to who the real party in interest is. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss."). Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000) Greenwald v. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So.2d 1114 (Fla. 3rd DCA 1983); See also: Taylor, Bean & Whitaker Mortgage Corp. v. Brown, 583 S.E. 2d 844 (Ga. 2003). 22. 23. While Plaintiff alleged in its Complaint that it was the holder of the Note and/or Plaintiff offers no bill of sale or purchase agreement, or similar type of evidence as to Mortgage, the copies of the same attached to Plaintiff’s Complaint lists a different lender and mortgagee. when it came to own the Note, even though such documentation should be readily available. Plaintiff also offers no proof whatsoever as to when the assignments took place back and forth in regards to the Loan Modification. While this should be a simple and direct allegation to prove, Plaintiff has failed to do so. 24. It is axiomatic that a suit cannot be prosecuted to foreclose a mortgage which secures the payment of a promissory note, unless a plaintiff actually owns the original note. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); See also Philogene v. ABN Amro Mortgage Group, Inc. 948 So. 2d 45, 46 (Fla. 4th DCA 2006). A plaintiff that does not own the original note sued upon has no standing
Certificate Holders Issuing Entity Multiple One Mortgage Loan Trust Depositor/Purchaser Option classes of certificates are Originator and Sellers sold to Mortgage Acceptance (Option One New York common 2007-CP1, investors for cash law (Option OneaMortgage Corporation, a Corporation, a Delaware corporation) trust California corporation)
Trustee and Custodian (Wells Fargo Bank,Borrower/Mortgagor N.A., a national Notes and and banking association.)- Notes Mortgages Mortgages held for the benefit of the
such action must be disposed of with prejudice. See Downing v. First National Bank of Lake City, , 81 So. 2d 486, (Fla., 1955); Tamiami Abstract and Title Company v. Berman, 324 So. 2d 137 (Fla 3rd DCA 1975); Laing v. Gainey Builders, Inc. 184 So. 2d 897 (Fla. 1st DCA 1966); Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (FLA. 4th DCA 1975); Shelter Development Group v. MMA of Georgia, Inc., 50 B.R. 588 (USBC, S.D. Florida 1985); Voges v. Ward, 98 Fla. 304, 123 So. 785 (Fla. 1929); Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281 (2nd DCA 2005); Livingston v. State Farm Mut. Auto Ins. Co., 774 So. 2d 716, 718 (Fla. 2d DCA 2000); Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990); See also 37 Fla. Jur. Mortgages and Deeds of Trust §240 (One who does not have the ownership of the obligation secured by a mortgage, may not foreclose the mortgage). 25. Florida Rules of Civil Procedure Rule 1.140 (b)(1) and (h) (2) provide that the defense of lack of subject matter jurisdiction may be raised by motion at the option of the pleader or at anytime throughout the entire proceeding. Subject matter jurisdiction is a favored defense and is never timebarred. Cunningham v. Std. Guar. Ins. Co., 630 So. 2d 179 (Fla. 1994); Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927); Maynard v. Fla. Bd. of Educ., 2008 Fla. App. LEXIS 5890 (Fla. Dist. Ct. App. 2d Dist., Apr. 23, 2008). Defendant could raise lack of subject matter for the first time at a hearing on Motion for Summary Judgment or even on appeal. See Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n, 968 So. 2d 658 (Fla. Dist. Ct. App. 2d Dist. 2007). 26. Subject matter jurisdiction must be properly invoked and perfected. A court's jurisdiction is generally invoked in a given case by a party filing a proper pleading which alleges material facts demonstrating (1) the existence of a judicial controversy (a right in dispute between two or more parties) within the subject matter jurisdiction of the court and (2), when a binding judicial determination requires the court to act directly on an object (a res), that such court has, or can acquire, jurisdiction over such res. After the court's jurisdiction has been properly invoked, it is perfected by a proper service of sufficient process on all indispensable parties. This is called acquiring "jurisdiction over the person." There must be a right in dispute between two or more parties. Fla. Power & Light Co. v. Canal Auth., 423 So. 2d 421 (Fla. Dist. Ct. App. 5th Dist. 1982) 27. The determination of standing to sue concerns a court's exercise of jurisdiction to hear and decide the cause pled by a particular party. See Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So. 2d 1350, Fla. 1993. Lack of standing deprives the Court of subject matter jurisdiction. See Rowen v. Holiday Pines Prop. Owners' Ass'n, 759 So. 2d 13 (Fla. Dist. Ct. App. 4th Dist. 2000). 28. A trial court's lack of subject matter jurisdiction makes its judgments void, and a void judgment can be attacked at any time, even collaterally. Strommen v. Strommen, 927 So. 2d 176 (Fla. Dist. Ct. App. 2d Dist. 2006). 29. Furthermore, parties cannot stipulate to jurisdiction over the subject matter where
none exists. Cunningham v. Std. Guar. Ins. Co., 630 So. 2d 179 (Fla. 1994); Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927). 30. Plaintiff has failed to, and can not, legally establish that it owned the Note and Mortgage at the time the instant law suit was filed. The Court’s lack of subject matter jurisdiction to proceed is apparent on the face of the record. 31. Standing requires that the party prosecuting the action have a sufficient stake in the outcome 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 in Florida courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et al, 462 So. 2d 1178, (Fla. 3d DCA 1985). 32. The documents before the trial court at the summary judgment hearing do not establish Plaintiff’s standing to foreclose the Mortgage at issue, and thus, at this point, Plaintiff is not entitled to summary judgment in its favor. BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 2010 Fla. App. LEXIS 1447 (Fla. Dist. Ct. App. 2d Dist. Feb. 12, 2010). WHEREFORE, Defendant prays that this Honorable Court take jurisdiction of this case; dismiss Plaintiff’s Complaint; award Defendant statutory and/or actual damages in an amount to be established at trial, including prejudgment interest on all amounts, court costs and reasonable attorney fees; rescind the transaction and order Plaintiff to take all action necessary to terminate any of its security interest in Defendant’s property created under the loan transaction and declare all such security interests void, including but not limited to the mortgage related to the transaction; order the return to Defendant any money or property given by Plaintiff to anyone in connection with the transaction; enjoin Defendant during this action and permanently thereafter from instituting prosecuting or maintaining foreclosure proceedings upon Defendant’s property, or from recording any deeds or mortgages on the property or from otherwise taking steps to defraud Defendant’s ownership of its property; order that the right to retain proceeds vests in Defendant; grant a trial by jury on all issues so triable; and grant such other relief as this Court deems just and proper under the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 6th day of July, 2011, a true and correct copy of the foregoing has been furnished via U.S. Mail and hand delivery to Akerman Senterfitt at 401 E. Jackson Street, Ste 1700, Tampa, FL 33602 and by fax to 813-223-2837 and 1-954-463-2224. STAMATAKIS & THALJI, P.L. By:
Scott D. Stamatakis, Esquire Florida Bar No.:178454 P.O. Box 341499 Tampa, Florida 33694 (813) 282-9330 (telephone) (813) 282-8648 (facsimile)
IN THE CIRCUIT COURT OF THE FIFTHJUDICIAL CIRCUIT IN AND FOR MARIONCOUNTY, FLORIDA CIVIL ACTION DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF JUNE 1, 2007 SECURITIZED ASSET-BACKED RECEIVABLES, LLC TRUST 2007-BR5 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-BR5 , Plaintiff, CASE NO.: 09-1245-CAG vs. DIVISION: * JAMES R. VERNON, BETTY KAYE VERNON, Defendant(s) ___________________________ / AFFIDAVIT IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BEFORE ME this day personally appeared SCOTT STAMATAKIS, personally, and who upon oath, deposes on personal knowledge and says: 1. That this affidavit is submitted in opposition to Plaintiff's Motion for Summary
Judgment for the purpose of showing that there are genuine issues of material facts or law, especially as to the amount of Plaintiff’s damage claim. 2. That I have personal knowledge of the facts contained in this affidavit and the
Complaint, Answer and Affirmative Defenses, as well as the documents produced by Plaintiff in regards to Defendants Request to Produce, and also the responses made by Plaintiff in regards to Defendant’s First Request for Admissions, all of which have been filed in this action. 3. Plaintiff failed to deliver any documents whatsoever until on or about June 9,
2009, having dropped them on Plaintiff’s counsel only 10 days before the hearing on an Motion for Summary Judgment which had been previously set by Plaintiff’s counsel. Therefore, at the current moment, counsel for the undersigned is still reviewing all discovery produced by the Plaintiff for further violations as alleged in Defendant’s Answer and Affirmative Defenses. Furthermore, Plaintiff failed to mail a copy of its Motion for Summary Judgment to the undersigned until today. 4. In support of Defendant’s Fourteenth Affirmative Defense, attached hereto as
Exhibit “A” is the HUD-1 Settlement Statement (HUD-1) for the refinance closing that took place
for the property at issue. Said HUID-1 was produced by Plaintiff in response to Defendant’s Request to Produce. 5. The HUD-1, line 816, shows a charge or fee in the amount of $2,592.00 (POC by
Lender) for a “Yield Spread Premium’ (“YSP”) A YSP is the money paid to a mortgage broker based on an interest rate above the lowest rate the borrower qualifies for (called the par rate). Banks and mortgage brokers make money by setting interest rates above wholesale prices to consumers. Generally, consumers are unaware of the premium a direct lender such as a bank earns when it sets rates to its borrowers above the par rate. See www.wikipedia.org 6. Under the federal Truth in Lending Act (TILA), the amount of the finance charge
is the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit. Among other things, a charge for a premium or other charge for any guarantee or insurance protecting the creditor against the obligor's default or other credit loss must be included in the finance charge under TILA, 15 U.S.C.S. § 1605(a)(5). W.S. Badcock Corp. v. Myers, 696 So. 2d 776 (Fla. Dist. Ct. App. 1st Dist. 1996) 7. In further support of Defendant’s Fourteenth Affirmative Defense, attached hereto
as Exhibit “B” is the Itemized Good Faith Estimate “(GFE”) for the refinance closing that took place for the property at issue. Said GFE was produced by Plaintiff in response to Defendant’s Request to Produce. Nowhere in the attached GFE at issue does it disclose $2,592.00 as part of the finance charge. 8. . The right to rescind may extend up to three years if the required notice or material
disclosures are not delivered properly. Reg. Z, 12 C.F.R. § 226.23(a)(3); 15 U.S.C. § 1635(a); Dailey v. Leshin, 792 So. 2d 527, 530 (Fla. Dist. Ct. App. 4th Dist. 2001). 9. Creditors must strictly comply with TILA. In re Porter, 961 F.2d 1066, 1078 (3d Cir.
1992); Pignato v. Great Western Bank, 664 So. 2d 1011, 1013 (Fla. Dist. Ct. App. 4th Dist. 1995). 10. The finance charge tolerance (for recission) for defendants in foreclosure actions is a
$35 mis or non disclosure. 12 C.F.R. 226.23(h),
Therefore, Plaintiff Plaintiff and/or their assignor failed to deliver all material
disclosures required by TILA and Regulation Z including the following: (a) failing to clearly and accurately disclose the amount financed using that term in violation in Reg. Z 226.18(b) and §1638(a) (2)(A); (b) failing to clearly and accurately disclose the finance charge using that term in violation of Reg. Z 226.4, 226.18 and § 1638(a)(3); (c) failing to clearly and accurately disclose the annual percentage rate ,including any variable feature disclosure, using that term in violation of Reg. Z 226.18(e) and § 1638(a)(4); and (d) failing to properly disclose the number, amounts, and timing of payments scheduled to repay the obligation, in violation of Reg. Z 226.18(g) and § 1638(a)(6). 12. Defendant timely exercised its right to TILA recission on or about April 24, 2009 by
filing the same with the Court and hereby gives notice again per the attached Exhibit “C.” Sign Name: Print Name: Scott Stamatakis STATE OF FLORIDA COUNTY OF HILLSBOROUGH The following instrument was sworn to and subscribed before me this 12th day of June, 2009, by Scott Stamatakis who is personally known to me or produced as identification. ____________________________________ Notary Public, State of Florida My Commission Expires: ____________________ CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 12th day of June, 2009 a true and correct copy of the foregoing has been furnished via U.S. Mail to to DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER POOLING AND SERVIC c/o POPKIN & ROSALER, P.A. at 1701 WEST HILLSBORO BLVD., STE. 400, DEERFIELD BEACH, FL 33442, and was also faxed to POPKIN & ROSALER, P.A. to (954) 420-5187 before 5:00PM.
STAMATAKIS & THALJI, P.L. By: Scott D. Stamatakis, Esquire Florida Bar No.:178454 Sami Thalji, Esquire Florida Bar No.:165913 P.O. Box 341499 Tampa, Florida 33694
(813) 282-9330 (telephone) (813) 282-8648 (facsimile) Counsel for Defendant
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