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CASE NUMBER: 08-019585-CI-19 THE BANK OF NEW YORK MELLON, f/k/a The Bank of New York as Successor in Interest to JP Morgan Chase Bank, N.A. as Trustee for CWABS 2004-S Plaintiff, Vs. JOHN R. DESILVA, a/k/a John R. DaSilva; Et al, Defendants. _____________________________________/ MOTION TO DISMISS COMES NOW, the Defendant, JOHN R. DESILVA, by and through his undersigned attorney, and pursuant to FLA.R.Civ.P. 1.420 et seq., who moves this Honorable Court for an Order dismissing this complaint, or for a more definite statement or an abatement of the proceedings, and for an award of attorneys fees and costs for the reasons which follows: 1. That the complaint was filed with the named Plaintiff THE BANK OF NEW YORK MELLON f/k/a The Bank of New York as Successor in Interest to JP Morgan Chase Bank, N.A. as Trustee for CWABS 2004-S. 2. That the Plaintiff is a foreign entity as set forth in its own case style based in a state other than Florida. 3. That as such, Plaintiff is required to post a bond pursuant to FS 57.011 as a condition of bringing any action in the courts of this state. 4. That Plaintiff failed to plead that it posted the requisite bond. 5. That therefore, this action is subject to dismissal by this court. 6. That this requirement is statutory and cannot be waived by the Plaintiff. 7. That in paragraph 9 of the Plaintiff’s complaint they allege that all conditions precedent to the filing of this action have been met by plaintiff. 8. That the plaintiffs have attached exhibits C, D, E & F to the motion for Summary Judgment and have acknowledged that these documents are agreements that have modified the original terms of the original note.
2009. 15.9. 13. mortgagee. That this complaint was filed on or about December 23. the summons quashed and the Plaintiff should be required to refile and comply with the applicable statute provisions. 2008 and amended on June 30. as Trustee for CWABS 2004-S. 11. the parties have contracted and agreed that this agreement shall be governed by California Law. That the Plaintiff’s complaint should immediately be stricken. 18. That in subsection (2) the code goes on to state that: Not less than three months shall elapse from the filing of the notice of default (before suit may be filed). 19. That pursuant to the “Miscellaneous Provisions” article of the amendment to the original note. or any of their authorized agents shall first file for record. 17. or beneficiary. That there is no relation back doctrine available to repair this defect. That California Civil Code Section 2924. a notice of default. f/k/a The Bank of New York as successor in interest to JP Morgan Chase Bank. in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated. 2008 a copy of a document claiming to be a Home Equity Credit Line Agreement and Disclosure statement was filed with the . That as such. 10. 12. That a mortgage is attached to the complaint in the “Exhibit B” which states on page 1 of said document that “MERS is the mortgagee under this Security Agreement”.. N. (1) states that before a lawsuit for Foreclosure is filed. That on December 23. 16. That the plaintiff in this action is alleged to be THE BANK OF NEW YORK MELLON. That the Plaintiff’s failure to comply with the provisions of California Civil Code Section 2924 is a complete and absolute bar to the issuance of a summons.A. 14. service on the plaintiff is improper and should be immediately quashed. The trustee.
Inc. again a copy of this document was attached. That at the time of filing of this document there were no endorsements attached to this document copy. 3d 936 (Fla. BAC Funding Consortium. again without any endorsements attached. ISAOA/ATIMA v.original complaint showing the agreement was entered into between the Defendant and Countrywide Home Loans. That there are no other documents that give Plaintiff authority to bring this action either attached to the complaint or filed at any later date. Inc. Booker v. That at no time does the complaint or any attached affidavits or documents allege that the Plaintiff “Owns” the note or is a “Holder” of the note as defined by the UCC. 28. 25. Inc. subsequent to December 23. 27. 20. 2d DCA 2010).. 2004.. Countrywide Home Loans. retained the right to enforce and modify the terms of the instrument. That Plaintiff is required to establish through admissible evidence that it had standing to foreclose. Inc. That when the amended complaint was filed on June 30. 889 (Fla. . That the Plaintiff has further affirmed under oath that it has held the note since December 23. 28 So. JEANJACQUES. That Clearly based on the actions of Countrywide Home Loans. 1st DCA 1998). 707 So. 23. 2004. 22. That the complaint alleges in paragraph 5 that the Plaintiff holds the note and Mortgage and is duly authorized to bring this action. 26. 2d 886. 30. That in paragraph 4 of the Plaintiffs complaint they state that “Beneficial interest in this loan was at all times retained by Countrywide”. 24. 21. Sarasota. 2009. 29. That there is no allegation in the complaint that the Mortgage or the “Agreement” was ever transferred to the Plaintiff in any capacity other than a repository for the agreement. Inc. That pursuant to UCC 3-203 (a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.
That there has been no assignment of the amendments to the note.R. That there is no affidavit or other indicia that this mark is the actual signature of David A. That the plaintiff has subsequently filed an original agreement bearing the mark that says “Pay to the order of _______ Without Recourse Countrywide Home Loans. 32. the attached amendments and modifications made in 2007 and 2008 have substantially altered the terms of the note. 624 (Bankr. That even if we assume that the Plaintiff’s statement that they have been in possession of the note since December 23. Spector on rubber stamp endorsements affixed to Countrywide Home Loans have been “Robo Signed” by junior members of Countrywide Home Loans. Countrywide Home Loans Inc. 36. 39. That it has been alleged that the signature of David A. N. 2004.31. 41. Inc or by members of the law firm of David Stern in the past. . Managing Director. That the most famous of these suits is the federal suit of Kemp v. By: (Scribble mark) David A. That the Florida Supreme Court and the Florida Bar has made it very clear that there is an affirmative duty on behalf of the Plaintiff to guarantee that documents filed are not fraudulent. 440 B. 34. Inc. D.. Spector. That this action was originally instituted by the law firm of David Stern. That there are currently at least 106 active lawsuits either against or involving David A. 37. 38. 40. That just because someone places a note or an agreement in a safety deposit box in a bank does not give the bank authority to have legal standing to act under the terms of that note or agreement. That there is an extremely high degree of likelihood that this signature is a fraudulent signature. 35. 2010). 33.J. Spector or that this affixation was made by Countrywide Home Loans. (In re Kemp). Spector claiming fraud. Inc.
Inc. dominion and control over these agreements until at a bare minimum of March 26. 2008 prior to the filing of any assignment. That further as of March 26. the Defendant was current in his obligation to Countrywide Home Loans. the “Agreement” and amendments to the “Agreement” are not a note and negotiable instrument but are in fact a legal contract between the Defendant and Countrywide Home Loans. and there is no material issue as to the lack of standing of Plaintiff to bring this action. v. 43. 2008. 45. That the Plaintiff recorded a Lis Pendens in the Public Records of Pinellas County.42. 913 So2d 1281 (Fla. Inc. That the Lis Pendens is void ab initio and should be stricken. 2DCA 2005)). That Clearly Countrywide Home Loans. 48. 49. 47. maintained ownership interest. 44. Inc. That there have been no documents filed that indicate any transfer of interest after March 26. That the Plaintiff clearly had no standing at the time they filed the Lis Pendens. McGrath Community Chiropractic. 46. Co. and there is no “Relates Back Doctrine” pertaining to standing. That at the time of filing of this action. That the four corners of the complaint are inconsistent as to the attached documents and the proper party Plaintiff/indispensable party and the alleged Plaintiff plead. 2008. Florida on December 23. 50. That in the alternative. an assignment. in this case. 52. A Lis Pendens must have a recorded document to relate to so that it is valid. there was no assignment in existence in the public records at the time of the filing. Inc. (See Progressive Express Ins. 2008. pursuant to the agreement filed by the Plaintiff dated March 26. That in this case. there is no evidence that this Plaintiff has any standing to bring this action. 53. 51. That these “Agreements” must be assigned with specificity to anyone wanting to act on behalf of Countrywide Home Loans. 2008. . and the Lis Pendens is void ab initio and should be dissolved by this court.
all pages of the attached mortgage shows that this is a Fannie Mae/Freddie Mac underwritten Mortgage. 55. 4D103429 (Fla. 56. That the Defendants have engaged the undersigned attorney and have agreed to pay reasonable attorneys fee and costs to defend this action. and (b) Florida Statute 57. 57. That those required conditions precedent to any foreclosure are part of specific contractual terms that are incorporated by reference into the terms of the mortgage that is the subject of this action.. That the Defendants properly relied upon those written representations of Fannie Mae and/or Freddie Mac underwriting prior to the execution of any documents relevant to this action. and (c) the inherent authority of this Honorable Court. 62. and does not have standing. .54.App. 59. That Defendants are entitled to attorney’s fees and costs in this action to be taxed against Plaintiff pursuant to (a) the complaint’s incorporated mortgage terms. Plaintiff has failed to state a cause of action. 4 Dist. That Fannie Mae and Freddie Mac have specific requirements for conditions precedent that must be met as to options for the mortgagor to work out any default before the mortgage can proceed to foreclosure. That further. 61. That there is no allegation in the pleading that the Plaintiff complied with any of these required conditions precedent before the filing of this action. 12-14-2011) 837 that this Honorable Court retain jurisdiction of this matter so that it may file the appropriate sanctions including dismissal with prejudice and attorney’s fees. or in the alternative. and there are no material facts in dispute. 60. 58. Plaintiff has failed to join a party indispensable for the adjudication of this action. That if this Honorable Court finds that a fraud has been committed upon this Court that pursuant to McLEAN v. the action is barred from enforcement.105 et seq. That based on Plaintiff’s own pleadings. JP MORGAN CHASE BANK.
Enter an Order awarding attorneys fees and costs to the Defendants to be taxed to the Plaintiff. and 5. The Keefe Law Group Kenneth Hoffmann Keefe. Jackson Street.WHEREFORE. 2011. 487340 Keefe Law Group 25 Second Street North. Enter an Order granting summary judgment in favor of the Defendant JOHN R. Esq. for lack of standing or for failure to join an indispensable party. 2. FL 33602 by regular U. Defendants respectfully request that this Honorable Court. CERTIFICATE OF SERVICE I HEREBY CERTIFY. C/O Hallie S. Enter an Order dissolving the Lis Pendens recorded by the Plaintiff. Enter an Order dismissing this cause of action for failure to state a cause of action upon which relief can be granted WITH PREJUDICE. or in the alternative. Roberts SPN: 01099559/844675 . or abate and 3. Florida Bar No. Tampa.S. Grant such other relief as this Honorable Court would deem Appropriate including sanctions. SunTrust Financial Centre. and 4. Petersburg. Suite 1700. that a true and correct copy of the foregoing has been furnished to Akerman Senterfitt. 401 E. DESILVA. Mail this _______ day of December. 1. Suite 120 St. FL 33701 (727) 328-4556 (Phone) (727) 490-4949 (Fax) By:________________________ Carl G. Evans.
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