IN THE CIRCUIT COURT OF THE NINTEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR ST.
LUCIE COUNTY WELLS FARGO BANK, N.A., Plaintiff, v. JOHNNETH DOE, JANE DOE, et. al., Defendants. _______________________________/ Case No.: 05-2009-CA-0XXXX
DEFENDANT’S EMERGENCY MOTION TO VACATE JUDGMENT SALE OF PROPERTY APPEARS TO BE JANUARY 7, 2010 Comes now the defendant, JOHNNETH DOE and JANE DOE (“Defendants”), by and throug h undersigned counsel, and hereby files their motion to vacate foreclosure judgm ent, pursuant to Rules 1.540(b) Fla. R. Civ. P., states: I JUDICIAL NOTICE REQUESTED 1. The Court is requested to take judicial notice of all pleadings and othe r documents in the court file in this matter. II FACTS 2. On or about January 8, 2009, Plaintiff filed its Complaint for foreclos ure in this case. The Complaint alleges as Count 1 the reestablishment of a los t note and Count 2 in foreclosure. 3. The mortgage that is attached to the Complaint names the Lender as Fremo nt Investment & Loan. Plaintiff claims that it owns and holds the Promissory No te. (Complaint, para. 7 & 14) There is no copy of the Promissory Note attached to the Complaint, there is no allegation that the Promissory Note was ever indo rsed to the Plaintiff and/or its predecessors in interest or that there was an a llonge attached to said note made payable to the Plaintiff and/or its predecesso rs in interest. 4. On January 30, 2009, Defendants filed a Response to the Complaint. (Exh ibit 1, Registry of Action) 5. On May 11, 2009, the clerk entered a default as to JANE DOE but not as t o JOHN DOE. The clerk default was in error as the Response that was filed by the Defendants on January 30, 2009 was actually filed in the name of both JANE DOE and JOHN DOE. (Exhibit 2) 6. In February, 2009, Defendants had begun phone conversations with Wilshir e Credit Corporation regarding stopping the foreclosure and obtaining a loan mod ification. Wilshire Credit Corporation being the loan servicer for the Plaint iff. As of July, 2009, Wilshire Credit Corporation still had not processed the
loan modification for the Defendants. decrees or orders if there is merit to the case. 13. On September 3. or excusable neglect. The rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment. order. In paragraph (b) on motion and upon such terms that are just. surprise. The Final Judgment did not address the Defendants Motion to Dismiss or the pending Discovery. On September 3. which there is in this cas e. 2009. the matter was set for a hearing on Plaintiff s Motion f or Summary Judgment for September 8. Florida Rule of Civil Procedure section 1.540(b) gives relief from judgm ent. the Court awarded Summar y Judgment to the Plaintiff though the Defendant had a Motion to Dismiss pending as well as discovery. 2009. 2009. Defendants then filed and serve d upon the Plaintiffs a Request for Production of Documents and Request for Admi ssions. vacate. Defendants also filed a Motion to Dismiss for lack of standing that again addressed the Plaintiffs ownership and holding of said n ote. (Exhibit 3) 7. but neither had it denied the loan modific ation and Defendants continued to believe that they were working out their forec losure. inadvertence. (Exhibit 7)
III LAW AND ARGUMENT A. decree. decree. 2009. which by due diligence could not have been discovered in time to move for a new trial or rehearing. and to dismiss the foreclosure proceeding upon the payment of all court costs. and authority to rescind. Standard on Motion to Set Aside Judgment
11. and set a side a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decr ee. Defendants decided that the Plaintiff was not acti ng in good faith towards the loan modification. or proceeding for the following reasons: i. B.07 provides in pertinent part:
The circuit courts of this state. The mortga
. Newly discovered evidence. 12. On May 8. 2009. or other misconduct of an adverse party. th e Plaintiff had not provided to the Defendants any of the requested discovery. or proceeding or to set aside a judgment or decree for fraud upon the court. and the judges thereof at chambers. ii. order. the court may relieve a party or a party’s legal representative from a final judgment. On September 8. Florida Statute 702. These documents primarily seeking evidence regarding the standing of t he Plaintiff in regards to the Note and Plaintiffs claim of ownership and holdin g of said Note. (Exhibit 6) 9. sh all have jurisdiction. Mistake. At the Plaintiff s Motion for Summary Judgment. Fraud (whether heretofore denominated intrinsic or extrinsic). misrepresentation. and iii. 10. Summary Judgment Should Not Be Granted if Discovery is Pending Plaintiff had a count to reestablish a lost promissory note. (Exhibit 4) 8. (Exhibit 5) 8. at the Plaintiff s Motion for Summary Judgment. power.
1 DCA. 43-44 (Fla. Pepe v."). Defendant s pending discovery sought to determine Plaintiff s standing to enforce the lost promissory note. the note is the essence of the debt.3091 states: (1)A person not in possession of an instrument is entitled to enforce instrument if: (a)The person seeking to enforce the instrument was entitled t o enforce the instrument when loss of possession occurred. Inc. Collazo v. 277 So. See Holl v. Stick. Plaintiff failed to provide an affidavit of the terms of the Promisso ry Note. 702 So. t he facts are not sufficiently developed to enable the trial court to determine w hether genuine issues of material facts exist. Sobel v. 5th DCA 1999)("Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions. 3 DCA 1982). 2d 616. where discovery is still pending. the entry of Summary Judgment is premature. 631 (Fla. 3 DCA 1983). 2d 63 7. and (c)The person cannot reasonably obtain possession of the instr ument because the instrument was destroyed. Plaintiff failed to comply with Florida Statutes section 673. Terco Prop. 2d 631. Adequate protection may be provided by any reasonable me ans. 2d 77 (Fla. 622 So.3081 applies to the case as if the person seeking enforcement had produced the instrument. Where discovery is not complete. 2d 637 (Fla. 441 So. If that proof is made. One May Not Foreclose Without a Promissory Note
15. See Smith v. 693 So. Ohio. See Singer v. 3d DCA 1997) (holding that a tr ial court should not entertain a motion for summary judgment while discovery is still pending). Florida Statutes section 673. 4th DCA 1987). or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred. Shepherd. Star. 510 So. 2d 610. First Nat l Bank of Day ton. Smith. Henderson v. 2d 804 (Fla. 14. 4th DCA 1987). 613 (Fla. No matter how much the mortgage is acclaimed as the basis of the ag reement. Star. Reyes. Hupert. 313 So . 673. Talcott.ge instrument clearly indicated that the payee of the mortgage loan was not the Plaintiff. The Promissory Note is required in order to foreclose a mortgage loan. the 16. 2d 1124 (Fla. The court may n ot enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected again st loss that might occur by reason of a claim by another person to enforce the instrument. 734 So.).. 2d 910 (Fla. and it also failed to provide evidence of just how it allegedly came to own and hold the lost promissory note. 3d DCA 1997)(reversing the entry of Summary Judgment where depositions had not been completed and a request for the production of documents was outstanding . (b)The loss of possession was not the result of a transfer by the person or a lawful seizure. (2)A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person s right to enforce the instrument. Restatement (Third
. 2d 40. Thus.3091 as it failed t o prove the terms of the instrument and it failed to prove its right to enforce the instrument. Kemper v.. Spradley v. its whereabouts cannot be determined. 1975). 3d DCA 1973). 422 So. 510 So. 639 (Fla. Mutual Dev. Every mortgage is composed of two documents – the note and the mortgage instrument. 1144 (Fla. Margiewicz v. 1st DCA 1993). s. 616 ( Fla. or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. and it is reversible error to enter summary judgment when discovery is in progress and th e deposition of a party is pending. Sing er v. C. 191 So. 1966). 2d 1142. It is axiomatic that Summary Judgment may not be granted unless the movi ng party is able to show that no genuine issues of material fact exist.
12 3 So. 659 (Fla. Inc. Miami Mtge.H. trustee of an express trust. 2 DCA 1975) An assignment can only take place where the note is transferred by the mortgagee-assignor to the assignee. even though the mortgage inst rument has not been assigned either orally or in writing. 1930 ). 1941) The note is evidence of the primary mortgage obligations or the debt. 5 DCA 1989). 3 DCA 1978) D. the assignment of the mortgage instrument without t he note is an ineffective assignment. Evins v. Case v. or other instruments. shall be incorporate d in or attached to the pleading. 741 (1856). v. Florida Rules of C ivil Procedure section 1. The pleadings shall contain no unnecessary recitals of deed s.. Sobel v. as evidenced by the mortgage instrument.4 (1997). Brown v. is only a mere in cident to the debt.C. Hartman. As the Promissory Note is evidence o f the primary mortgage obligation. The re is an old maxim “the mortgage follows the note”. 150 S o. Therefore. So. Co. 20. 1920). 323 (Fla. 172 So. Co. Per sons having a united interest may be joined on the same side as Plaintiffs or Defendants.210(a) provides: (a) Parties Generally. Smith. or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. Mutual Dev. Premier Fin. Second Nat’ l Bank v. Scott v. Any person may at any time be made a party if that person’s pr esence is necessary or proper to a complete determination of the cause. 57 So. bills of exchange. 4 DCA 1973). 678 (Fla. guardian. 2d 1256 (Fla. or documents up on which action may be brought or defense made. 200 So. 2d 889 (Fla. contracts accounts. 274 So. Florida Rules of Civil Procedure section 1. s Plaintiff s Standing Was At Issue By Defendants Pending Motion to Dismis
19. 1912).. The assignment of the note carries with it the mortgage and its rights. Medeiros. 58 So. 313 So. Briggs. 1 DCA 1975). 624 (Fla. 358 So. contracts. & Guar. Because the assignment of the note is an imperative act as to the transferri ng of the mortgagee’s right. Goldberg. All bonds. 724 So. 127 So. Collins v.) Property (Mortgages) section 5. 1912). 30 (Fla. Vance v.130 states:
(a) Instruments Attached. No papers shall be unnecessarily annexed a s exhibits. but a personal representative. notes. Mellor v. Keel. The note is the instrument of concern in all assignment situations. Gainsville Nat’l B ank. 85 So. 658 So.01 (1997) It is security for the in debtedness and the mortgagee may sue on the note rather than the mortgage. Century Group Inc. 2d 661 (Fla. 2d 59 (Fla. v. Colonial Mtge. and anyone who refuses to join may for such reason be made a De fendant. Amacher v. M. administrator. 6 Fla. Young v. 833 (Fla. Services East L.. GMT Property. Snell. 347 So. Restat ement (Third) Property (Mortgages) section 1. The mortgage is only a mere incident to the note. 1 DC A 1965). Taylor. 2d 1162 (Fla. Inc. P. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as Plaintiffs and any person may be made a Defendant who has or claims an interest adverse to the Plaintiff. Thomas v. Every action may be prosecuted in the name of the real party in interest . Fields. The mortgage. Victory. v. 1929). 917 (Fla. Drawdy. American Nat’l Bank. 2d 736 (Fla. the mortgage instrument is of lesser significanc e. 1933). 2d 21 (Fla. 4 DCA 1977) 18. Realty Co. a party with whom or in whose name a contract has been mad e for the benefit of another. Defendants properly challenged Plaintiff s standing. 553 So. 364 So. 2 DCA 1995). 2d 613 (Fla. 2 DCA 1999) 17. documents. or a copy thereof or a c opy of the portions thereof material to the pleadings. Tayton v. Grie r v.
. 2d 77 (Fla.
had not demonstrated an ability to indemnify the Defendants . IV CONCLUSION 25. 21. v. Brody. Any exhibit attached to a pleading shall be considered a part thereof fo r all purposes. Kumar Corp. 4th DCA 1983 ). Your Construction Center. 316 So. In re: Shelter Development Group. 441 So. had not provided an affidavit of th e terms of the Note. 2000) . in another pleading. 23. Plaintiff is not entitled to maintain an action in which it seeks to for eclose on a note which Plaintiff does not own. Defendants request this court grant his motion for vacating j udgment and for all other relief to which these defendants prove themselves enti tled. 2d 596 (Fla. Inc. or the right to possession of the mortgage and the obligation secured by it. Your Construction Center. citing Downing v. Fladell v. Clearly. v Nopal Lines. Corcoran v. 2d 689 (Fla. When exhibits are inconsistent with Plaintiff’s allegations of material fact as to who the real party in interest is. may not foreclose t he mortgage). al. 4th DCA 1975). Greenwald v. 2d 1178.2d 1240 (Fla. Costa Development Corp. Costa Bella Development Corp. 772 So.210(a) provides the basis for standing to bring an action. v. 187 (Fla. Summary Judgment was granted while Defendants discovery and Mot ion to Dismiss were pending. Jur. 424 So. Florida Rules of Civil Procedure section 1. Inc... 4th DCA 1975). The discovery was necessary to establish the stand ing of the Plaintiff. the power to enforce the claim. 1985) [It is axiomatic that a suit cannot be prosecuted to fo reclose a mortgage which secures the payment of a promissory note. Ltd. Palm Beach County Canvassing Board. D. Inc. 462 So.
. Plaintiff has not established that it is the real party in interest.210(a) of the Florida Rules o f Civil Procedure and applicable Florida law are met. Triple D Properties. 2d 1114 (Fl a. 2d 185. S. but the Plaintiff meets none of these criteria. In Florida. Standing requires that the party prosecuting the action have a sufficien t stake in the outcome and that the party bringing the claim be recognized in th e law as being a real party in interest entitled to bring the claim. 2d 596 (Fla. Fla. First National Bank of Lake City. 22. 3rd DCA 1983). et. 81 So. The discovery and the motion to dismiss were both quite appro priate given the fact that the Plaintiff was foreclosing on a mortgage loan when Plaintiff did not have the Promissory Note. This entitl ement to prosecute a claim in Florida courts rests exclusively in those persons granted by substantive law. 316 So.(b) Part for All Purposes. 4th DCA 1977). and had not shown how it had acquired the right to enforce the Promissory Note . possession.2d 486 (Fla. Mortgages and Deeds of Trust ‘240 (One who does not have the ownership. is in privity of contract with the true holder of the note or is shown to be author ized to bring this action. 347 So. or in any motion. which standing was challenged by the Defendants in their M otion to Dismiss. No Florida case holds that a separate entity can maintain suit on a note payable t o another entity unless the requirements of Rule 1. 3d DCA 1985).. 1955)].R. Inc. 24.. unless the Pl aintiff actually holds the original note. 588 (Bankr. See also 37 Fla. Statements in a pleading may be adopted by reference in a diff erent part of the same pleading. v. Gross . 50 B. such allegations cancel each other out. Gross. WHEREFORE. (Fla. the prose cution of a foreclosure action is by the owner and holder of the mortgage and th e note.
Box 838 Mims. Box 11438. Mail this 23rd day of November. ________________ _____ George Gingo. Fort Lauderdale.O. 2009 ________________ ______ George Gingo. to Robert Smith. November 23.S. 2009. Florida 33339-1438. FB N 879533 P. FL 32754 (321) 264-9624 O ffice (321) 383-1105 F ax CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnishe d by U.Respectfully Sub mitted. FB N 879533