UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERALE DIVISION
NELSON LUACES,

)
)
PLAINTIFF/PETITIONER,
)
v.
)
)
DEUTSCHE BANK NATIONAL TRUST
)
COMPANY, AS TRUSTEE FOR
)
SOUNDVIEW HOME LOAN TRUST
)
2005-OPT 4, ASSET-BACKED
)
CERTIFICATES, SERIES 2005-OPT 4 and
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC.
)
MERSCORP HOLDINGS, INC. and JOHN
)
DOES 1-500,
)
)
DEFENDANTS/RESPONDENTS
_______________________________________)

CIVIL ACTION FILE

NO.:

VERIFIED PETITION FOR DECLARATORY RELIEF

TO QUIET TITLE PURSUANT TO FLORIDA STATUTES
CHAPTER 65; AND MOTION FOR EMERGENCY TEMPORARY
RESTRAINING ORDER AND MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF
COME NOW the Plaintiff/Petitioner NELSON LUACES, Pro Se and
Defendants DEUTSCHE BANK NATIONAL TRUST COMPANY, AS
TRUSTEE FOR SOUNDVIEW HOME LOAN TRUST 2005-OPT 4
ASSET-BACKED

CERTIFICATES,
1

SERIES

2005-OPT

and

MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS, INC. for

Declaratory Relief to Quiet Title to remove clouds on Plaintiff/Petitioners
Title, and as grounds therefore would state as follows:
IDENTITY OF PARTIES AND LAND
1.
Plaintiff/Petitioner is a citizen of the State of Florida, County of
Broward. Plaintiff/Petitioners Title derives his title from the purchase of the
property by Global Services and Consulting LLC and a subsequent
Quitclaim Deed from Global Services and Consulting LLC to Nelson
Luaces. Attached hereto and made a part hereof as Plaintiff/Petitioners
composite Exhibit A is a certified copy of the Certifcate of Sale and
Certificate of Title issued to Global Services and Consulting LLC. Attached
hereto and made a part hereof as Plaintiff/Petitioners Exhibit B is a
certified copy of the Quitclaim Deed from Global Services and Consulting
LLC to Nelson Luaces, Plaintiff/Petitioner herein.
2.
The subject property is legally described as:
CONDOMINIUM UNIT NO. 226, BUILDING 38, WESTVIEW
CONDOMINIUM NO. 9, A CONDOMINIUM, ACCORDING TO
THE DECLARATION THEREOF, AS RECORDED IN OFFICAL
RECORD BOOK 10812, PAGE 842, OF THE PUBLIC RECORDS
2

OF BROWARD COUNTY, FLORIDA

and also known as 1120 NW 97th Avenue Unit 226 Pembroke Pines, Florida
33024. Hereinafter, this address and legal description as well as all
improvements thereon shall be known and referred to as Plaintiff/
Petitioners Property.
3.
Defendant/Respondent Deutsche Bank National Trust Company, as
Trustee for Soundview Home Loan Trust 2005-OPT 4, Asset-Backed
Certificates Series 2005-OPT 4 is a securitized Trust, also known as a SPV,
Special Purpose Vehicle and a REMIC, Real Estate Investment Conduit, and
is a citizen of the State of California with an office located at 1761 E. Saint
Andrew Place, Santa Ana, California 92705. Defendant/Respondent
Deutsche Bank National Trust Company does business in Broward County,
Florida.
4.
Defendant/Respondent, Mortgage Electronic Registration Systems,
Inc. (MERS), as nominee for , "MERS" maintains an electronic registry
for mortgages. MERS is a separate corporation that is acting solely as a
nominee for Lender and Lender's successors and assigns. MERS is the
mortgagee under the Security Instrument. MERS is organized and existing

under the laws of Delaware, and is a citizen of Delaware and has an address
located at 1901 E. Voorhees Street, Suite C, Danville, IL 61834.
5.
Defendant JOHN DOES 1-500 are the unknown certificate holders
who purchased the asset-backed certificates as unregistered securities in the
Soundview Home Loan Trust Series OPT-4. The names and identities of
these Defendants/Respondents are unknown to Plaintiff/Petitioner.
JURISDICTION AND VENUE
6.
This Court has jurisdiction over this matter pursuant to 28 U.S.C.
1332 for reasons set forth below.
7.
Plaintiff/Petitioners property is located in Broward County, Florida,
and the territorial boundaries of this District Court embrace this County.
Petitioners are citizens of the State of Florida.
8.
Defendants/Respondents are citizens of the States of California and
Delaware.

There

is

complete

diversity

Plaintiff/Petitioner and Defendants/Respondents.

9.
4

of

citizenship

between

Petitioners seek to quiet title to Petitioners property. The amount in

controversy exceeds $75,000.00.
10.
This is an in rem proceeding pursuant to Florida Statutes Chapter 65,
directed against Petitioners property situated within the boundaries of
Broward County, Florida.

By virtue of a Note and Mortgage dated

September 17, 2005 and filed for record October 7, 2005, recorded in OR
Book 40673 Pages 558-568 of the Public Records of Broward County,
Florida, Patricia A. Brydges and Marcelene Fox purchased the subject
property and gave a Note and Mortgage in favor of H&R Block Mortgage
Corporation, a Massachusetts Corporation. Allegedly affixed to the Note
were two (2) allonges, one to Option One Mortgage Corporation, a
California Corporation, and another to signed in blank by Option One
Mortgage Corporation. Attached hereto and made a part hereof as
Plaintiff/Petitioners Exhibit C is a copy of the subject Note, allonges and
Mortgage.

Neither

the

Note

nor

either

of

the

allonges

list

Defendant/Respondent Deutsche Bank National Trust as a party and the

Mortgage does not list Defendant/Respondent Deutsche Bank National Trust
as

party.

Plaintiff/Petitioner

challenges

the

legal

standing

of

Defendants/Respondents to foreclose on the subject property or to sell the

property at a foreclosure sale.
11.
Notwithstanding that Deutsche Bank was not listed as a part on either
the Note, allonges or Mortgage and had no legal standing to collect the note
or foreclose the mortgage, Defendant/Respondent Deutsche Bank initiated a
foreclosure against the subject property and obtained a Final Judgment of
Foreclosure on or about December 5, 2013. Attached hereto and made a part
hereof is a certified copy of the Final Judgment of Foreclosure as
Plaintiff/Petitioners Exhibit D.
12.
The property was subsequently sold pursuant to a foreclosure sale by
Westview Condo Association No. Nine, Inc. to Global Services &
Consulting, LLC on February 22, 2013. See Plaintiff/Petitioners composite
Exhibit A.

A certificate of Title was issued to Global Services &

Consulting, LLC on March 5, 2013.

See Plaintiff/Petitioners composite

Exhibit A. Subsequently, the property was transferred by Quitclaim Deed

from

the

purchaser,

Global

Services

&

Consulting,

LLC

Plaintiff/Petitioner Nelson Luaces. See Plaintiff/Petitioners Exhibit B.

13.
6

to

Rightful title in and to the subject property is in Plaintiff/Petitioner

Nelson Luaces. Although ordinarily Plaintiff/Petitioner would take the
property subject to any valid first mortgage, as Defendants/Respondents
have and had no legal standing to collect the note or to foreclose the
mortgage, any such foreclosure was and is wrongful.
14.
Notwithstanding Plaintiff/Petitioner Nelson Luaces purchase of the
subject property, Defendant/Respondent Deutsche Bank National Trust
Company, as Trustee for Soundview Home Loan Trust 2005-OPT4 AssetBacked Certificates threatens to sell Plaintiff/Petitioners property at a
foreclosure sale presently scheduled for February 19, 2014, although said
Defendant/Respondent has never produced any valid or recorded
assignment, or other transfer document or other proof that it owns and holds
the mortgage on the subject property.
15.
Plaintiff/Petitioner challenges the legal standing of Defendants/
Respondents to collect the subject note or foreclose the subject mortgage.
Standing is jurisdictional, is not waived by Plaintiff/Petitioner, and can be
raised at any time. Plaintiff/Petitioner moves for a Preliminary
Injunction/Temporary Restraining Order to restrain and enjoin the sale of the
7

property by Defendants/Respondents on February 19, 2014 pending

resolution of Plaintiff/Petitioners Quiet Title claim, as more fully set forth
in Plaintiff/Petitioners motion set forth herein below.
FIRST QUIET TITLE CLAIM
16.
Plaintiff/Petitioner re-alleges and re-avers the allegations contained in
paragraphs 1-15 and incorporate same by reference herein.
17.
Plaintiff/Petitioner challenges the interest held by Respondent and
Plaintiff/Petitioner maintains that the interest of these parties lacks
authenticity in essence.
18.
The true beneficial owners of Plaintiff/Petitioners note and mortgage
are investors, each holding a proportional and typically miniscule interest in
Petitioners Note and Mortgage. The only parties with something to gain or
lose from the outcome of Petitioners loan are those investors. Investors are
exclusively entitled to Petitioners payments. Under the terms in the Note,
these investors are the Note Holder, and they alone are entitled to accelerate
payments and initiate foreclosure.

19.
Investors, John Does 1-500, are the real parties in interest.
20.
Defendants/Respondents are wrongfully attempting to assert authority
reserved exclusively to the beneficial owner. Defendants/Respondents own
no

interest

whatsoever

in

Plaintiff/Petitioners

lien

or

note.

Defendants/Respondents do not represent the Investors. Defendants/

Respondents are not entitled to payments. Defendants/Respondents have
nothing to benefit or lose.
21
To pursue foreclosure, Defendants/Respondents must follow the law
dictated by their foundational documents. No party can stand above the law,
not even these Defendants/Respondents.
22.
Accordingly, named Defendants/Respondents acquired nothing from
any recorded assignment. These Defendants/Respondents do not hold the
full beneficial interest or any beneficial interest in Plaintiff/Petitioners
Property. The parties that do hold this full beneficial interest are investors of
Soundview Home Loan Trust Series 2005-OPT 4. These parties are not
disclosed. In this quiet title action, Petitioners seek Declaratory Relief in the
9

form of a ruling stipulating that these Investors are the true beneficial
owners of Petitioners title and, before any foreclosure action can be
brought, these Investors must be joined as indispensable parties and their
interests must be recorded at the Broward County Recorders Office, like
every other ownership interest in real property.
SECOND QUIET TITLE CLAIM
23.
Plaintiff/Petitioner challenge the interest held by the named
Respondents

and

the

validity

of

any

assignments

to

the

Defendants/Respondents because the formalities of the Statute of Frauds and

U.C.C. 3-203 were not satisfied.
24.
The exercise of these powers cannot elude the net cast by the Statute
of Frauds. No interest in land can pass without satisfying its formalities.

10

25.
It is an irrefutable fact that these Defendants/Respondents never
signed a writing disposing of its interest in the subject property. The
ownership interest in land is still parked with the last recorded beneficial
owner and unless and until the Statute of Frauds is satisfied, foreclosure
cannot be pursued.
26.
Any assignments are invalid for two reasons. For failing to
accommodate formalities in the Statute of Frauds, these transfers are ruled
invalid because the deterrent attached to the Statute of Frauds declares all
such transfers to be unenforceable. It also fails to transfer the full beneficial
interest for a bearer instrument, thereby violating U.C.C. 3-203(b) and (d).
THIRD QUIET TITLE CLAIM
27.
A cloud on a title has been described as an outstanding claim which
appears to be valid on its face, but can be shown by extrinsic proof to be
invalid.
28.

11

On the date of any assignment, Defendants/Respondents filed said

assignments maintaining that assignee held a lien as beneficiary of the
subject security instrument.
29.
Extrinsic evidence retrieved from the U.S. Securities and Exchange
Commissions search engine reveals transfers of beneficial ownership
affecting Plaintiff/Petitioners Property, all occurring prior to the dates of the
subject Assignments of Mortgage (Security Deed). This extrinsic evidence
can all be found under the corporate filing of Soundview Home Loan Trust
2004-OPT 4. None of these transfers of beneficial ownership were recorded.
All of them qualified as recordable transactions.
30.
All of this extrinsic evidence qualifies as a fact plausible on its face
for invalidating any assignments. Each and every one of these facts also
supports a cognizable legal theory for invalidating any assignment. These
prior beneficial transfers are published by the federal government as official
documents and their integrity and legitimacy cannot be reasonable disputed.
31.

12

The sole support for any assignment is a formulaic term in the

Mortgage. Plaintiff/Petitioners extrinsic evidence is worthy of belief and it
supports a cognizable legal theory for repudiating this formulaic term.

13

FOURTH QUIET TITLE CLAIM

32.
Through legal trickery, as described throughout this Petition,
Defendants/Respondents have attempted to maneuver a ministerial interest
into the appearance of a full beneficial interest. To reach this end, it has
engaged the fallacy that it is acting on behalf of the Lenders successor in
interest.
33.
Defendants/Respondents are actually acting upon instructions from
the mortgage servicer. There is no functioning lender. Through legal
trickery, Respondents are placing themselves in a position to exercise legal
leverage that they have no authority whatsoever to exercise.
34.
Florida Statutes Chapter 65 provides that clouds against Petitioners
title can be removed through Quieting Title to the Petitioners Property.
35.
Plaintiff/Petitioner holds an equitable interest in Petitioners Property
by virtue of a Certificate of Sale, Certificate of Title and Quitclaim Deed.

14

36.
The documents filed and recorded in the public records of Broward
County, Florida, by the named Defendants/Respondents constitute a cloud
upon Plaintiff/Petitioners Property.
37.
For purposes of the Statute, the date of filing of this Petition shall
also serve as the date in which a determination is sought.
38.
Plaintiff/Petitioner brings this Quiet Title action against these
Defendants/Respondents

and

require

that

Defendants/Respondents

demonstrate how any transfer of the contractual relationship with the

borrower, which includes the borrower approved interest in land, can take
place without fulfilling Statute of Frauds formalities prior to the dates of the
Assignments.
39.
Plaintiff/Petitioner

brings

this

action

against

these

Defendants/Respondents and asks these Respondents to demonstrate how

each of them could be in a position to hold and convey the full beneficial
interest in the subject Mortgage, security instrument and Note when it had
no ownership interest in the note, the Statute of Frauds had been ignored,
15

and each Defendant/Respondent could not prove the full beneficial transfer
of ownership for this bearer instrument from its seller, as U.C.C. 2-203
requires.
40.
Plaintiff/Petitioner asks each named Defendant/Respondent to prove
that it is entitled to payments for its own use. Under terms in the Note, the
only party with the right to enforce this obligation is the party entitled to
payments for their own use.
41.
Plaintiff/Petitioner concedes that a mortgage loan was signed and
Plaintiff/Petitioner would be indebted to the rightful owner of this lien.
Plaintiff/Petitioner contends that the true owner is known but not identified
and their names are not discoverable. Plaintiff/Petitioner asks this Court to
use its Declaratory Judgment authority to expose those imposters by
removing these clouds and false claims of ownership to the note and
mortgage appearing in this chain of title at the Broward County Recorders
Office by ordering the following relief.
Prayer for Relief
Pursuant Florida Statutes Chapter 65, Plaintiff/Petitioner respectfully
prays this Court to issue a Declaratory Judgment finding that the interest of
16

these Defendants/Respondents in the subject Note and Mortgage was void

and of no legal force.
Pursuant to Florida Statutes Chapter 65, Petitioner asks this Court to
declare that each and every one of these Defendants/Respondents should be
disqualified from enforcing the subject Note and Mortgage and to order
Defendants/Respondents to summon the true owners consisting of holders
of mortgage backed securities owning at least a majority interest in the
subject Note and Mortgage.
That this Courts Declaratory Judgment should further address each
and every one of the clouds upon Plaintiff/Petitioners Property and order
such legal and equitable relief as is necessary for removing these clouds.
Plaintiff/Petitioner further requests reimbursement of all expenses
paid in connection with this legal proceeding, including court costs and
reasonable attorneys fees.
Plaintiff/Petitioner further request any other relief in the form of
specific performance and compensation warranted by evidence in the record
and that the Court grant such other and further relief as the Court deems
equitable, appropriate and just.
VERIFIED
EMERGENCY MOTION FOR TEMPORARY INJUNCTIVE RELIEF
AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
17

Plaintiff/Petitioner Nelson Luaces,Pro Se, pursuant to Federal Rule of

Civil Procedure 65, move this Honorable Court for the entry of a Temporary
Restraining Order to enjoin and restrain all named Defendant/Respondents
from selling Petitioners property at a non-judicial foreclosure sale of the
subject property, Petitioners home, and as grounds therefore
would state as follows:
1.
Plaintiff/Petitioner have filed an action to Quiet Title to the property
located at 1120 NW 97th Avenue Unit 226, Pembroke Pines, Florida 33024.

Hereinafter, this address and legal description as well as all

improvements
thereon shall be known and referred to as Petitioners Property. Said action
to Quiet Title to Petitioners property is presently pending before this Court.
2.
In their Quiet Title action Petitioners allege that named Respondents
have no legal interest in and to their property and have no standing to
foreclose or sell the subject property at a non-judicial public auction sale of
the property presently scheduled for the first Tuesday in February, 2014,
being February 4, 2014.
3.
18

It is within this Courts wide discretion to grant a request for a

temporary restraining order and/or a preliminary injunction. See Grand
River Ent. Six Nations, Ltd. v. Pryor, 481 F.3d 60 (2d Cir. 2007). Generally,
in order to warrant a courts intervention in the form of injunctive relief,
[t]he party seeking the injunction must demonstrate (1) irreparable harm
should the injunction not be granted, and (2) either (a) a likelihood of
success on the merits, or (b) sufficiently serious questions going to the
merits and a balance of hardships tipping decidedly toward the party seeking
injunctive relief. Resolution Trust Corp. v. Elman, 949 F.2d 624,626 (2d
Cir. 1991); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72
(2d Cir. 1979); Citibank v. Citytrust, 756 F.2d 273 (2d Cir. 1985); Virgin
Enterprises, Ltd. v. Nawab, 335 F.3d 141 (2d Cir. 2003).
4.
Plaintiff/Petitioner will suffer irreparable injury, the loss of his home
to an illegal judicial sale of their property unless the Court grants his
Emergency Motion for Temporary Restraining Order.
Defendants/Respondents seek to illegally foreclose and sell
Plaintiff/Petitioners property through a judicial auction sale without any
legal justification in that Defendants/Respondents have and had no legal
standing to collect the subject note or foreclose the subject mortgage.
19

5.
Plaintiff/Petitioner has a likelihood of success on the merits of their
Quiet Title Complaint in that named Defendants/Respondents have no legal
interest in and to the subject property, which fact shall be established
through Plaintiff/Petitioners Quiet Title action.
6.
Plaintiff/Petitioner presents sufficiently serious questions going to the
merits of their claim which outweigh and tip the balance of hardship in favor
of Plaintiff/Petitioner.
7.
The granting of Petitioners Temporary Restraining Order is in the
public interest to prevent Respondents and others from foreclosing on the
homes of owners by non-judicial process without having the right to
foreclose and sell the property in violation of the laws of the State of Florida
and of the United States. Plaintiff/Petitioners is entitled to emergency ex
parte temporary injunctive relief by both Florida state law and the law of the
United States.
8.
A motion for emergency temporary declaratory and injunctive relief is
sought pursuant to the Florida Rules of Civil Procedure and on an
20

emergency basis without notice.

9.
Florida lawprovides that equity, by writ of injunction, may restrain
any act of a private individual or corporation which is illegal or contrary to
equity and good conscience and for which no adequate remedy is provided
at law.
10.
Florida law provides that writs of injunction may be issued by
courts to enjoin sales by sheriffs, at any time before a sale takes place, in any
proper case made by application for injunction.
11.
Plaintiff/Petitioner owns and occupies certain real property in the city
of Pembroke Pines, Broward County, Florida.
12.

Plaintiff/Petitioner has no adequate remedy at law to redress the harm

complained of, and the sale of the Plaintiffs/Petitioners property, under the
circumstances set forth herein, is contrary to equity and good conscience.
13.
Florida law provides that a temporary restraining order may be
granted without oral or written notice to the adverse party if it clearly
21

appears from the specific facts shown by verified complaint that immediate
and irreparable injury, loss, or damage will result to the applicant before the
adverse party or his attorney can be heard in opposition, and that the
applicant or their attorney certifies in writing, the efforts, if any, which have
been made to give the notice and the reasons supporting the partys claim
that notice should not be required.
14.
The specific facts set forth in this Verified Motion demonstrate that
unless a temporary injunction against the foreclosure sale set for February
19, 2014 is granted, that Plaintiff/Petitioner will suffer the irreparable injury,
loss and damage of the loss of his home and eviction therefrom, and loss of
all of his equity therein.
15.
Under the circumstances where the foreclosure sale is set for less than
five (5) calendar days from the date of the filing of this Verified Motion, the
irreparable loss to the Plaintiff/Petitioner will result before the
Defendants/Respondents may be heard in opposition to the relief requested
herein if the emergency relief requested herein is not granted immediately.

22

16.
Certification is set forth following the Verification of this Motion by
Petitioners.
17.
Under the circumstances of this case, where there is no harm to
Defendants/Respondents with the granting of the requested relief, no bond
should be required as a prerequisite to the granting of the relief requested
herein as there are no costs or other damages which could be contemplated
on the part of Defendant with the granting of the requested relief.
18.
Petitioners request that any requirement of a bond be waived in that
Petitioners are unable to obtain or afford a bond of any kind or type.
19.
Courts have long recognized that [t]o satisfy the irreparable harm
requirement, [p]laintiffs must demonstrate that absent a preliminary
injunction they will suffer an injury that is neither remote nor speculative,
but actual and imminent . . . . See Grand River, 481 F.3d at 66 (internal
citations omitted). Petitioners easily meet this standard.
20.
The threatened loss of Plaintiff/Petitioners home constitutes
23

irreparable injury.
WHEREFORE, Petitioners respectfully request that this honorable
Court immediately take jurisdiction of this matter and enter an Order
granting temporary injunctive relief expressly precluding and cancelling the
foreclosure sale presently scheduled for February 19, 2014 for the reasons
set forth herein, and that the Court grant such other and further relief as the
Court deems equitable, appropriate and just.
Respectfully submitted this ____day of February, 2014.
__________________________
Nelson Luaces Plaintiff Pro Se
1120 NW 97th Avenue, Unit 226
Pembroke Pines, FL 33024
Phone: ___________________

VERIFICATION

Plaintiff/Petitioner Nelson Luaces hereby verifies, under penalty of perjury,

verifies that he has read the foregoing Petition for Declaratory Relief to
Quiet Title and Motion for Temporary Restraining Order and that the facts
contained therein are true and correct.
__________________________

Nelson Luaces
1120 NW 97 Avenue, Unit 226
Pembroke Pines, FL 33024
Phone: ___________________
th

24

25