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-CA-002265-XXXX-MA Div. CV-D HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES AE 2005-HE5, Plaintiff, vs. MARILYN G. HARLEY, et al., Defendant. _____________________________________/ DEFENDANT’S MOTION TO DISMISS ACTION FOR FRAUD ON THE COURT (Supplement to Motion to Dismiss First Amended Complaint) Defendant requests the court dismiss this action with prejudice pursuant to Rules 1.100(b), 1.140(b)(1)(6) and (h)(2) and 1.210(a) of the Florida Rules of Civil Procedure and states: 1. The January 30, 2006 assignment of mortgage that is attached to the plaintiff’s amended complaint states that the assignment is of the mortgage and the promissory note that are the subject of this foreclosure action, although the plaintiff has failed to attach a copy of the promissory note to its amended complaint or to otherwise identify how Mortgage Electronic Registration Systems, Inc. (“MERS”) had any right or legal ability to transfer any interest in the subject promissory note. 2. Additionally, the January 30, 2006 assignment attached to the plaintiff’s amended complaint purportedly assigns the mortgage and the promissory note from MERS in its corporate capacity as owner and not “as nominee” which is how MERS is named in the mortgage also attached to the plaintiff’s amended complaint. The plaintiff alleges in its amended complaint that the plaintiff owns and holds the subject note and mortgage, but the purported assignment of the mortgage and note from “Mortgage Electronic Registration Systems, Inc. is in “c/o Wells Fargo Bank, N.A.” while the actual mortgage attached to the complaint identifies the owner of the mortgage as “Trimerica Mortgage Corporation dba Avaris Capital”, with MERS as a nominee for said lender.
3. a securitized trust. 5.. From the plaintiff’s own filings in this foreclosure action. In re: Shelter Development Group. The defendant seeks an order dismissing this foreclosure action filed by a 2 . 1985) 6.Fla. 8. never had an interest in the mortgage or the promissory note and never had standing to bring this action.No where does MERS c/o Wells Fargo Bank. has perpetrated a fraud upon the Court in this action as set out in the defendant’s first motion to dismiss which is incorporated herein and included within this motion. including the amended complaint. it is established that a person other than the plaintiff. 11. that the “plaintiff is not presently in possession of the original note and mortgage”. The plaintiff. Unlike statutory prerequisites to filing a lawsuit. standing is having a sufficient interest in the outcome of litigation which will warrant a court’s entertaining it.S. 4. appear in the mortgage and therefore the mortgage contradicts the assignment and the plaintiff’s allegations to this court. The plaintiff further has failed to establish in any of its papers or filings that it owned or held the mortgage or the promissory note at the commencement of this action.A. N. In this case the court is without jurisdiction because the Plaintiff. 588 (Bankr. The plaintiff did not own or hold the subject promissory note at the time the plaintiff filed this foreclosure and the plaintiff was fully aware of this lack of this lack of ownership and its lack of standing at the time of the commencement of this action. The plaintiff also fails to attach a copy of the promissory note to its amended complaint. At the same time. Inc. a securitized trust. 50 B. The plaintiff did not own or hold the subject mortgage at the time the plaintiff filed this foreclosure and the plaintiff was fully aware of this lack of this lack of ownership and its lack of standing at the time of the commencement of this action. a securitized trust. the plaintiff claims and alleges to this court that the “Plaintiff owns and holds the Note and Mortgage”. 10. 9. in its amended complaint. is the true owner of the claim sued upon and that the plaintiff is not and never was the real party in interest and is not and cannot be shown to be the proper authorized party to bring this foreclosure action.R. 12.D. 7.
17. must have been known to the party interposing it to be untrue. “A plea is considered ‘sham’ when it is palpably or inherently false. 16. a lack of subject matter jurisdiction. 18. establishes in its amended complaint that it was fully aware that its claims to have standing to pursue this foreclosure action were untrue and an impossibility at the time the plaintiff made such allegations to this court. The plaintiff. 1934) 20. 19. a securitized trust. 15. Rhea v. 193 (Fla. held and possessed the subject mortgage and promissory note is readily apparent from a cursory review of the documents attached to the amended complaint as explained hereinabove in paragraph 1 and 2 of this motion. 193 (Fla. The assignment of the mortgage and the note from MERS that purports to transfer the mortgage and the note is from MERS in its sole capacity as an independent corporation and fails to identify that MERS is transferring the interest in the subject mortgage loan from any other corporation or entity other than MERS.” Rhea v. 157 So. Halkney. The plaintiff is not a proper party to file a lawsuit to collect on the mortgage and the promissory note in this case where the plaintiff has no legal or beneficial interest to protect. failure to state a cause of action for foreclosure and for fraud on the court. The falseness of the plaintiff’s allegations that it owned.securitized trust based on a lack of standing. Halkney. 13. 14. The plaintiff is not the ‘owner’ of the subject mortgage or the promissory note as the plaintiff alleges to this court in its amended complaint. The plaintiff’s allegations that it ‘owned’ ‘held’ and ‘possessed’ the mortgage and the promissory note that are the contracts that are the subject of this foreclosure action are false and were made in bad faith as the plaintiff knew said allegations were false. 190. 190. and from the plain or conceded facts in the case. 1934). 157 So. The defendant seeks a finding that the plaintiff’s assertions that it was the owner of the mortgage and the promissory note at issue were false and that the plaintiff was fully aware of such false allegations at the time the plaintiff filed this foreclosure action. 3 .
trustee of an express trust.2d 794 (Fla. R. to dismiss an action when a plaintiff has perpetrated a fraud on the court. in pertinent part: Every action may be prosecuted in the name of the real party in interest. Andrews v. 4 . but a personal representative. Co. 2d 572. guardian. 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. A party guilty of fraud or misconduct in the prosecution of a civil proceeding should not be permitted to continue to employ the judiciary to achieve its ends. 2d 658 (Fla. collusion. 736 So. 3rd DCA 1999). Distefano v. Martinson. Andrews v.2d 1267 (Fla. Reif Development.210(a) of the Florida Rules of Civil Procedure provides. Inc. State Farm Mutual Automobile Ins. Piunno v. or other similar wrongdoing. Arzuman v. Pearson. administrator. 736 So. Metropolitan Dade County v. It is appropriate for the trial court to dismiss an action based on fraud. within the exercise of sound judicial discretion. The integrity of the civil litigation process depends on the truthful disclosure of facts. 3rd DCA 1999) 25. F. Palmas De Majorca Condominium.. where there is a blatant showing of fraud. 846 So. 340 So. Blackman.. Concrete Constr. The plaintiff’s efforts to misrepresent ownership of the note is a mere pretense set up in bad faith and without color of fact.2d 950 (Fla.2d 1066 Fla. 5th DCA 2005) 22. 5th DCA 2005) 24. 898 So.2d 1222 (Fla.. 4th DCA 2005) 23. 26. Blackman. permeates the entire proceeding and subverts the integrity of the action. The plaintiff’s lack of ownership of the mortgage and the promissory note in this case goes to the heart of its claim of standing. 4th DCA 1999). Inc.. 430 (1939). 186 So. 4th DCA 1976) 21. a party with whom or in whose name a contract has been made for the benefit of another. Wachovia. Reif Development. Rule 1. 4th DCA 2003). pretense.. 843 So.O'Berry v. Martinsen. Co. Furst v. v. Metropolitan Dade County v. Wachovia Mortg. 898 So. 744 So. 1st DCA 2003) 27. and Furst v. supra. Palmas De Majorca Condo.. v. 904 So.2d 794 (Fla. A trial court has the inherent authority. 574 (Fla.2d 1066 (Fla. supra. Saud. Inc.
v.1352 (Fla. Recent decisions of many courts around the country from state courts. Corcoran v. 2d 1178. Inc. the power to enforce the claim. federal district courts and bankruptcy courts have caused actions such as the present action to be dismissed for failure to state a claim and for failure to assert an injury in fact.. Brody. 239 (Fla. 4th DCA 1977) 30. is required. “a formal evidentiary hearing on this motion to dismiss.The plaintiff meets none of these standing and pleading criteria. as well as permissible discovery prior to the hearing. v. 1993) 31.2d 235. will be presented to and filed with the court and are incorporated herein. et al.2d 1350. No Florida case holds that a separate entity can maintain suit on a note payable to another entity unless the requirements of Rule 1. The plaintiff cannot in good faith deny knowledge of the judicial findings of these many courts around the country which relate directly to the underlying standing problem that the plaintiff has in this case. This entitlement to prosecute a claim in Florida courts rests exclusively in those persons granted by substantive law. 2d 689 (Fl. Corp. 3d DCA1985) 29. Defendant seeks a dismissal of the plaintiff’s complaint on the basis of fraud on the court and under the circumstances of this case. where MERS pronounced that “it does not acquire 5 . to date. 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. 626 So. Kumar Corp. 33. 462 So. 34.” Rogers & Ford Constr. Carlandia Corp. Nebraska Department of Banking. Weiss. “The determination of standing to sue concerns a court’s exercise of jurisdiction to hear and decide the cause pled by a particular party. 4th DCA 1996) 32. Ltd. The plaintiff is fully aware that MERS claims that it never owns promissory notes as MERS stated in the case of Mortgage Electronic Registration Systems. 28. 347 So.” Dynasty Express Corporation v.210(a) of the Florida Rules of Civil Procedure and applicable Florida law are met. v Nopal Lines. (Fla. Copies of these court orders. 675 So.
in the instant case. Registration Sys. Rule 1. contracts. 35. or documents upon which action may be brought to its complaint. MERS explained in the Nebraska case that it merely ‘immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur. Fla. In Florida.W. These allegations are utterly false and were know by plaintiff to be false at the time the plaintiff filed this action. Nebraska Department of Banking. The plaintiff has also failed to attach a copy of any other document or contract upon which this action to prosecute the breach of a promissory note is being brought.R.. notes. accounts. Rule 1. 42. 704 N. It is clear from the mortgage and the assignment attached to the plaintiff’s amended complaint that a person other than the Plaintiff is the true owner of the claim sued upon and that the Plaintiff is not the real party in interest and is not shown to be authorized to bring this action.R. As a result. 41. It appears on the face of the 6 . 37.310(b) provides that all exhibits attached to a pleading shall be considered a part of the pleading for all purposes.P.’” Mortgage Elec. “counsel for MERS explained that MERS … merely tracks the ownership of the lien and is paid for its services through membership fees charged to its members.Civ.130(a) requires a Plaintiff to attach copies of all bonds. Inc. 2005).Civ. v.” Id. the prosecution of a foreclosure action is by the owner of the mortgage and the holder of the promissory note. Fla.P. 39.2d 784. 40. bills of exchange.mortgage loans …because it only holds legal title to members’ mortgages in a nominee capacity… and that it does not own the promissory notes secured by the mortgages and has no right to payments made on the notes. In addition. The plaintiff has failed to attach a copy of the promissory note to its amended complaint. 787 (Neb. the plaintiff knew and was fully aware that it was asserting a right to foreclose as if it was the owner and holder of subject mortgage and promissory note when the plaintiff knew that such right did not exist and the plaintiff further knew that it was not the owner or the holder of the subject mortgage note at the time the plaintiff filed its amended complaint herein alleging that it owns and holds and possesses the subject promissory note and mortgage. 38. 36.
441 So. 2007. 2d 185. Inc. 772 So.. 187 (Fla. 43. Triple D Properties.A.S. Fladell v. Suite 500. Bar. v. 373 Facsimile: (904) 224-7050 april.. Mail and via fax (954) 233-8333 and via email to Donna Glick. this 31st day of December. 4th DCA 1983). Plantation. No. Greenwald v.charney@jaxlegalaid. 801 S. attorney for Plaintiff. such allegations cancel each other out. Florida 33324. JACKSONVILLE AREA LEGAL AID. award this defendant attorney’s fees and for all other relief to which this defendant proves herself entitled.2d 1240 (Fla. CERTIFICATE OF SERVICE The undersigned certifies that a true copy of this document has been mailed by U. Esquire Fla. WHEREFORE. _____________________________________ April Carrie Charney. Defendant requests this court dismiss the plaintiff’s amended complaint and this action with prejudice.plaintiff’s amended Complaint and the documents attached thereto that the plaintiff is not the proper party to bring this action. 3rd DCA 1983). 424 So. Costa Bella Development Corp. Stern.. 2d 1114 (Fla. When exhibits are inconsistent with the plaintiff’s allegations of material fact as to who the real party in interest is. 2000). Palm Beach County Canvassing Board. P.: 310425 126 W. ext. Law offices of David J. Florida 33202 Telephone: (904) 356-8371.. Adams Street Jacksonville.org Attorneys for Separate Defendant 7 . University Drive. Costa Development Corp. INC.