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IN THE CIRCUIT COURT OF THE XXh JUDICIAL CIRCUIT

IN AND FOR XXXXXXXXX COUNTY, STATE

NAME OF PLAINTIFF (COULD STATE


SOMETHING LIKE “AS INDENTURE Case No. XXXXXXXXXXX
TRUSTEE FOR THE REGISTERED HOLDERS Bar No. XXXXXXXXX
OF IMH ASSETS CORP. COLLATERALIZED
ASSET-BACKED BONDS, SERIES 2005-3,”

Plaintiff,
v. BORROWER’S
MOTION FOR SANCTIONS
NAME OF BORROWER, PURSUANT TO FLA.STAT. sec. 57.105

Defendants.
____________________________________/

[EDITOR’S NOTE. THIS IS GENERALLY NOT FILED WITH THE CLERK BUT

IS SENT TO OPPOSING COUNSEL. IT IS FIELD WITH THE CLERK AND NOTICED

FOR HEARING WHEN BORROWER/DEFENDANT HAS WON THE MOTION TO

DISMISS OR OTHERWISE PREVAILED. IT APPLIES NOT JUST TO THE GENERAL

CLAIM BUT ANY PART OF ANY ALLEGATION THAT THE PLAINTIFF KNEW OR

SHOULD HAVE KNOWN WAS NOT TRUE, THEREBY INVOKING THE

REQUIREMENTS OF DUE DILIGENCE ON THE CLIENT, THE LAWYER WHO SIGNS

THE PLEADING, AND THE LAW FIRM THAT THE LAWYER FOR PLAINTIFF WORKS

FOR]

NAME OF PLAINTIFF, hereinafter Borrower, through undersigned counsel and

pursuant to Fla.Stat. sec. 57.105, decisional law thereunder, and the record facts below,

moves this Court to enter an Order of Sanctions against Plaintiff, and as grounds for

same states:

1. On or about DATE, Plaintiff, through its agent and attorney NAME OF

ATTORNEY WHO SIGNED PLEADING, Esq. of the Law Offices of NAME

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OF LAW FIRM. (hereafter “agent and attorneys”), caused this civil action

for foreclosure and to “enforce loan documents” to be filed in this Court.

For purposes of this Motion, the referenced allegations of the Complaint

are incorporated herein by reference.

2. In paragraph “X.” of Count X of the Complaint, Plaintiff, through its agent

and attorneys, affirmatively represent to the Court that “The Plaintiff owns

and holds the Note and Mortgage”.

3. In paragraph “X” of Count X, Plaintiff, through its agent and attorneys,

affirmatively represent to the Court that the mortgage was “subsequently”

assigned to the Plaintiff “by virtue of an assignment to be recorded” (that

being some time in the future).

4. In paragraph “XX” of Count XX, Plaintiff, through its agent and attorneys,

affirmatively represent to the Court that “The Plaintiff is not presently in

possession of the Note and Mortgage” and “the Plaintiff cannot reasonably

obtain possession of the Note and Mortgage because THERE

whereabouts cannot be determined” (original emphasis).

5. In paragraph “XX” of Count XX, Plaintiff, through its agent and attorney

affirmatively represent to the Court that “The Plaintiff will agree to the entry

of a Final Judgment of Foreclosure wherein it will be required to indemnify

and hold harmless the Defendant(s), from any loss they [sic] may occur by

reason of a claim by another person to enforce the lost Note and

Mortgage.” [EDITOR’S NOTE: VERY UNUSUAL PROVISION THUS FAR.

MIGHT NOT APPLY TO YOUR CASE]

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6. Plaintiff, through its agent and attorneys, thus inconsistently but

affirmatively allege, in Count X, that “Plaintiff owns and holds the Note and

Mortgage” when in fact the admissions in Count XX demonstrate, by the

allegations of paragraphs “XX” and “XX” of the Complaint, that the Plaintiff

DOES NOT and CANNOT legally establish possession or ownership of

the Note or the Mortgage and that same is/are, at all times material, in the

possession of an unknown party or parties.

7. A copy of the actual Note is not even attached to the Complaint, with the

only reference to a Note being in paragraph “XX.” of the Complaint which

alleges that a “ledger of loan” is attached (which in and of itself constitutes

a violation of Fla.R.Civ.P. 1.130(a).

8. By virtue of the admissions of the Plaintiff in paragraphs “XX”, “XX”, and

“XX” of the Complaint, the Plaintiff has admitted its actual knowledge that

it never, at any time material, had possession of either the mortgage or the

note as same were sold, assigned, or transferred to one or more third

parties. Such sale, assignment, or transfer was part of a single-transaction

securitization process which resulted in the subject mortgage and/or note

being sold, assigned, or transferred as parceled obligations and becoming

part of one or more tranches within a special investment vehicle.

9. Plaintiff cannot establish that the subject note or mortgage is owned or

controlled by the Plaintiff “indenture trustee” for unnamed holders of a

series of asset-backed bonds (a copy of which are not even attached to

the Complaint).

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10. As a direct and proximate result of the transaction referred to in

paragraph “8” above, the Plaintiff does not and cannot establish legal

standing to even institute a foreclosure action, which legal capacity to

institute this action ab initio and the alleged authority of the Plaintiff to

institute this action in a representative capacity is properly raised by

DEFENDANTS pursuant to Fla.R.Civ.P. 1.120(a).

11. Based on the foregoing, the allegation by the Plaintiff in paragraph “X” of

the Complaint constitutes matters which are completely devoid of factual

or legal support and are vitiated by the Plaintiff’s own admissions in Count

II of the Complaint, and are thus “frivolous” within the meaning of Fla.Stat.

sec. 57.105.

12. As the primary and threshold issue of legal standing to institute this action

cannot be satisfied by the Plaintiff (which was known to Plaintiff and its

agent and attorneys at the time that this action was instituted), this action

is a patently frivolous claim within the meaning of Fla.Stat. sec 57.105,

and in fact the filing and prosecution thereof constitutes a fraud upon this

Court.

13. In view of the foregoing, both Plaintiff and its agent and attorneys knew or

should have known, at the time they filed the Complaint in this action, that

the foreclosure claim was legally nonexistent, and that any suit to

foreclose on the alleged note and mortgage would be a legally

impossibility prohibited by law, and further that the filing of any such action

could not be in good faith or based on representations of the client.

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14. As such, both Plaintiff and its agent and attorneys knew or should have

known, at the time of the filing of the Complaint in this action, that the

claim for foreclosure was both not supported by the material facts

necessary to establish the claim, and also that the claim would not and

could not be supported by the application of then-existing law to the

material facts.

15. On DATE OF FRIVOLOUS CLAIM DEMAND LETTER, Defendants,

through his undersigned counsel, provided Plaintiff’s counsel with a formal

written demand, which was both faxed and mailed, to immediately and

forthwith dismiss the instant action with prejudice, provide clear title to the

subject property, refund all monies paid by Defendants/Borrowers in

connection with the alleged “loan” the subject of this action, and to pay all

attorneys’ fees and costs associated with the demand.

16. The time period provided by the statutory “safe-harbor” provision of

Fla.Stat. sec. 57.105(4) permitting Plaintiff and its agent and attorneys to

comply with the demands per the attached DATE OF FRIVOLOUS CLAIM

DEMAND LETTER letter has passed with no compliance by either Plaintiff

or its agent/attorneys.

17. As such and pursuant to Fla.Stat. sec. 57.105(4), Defendants file the

instant Motion and demands the assessment of attorneys’ fees against

both the Plaintiff and its above-referenced counsel and the above-

referenced Law Offices for having to defend the instant action; for the

preparation and filing of this Motion; prejudgment interest as provided by

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Fla.Stat. sec. 57.105(1), and for all other attorneys’ fees and other relief

provided by applicable law, and Fla.Stat. sec. 57.105 and decisional law

thereunder.

CERTIFICATE OF SERVICE

THE UNDERSIGNED HEREBY CERTIFIES that a true and correct copy of the
foregoing has been forwarded, via fax and mail, to NAME OF LAWYER WHO SIGNED
THE PLEADING., Law Offices of NAME OF LAW FIRM, ADDRESS, on this XX rd day
of MONTH, 2008.