This action might not be possible to undo. Are you sure you want to continue?
STATE SOMETHING LIKE “AS INDENTURE TRUSTEE FOR THE REGISTERED HOLDERS OF IMH ASSETS CORP. COLLATERALIZED ASSET-BACKED BONDS, SERIES 2005-3,” Plaintiff, v. NAME OF BORROWER, BORROWER’S MOTION FOR SANCTIONS PURSUANT TO FLA.STAT. sec. 57.105 Case No. XXXXXXXXXXX Bar No. XXXXXXXXX
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
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]
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).
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.
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 abovereferenced Law Offices for having to defend the instant action; for the preparation and filing of this Motion; prejudgment interest as provided by
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.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.