, Plaintiff, v. JAMES A. MOTIL, JR., et al. Defendants. _____________________________/ DEFENDANT, JAMES A. MOTIL JR'S AFFIDAVIT IN SUPPORT OF HIS MOTIONS FILED CONCURRENTLY HEREWITH 1. I am a resident of Highlands County, Florida over the age of twenty-one and I am CASE NO. 09 000 655-GCS

competent to testify in this matter because I am the named Defendant in the above-styled case and I have personal knowledge thereof. 2. I signed a promisorry note ("NOTE") on 6 September 2006 to Household Finance Corporation III ("HFC III") which is similar to the copy of a promisory note ("Note Copy") attached to Plaintiff's Complaint. 3. 4. I did not deliver any papers to anyone on 6 September 2006. I remember going to the office I signed a purported mortgage ("MORTGAGE") on 6 September 2006 to Mortgage of Swaine, Harris & Sheehan, P.A. in Sebring, where I signed documents that were already there. Electronic Registration Systems, Inc., the purported mortgagee ("MERS"). The MORTGAGE is similar to the copy of a purported mortgage ("Mortgage Copy") attached to Plaintiff's Complaint, but it is not similar to the purported original mortgage filed ("POM") herein. 5. signed. 6. 7. 8. 9. I did not receive any money from MERS for signing a mortgage. I did not sign a mortgage to the "lender," HFC III. I did not sign a mortgage to Decision One Mortgage Company, LLC. I did not receive a "notice of assignment of mortgage" showing that MERS had assigned I have gone to the courthouse and looked at the POM and that document is not the one I

any mortgage to anyone prior to the filing date of the Complaint. 10. I did not sign a promissory note to MERS. 11. I did not receive any money from MERS for signing a promissory note.
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12. 13.

I was never obligated to pay any money to MERS and I never paid any money to MERS. I did not receive a "notice of default" from either the lender or a Note-Holder prior to the

Plaintiff's filing of this case. 14. I received a "notice of default" (a.k.a., a "dunning letter') from Plaintiff,1 dated 18 March 20092 which stated, "Failure to cure the default by 04/18/09 may result in the acceleration of all sums due under the Security Instrument." [Emphasis added.] 15. I did not receive a "notice of acceleration" (as described in the Mortgage Copy) from either the lender, a Note-Holder or Plaintiff prior to the inception of this case. 16. The Mortgage Copy says: "Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice [of acceleration] shall provide a period of not less than 30 days from the date the notce is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower."3 17. The Mortgage Copy says: "Neither Borrower nor Lender may commence ... any judicial action ... until such Borrower or Lender has notified the other party ... and afforded the other party hereto a reasonable period ... to take corrective action."4 18. In Plaintiff's 18 March 2009 dunning letter,5 it says: "CitiMortgage, Inc. is providing this notice as lender or servicing agent for the lender." Since HFC III was the only possible "lender," Plaintiff appears to have been only a "servicing agent for the lender" on 18 March 2009. 19. Appearing on the bottom of both pages of the dunning letter is this statement: "CitiMortgage is a debt collector and any information obtained will be used for that purpose." 20. I sent a letter dated 12 April 2009 to Plaintiff requesting validation of the alleged debt.6 21. I did not receive a validation of the alleged debt. 22. I did not receive a "notice of acceleration" from anyone which required "immediate
1 2 3 4 5 6 By its Complaint and its Exhibits, Plaintiff was NOT the lender, nor the Note-Holder in March 2009. A copy of the dunning letter is attached to both my Answer and my First Amended Answer as "Exhibit A." See Mortgage Copy at page 9, ¶ 18. See Mortgage Copy at page 10, ¶ 20. See Exhibit B attached to Plaintiff's "Affidavit in Support of Motion for Summary Judgment," first paragraph. A copy of my 12 April 2009 letter is attached to both my Answer and my First Amended Answer as "Exhibit B."

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payment in full of all sums secured by this Security Instrument"7 prior to the inception of this case. 23. The record shows Plaintiff filed its Complaint on 6 May 2009. 24. The record shows that no "assignment" is attached to Plaintiff's Complaint. 25. The record shows that the exhibits (a purported note and mortgage) attached to the Complaint do not contain Plaintiff's name, and neither do the purported originals. 26. Attached to the Complaint is an "Exhibit X" which offers "30 days" to "dispute" the alleged debt. It goes on to say: "If ... you request proof of the debt or the name and address of the original creditor within the thirty-day period which begins with your receipt of this notice, the law requires me to suspend my efforts (through litigation or otherwise) to collect the debt until I mail the requested information to you." In April 2009, I asked for validation which I did not receive prior to the commencement of this case. 27. The Complaint did not validate to me that I owed any money to Plaintiff. 28. I filed my initial ANSWER on 1 June 2009. 29. The record shows that the purported originals of the alleged note and mortgage were filed on 17 June 2009--more than two weeks after I filed my initial Answer and more than a month after the Complaint was filed. 30. Attached to Plaintiff's "Affidavit in Support of Motion for Summary Judgment" is a copy of a purported "Assignment of Mortgage" apparently executed on 15 July 2009, two months AFTER the Complaint was filed (hereafter,"Assignment"). I have not seen any purported "original" Assignment. 31. The Assignment does not show that either MERS or D.M. Wileman had any authorization from HFC III to make any assignment on HFC III's behalf. 32. The Assignment bears no corporate seal. 33. The Assignment is not authenticated and Plaintiff has laid no foundation for its admission into evidence. The Complaint alleges an "Assignment," but does not identify it by parties, dates, or otherwise. 34. I have read Plaintiff's "Motion for Summary Judgement of Foreclosure" which contains one extremely important misstatement of fact. It wrongly says: "Essentially, Defendant is arguing that Household Finance Corporation III rendered the mortgage unenforceable when it initially transferred the mortgage, but not the note." Mr. Motil never said that. Mr. Motil is not saying that HFC III "transferred the mortgage," for the simple reason that:
7 See Mortgage Copy at page 10, ¶ 22 Helpful comments or questions send to:


35. The record does not show that HFC III was ever a "mortgagee" who had any "rights" that it could "transfer." The Complaint does not allege that HFC III was ever the "mortgagee" herein. 36. It is Mr. Motil's "argument" that because one person was named as the "Note-Holder" and a different person was named as the "mortgagee," the NOTE is, thereby, an "unsecured" debt and the alleged mortgage is, also thereby, a nullity.8 37. I have seen the alleged "original" of the Note Copy on file at the courthouse and there are blank areas on the signature page with room for additional endorsements and said note appears to be a high-resolution, computer-generated, color copy of the original as I alleged in paragraph 27 of my First Amended Answer. 38. Under penalties of perjury, I declare that I have read the foregoing affidavit and that the facts stated in it are true.9 39. FURTHER AFFIANT SAYETH NAUGHT. JAMES A. MOTIL, JR., Affiant _____________________________________________ 113 S DELANEY AVE, AVON PARK FL 33825-3930, Telephone: (863) 443-1061
INSTRUCTIONS TO NOTARY: This document must be affirmed under oath, not merely an acknowlegment. Before the verification is signed, you must: 1) Place the affiant under oath; 2) Insure the affiant understands that all assertions are affirmed to be accurate and the affiant is subject to the penalty of perjury for any false statement; and 3) Have the verification signed by the affiant in your presence.


) ) SS )

Subscribed to and affirmed before me on this 30th day of July 2011 by James A. Motil, Jr, who is [ ] known to me, or who provided a Florida Driver's License Number ________________________ as identification Notary's Signature: _____________________________ Notary's Name and SEAL:
8 See my First Amended Answer on page 5 at ¶ 25. 9 Pursuant to F.S. § 92.525(1)(b) and (2), 2010. Helpful comments or questions send to:


CERTIFICATE OF SERVICE I, the undersigned, certify that a true and accurate copy of the foregoing document was sent via FedEx to the person listed below on the 30th day of July 2011: STEVEN ELLISON BROAD AND CASSEL 1 NORTH CLEMATIS ST STE 500 WEST PALM BEACH FL 33401-5552 Certified by: James A. Motil, Jr.

Telephone: (561) 832-3300 FAX: (561) 655-1109

__________________________________ 113 S DELANEY AVE AVON PARK FL 33825-3930 Telephone (863) 443-1061

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NOTES It appears from the Complaint and Plaintiff's exhibits that Plaintiff could not have validated its ownership of the debt in March, April or May of 2009, because it's own allegations show it did not own the debt. Not a negotiable instrument because: 1) not a set amount (additional debt), 2) requires more than just payment of money (occupy, mortgage insurance, etc.) Submitting documents dated prior to filing complaint-- Judge Cowden would not allow me to ask questions because dates before 6 May 2006 were "irrelevant." not fair. The Assignment says MERS received "valuable consideration," but I never got any. The trial-court record shows no relevant "assignment" existed before the Complaint was filed. "D.M. Wileman," the purported "proper officer" of MERS who executed the Assignment, was nothing more than a "robosigner" because he is neither an employee nor a duly appointed officer of MERS. The Assignment shows it was notarized in Texas, but MERS' address is listed in Michigan. The Assignment says it was "prepared by" a "M.E. Wileman" whose address is listed as "Orion Financial Group, Inc., 2860 Exchange Blvd. #100, Southlake, TX 76092." 40. The alleged Note [page 2, ¶ 6. (E)] says "If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to ... attorney's fees." 41. Plaintiff is seeking to recover attorneys' fees from me, but Plaintiff has laid no foundation to support the award of attorneys' fees. To the contrary, the alleged "Security Instrument" (mortgage) defines "Attorneys' Fees. As used in this Security Instrument and the Note, attorneys' fees shall include those awarded by an appellate court and any attorneys' fees incurred in a bankruptcy proceeding." (at page 10, ¶ 24) The words in the Security Instrument (mortgage) neither mention nor include attorneys' fees for "county court," "circuit court" or "trial court." 42. d 43. Upon information and belief: said MORTGAGE was recorded on 7 September 2006 by Swaine, Harris & Sheehan, P.A. After it was recorded, it was to be returned to Swaine, Harris & Sheehan, P.A. and then it was to be delivered to Decision One Mortgage Company, LLC--not to

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HFC III10 44. 18 March 2009 was four (4) months BEFORE Plaintiff contends it had the "right to enforce the instrument by virtue of the Assignment of the Mortgage and Note to the Plaintiff."11

10 See the alleged Mortgage at page 1. 11 See Complaint, Count I at page 2, ¶ 3 and Count II at page 6, ¶ 8. Helpful comments or questions send to:


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