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v. NATIONSTAR, LLC, JOHN DOE(S), FANNIE MAE, MERS, All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in The Property Described in the Complaint Adverse to Plaintiff's Title, Or Any Cloud on Plaintiff's Title Thereto, Defendant ________________________________ MOTION FOR TEMPORARY INJUNCTION 4. Plaintiff/Petitioner seeks a temporary injunction pursuant to Fla. R. Civ. P. 1.610 prohibiting and estopping Defendants from filing post facto previously undisclosed documents into public records in order to enable Defendants to declare a default and institute foreclose proceedings on Plaintiff's home. 5. Under Fla. R. Civ. P. 1.610(a)(2)(c): Every injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading of another document, and shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction. 6. Florida (the SUBJECT PROPERTY) Prior to June 2007, Plaintiff's

purchased certain real property commonly known as 123 Smith Avenue, Broward City,


On or about June 8, 2007

Plaintiff refinanced the loan on the Subject Property through GMAC Mortgage, LLC dba, 3200 Park Center Drive, Suite 150, Costa Mesa CA 92626 and executed a promissory note in favor of GMAC Mortgage, LLC dba The note was secured by a mortgage. 8. MERS Mortgage Electronic

Registration System, Inc., appears as the mortgagee under the Security Instrument as Nominee for the Lender and Lenders successors and assigns. 9. Lender, Mortgagee, or Servicer of the loan. 10. Plaintiffs homestead property. 11. On or shortly after December Between June 8, 2007 and July Nationstar is not the original

8, 2011 there have been no Assignments of Mortgages filed with Broward County for the

2008 GMAC, the parent company of the Lender received billions from the United States Government through the TARP program, transferred ownership, dissolved several subsidiaries, consolidated other subsidiaries, and split ownership of certain areas of its business to CERBERUS and other areas to the U.S. Dept of the Treasury, and filed bankruptcy for yet other lines of business. The details of the transactions are unknown to Plaintiff. Under these circumstances Plaintiff has been unable to ascertain the continuing viability and existence of the Lender to which he specially made the Note payable to but review of public records indicate this Lender is no longer in existence. 12. Public records show that the Lender as listed on the Note and mortgage itself ceased to exist years ago and that the original Lenders parent company sought and obtained reclassification as a bank holding company on December 24, 2008, obtained billions of TARP, had a transfer of assets years over two years ago and has recently been investigated for mortgage fraud, and that there has been no change since. But, servicing does appear to have changed in December 2008, coincidentally the same time frame as

the TARP bailout, reclassification and reorganization. Now, Nationstar states Fannie Mae owns the loan but there has been no PRIOR disclosure of this although documentation regarding any transfer of ownership has been repeatedly requested. 4. registered to two different entities. 5. Additionally, on September 2010 Florida Department of

Corporations has two records for but both are in cancelled status and

a moratorium on GMAC related foreclosures took place in the following states as a result in defects in the transference of loans: Connecticut, Florida,Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky Louisiana, Maine, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Vermont, and Wisconsin. Attorney Generals of several of the aforementioned states began investigations asking courts to not let GMAC simply submit new documents to cure defects. 6. As a result of the information

being published in the media, Plaintiff wrote several qualified written requests to Nationstar requesting that Nationstar provide in writing the identity of the current holder of his note and confirmation that the same entity is in possession of the original note, a copy of the current note, referencing RESPA, 12 U.S.C. 2605(e) a complete accounting from loan inception to present, and for legal verification including a copy of the servicing agreement between Nationstar and the entity which hired Nationstar to substantiate Nationstar's right to collect payment from pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809(b). 7. Nationstar has failed to respond

to Plaintiffs requests and provided no current copies of any documents save a transaction history that begins only in December 2008 but fails to show an accounting for any transfer period. 8. Nationstar also failed to respond

in that it identified the Lender simply as GMAC in its correspondence however available filings on the Florida OFR of public licenses, yields between 72 and 332 different records related to the name GMAC. More specifically, the name GMAC yields 332 records, GMAC Mortgage LLC yields 72 records, GMAC Mortgage, LLC yields 28, GMAC Mortgage, yields 286 records, Ditech yields 18 separate records and yields two records. 9. In late June 2011, Nationstar

caused to be delivered to Plaintiff a letter advising Plaintiff of a default and intention to declare default and accelerate the debt naming Fannie Mae as the Creditor for the very first time. 10. Petitioner has been unable to

enter into meaningful collaboration and discussion of his loan because Defendants have refused to provide full disclosure, produce documents and respond to Plaintiffs proper legal requests. Solely reviewing the original note and mortgage under the circumstances as set forth above is insufficient to know the parties that may be policing the loan and are back seat drivers. The disclosure was absolutely necessary for full assessment by Borrower of his situation and to properly enter into negotiation on the loan such as writing a hardship letter to the correct entities. However, since Defendants have arbitrarily refrained from such disclosure, they ought to be prohibited from filing into public records, creating, and/or disclosing different facts than those presently ascertainable and disclosed. Otherwise, Defendants will obtain legal standing by disingenuous means creating and/or filing documents solely prepared to initiate litigation where they do not presently exist nor have not been filed in public record. Defendants moreover willfully withheld the servicing agreement, a full accounting, and other key documentation to Borrower in contravention of both state and federal laws. It should have provided it to initiate negotiations and prevent a dispute. 11. Plaintiff/Petitioner has a clear

legal right to seek preliminary injunctive relief as Plaintiffs reside in the Property and Defendants have stated that they will are declaring a default and will institute

proceedings despite failure for months to provide Plaintiffs with verification, documents, and satisfying the necessary legal requirements to give Defendants the right to declare a default, accelerate the loan, seek equitable relief, and take possession, custody, and control of the Plaintiffs homestead ultimately removing Plaintiff from his home. 12. Defendants will also seek

monetary compensation including but not limited to costs, attorney's fees, late fees, and deficiency judgments. Defendants will successfully interpose these claims by causing a change in the status quo through filing and creation of records not previously in existence nor disclosed. Defendants will proceed with Lis Pendens and Foreclosure action although they have failed to produce documentation for months, have failed to validate their right to collect, and have failed to respond to Plaintiffs requests repeatedly and purposefully. At this time, THERE is no public record of any assignment or transfer, of Plaintiffs Note and Mortgage, of any UCC filings and Nationstar has persistently failed to provide such information. 13. Nationstar however has undertaken a specific pattern of evation and failure to disclose and to validate the right of any party to collect on Plaintiffs note. In addition, at this time there are no assignments or transfers publically recorded. Due to all these circumstances, the right to injunction is clear and free from reasonable doubt. See Generally, Delta General Corp. v. Priess 389 So. 2d 1083 (Fla. 3d DCA 1980) 14. Petitioners quiet enjoyment and use of its real property, the governance of his own affairs; and the quiet enjoyment, peace, and welfare of his minor children are wrongfully and unlawfully threatened by Defendants imminent actions. 15. Petitioner also relies on the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Florida Statutes Section 501.201, et. seq., which permits injunctive relief. Florida Statutes 501.211(1) provides: (1) Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part. See also, Big Tomato v. Tasty Concepts, Inc., 972 F. Supp. 662, 664 (S.D.Fla. 1997) (a

competitor may seek an injunction under Section 501.211(1) of Florida's Uniform Deceptive and Unfair Trade Practices Act). 16. Petitioner PLAINTIFFs current income is low and has suffered from cutbacks and under employment. As a result Petitioner requests a waiver of the Bond requirement. In addition, the circumstances show that there is no harm to Defendants with the granting of the requested relief since the request is to maintain the status quo as the Defendants have already established through their responses and prohibit filing or creation of records solely in preparation for litigation. Where there has been a complete failure of disclosure in good faith exchange beforehand, no bond should be required as a prerequisite to the granting of the relief. The Defendants have actively chosen the current ascertainable set of facts. These facts show Defendants lack a lawful right to Petitioner's property. A party that has no interest and no lawful right to a property cannot possibly incur a loss. 17. If this Court directs that a bond be required, PLAINTIFF, hereby requests a de minimus bond. The proceeding notwithstanding, PLAINTIFF requests this Court recognize that his Property is itself the bond. Whoever succeeds in this litigation is indemnified and protected by the value of PLAINTIFF's property, thereby negating the necessity of a bond for the benefit of any party. Accordingly, requirement of an additional bond would be a little more than punishment on PLAINTIFF and bias and prejudice in favor of Defendants who have currently no recorded lawful right to Petitioner's property but which without the Court's granting of preliminary injunction and restraining order will manufacture and cause to be filed post facto an assignment for the exclusive purpose of artificially creating proper standing.

MEMORANDUM IN SUPPORT I. Relief Requested and Applicable Standard This Court should immediately issue a temporary injunction enjoining Defendants, Nationstar, MERS, Fannie Mae and John Doe(s) from assigning and recording an document such an Assignment of Mortgage until after this Court rules upon Petitioners Qualified Written

Requests and Verification of Debt Requests. To grant a temporary injunction, the court examines four factors: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits or a clear, legal right to the requested relief; (3) that the threatened injury to the petitioner outweighs and possible harm to the respondent; and (4) that the granting of temporary injunction will not disserve the public interest. See Naegele Outdoor Advertising Co., Inc. v. City of Jacksonville, 659 So.2d 1046, 1047 (Fla. 1995); Anich Indus., Inc. v. Raney, 751 So.2d 767, 770 (Fla. 5th DCA 2000). It is to be noted that specifically as applied to the Florida Deceptive and Unfair Trade Practices Act when express authority for issuance of statutory injunctions is provided by legislative enactment, an injunction may issue without resort to the traditional equitable prerequisites of such relief Time Warner Entmt/Advance-NewHouse Pship v. Worldwide Elecs. L.C., 50 F. Supp. 2d 1288, 1302 (S.D. Fl. 1999). II. Petitioner is likely to succeed on the merits PLAINTIFF can establish a strong likelihood of success on the merits. In the case at hand, at this time Nationstar has stated that GMAC is the original creditor. There are literally hundreds of licensees with the name GMAC in the public records of Florida, California, Delaware, and Pennsylvania so that Nationstar's response is both vague and overly broad and thus non-responsive. The clear, definite, and unequivocal factual findings in the general allegations support the necessity of justifying the entry of the temporary injunction. Tom v. Russ, 752 So.2d at 1251. In addition, the most recent letter from Nationstar states for the very first time Fannie Mae as Creditor. Current Public Records show no such status and all prior responses by Nationstar have denied transfer of the note or mortgage. Petitioner has requested repeatedly a Verification of the debt and Nationstar's right to collect same, has asked repeatedly for the name of the current owner and holder of the note but has only received the response of GMAC generally as the originator. Under the present facts, neither Nationstar nor Fannie Mae could legally declare a default. It is based upon these considerations that Petitioner prays that this Court restrain Nationstar, Fannie Mae, MERS, and/or John Doe(s) from creating and filing any documents post facto claiming or seeking to make a transfer of rights in the property, such that it could declare a default, and accelerate payment of the debt under the original promissory note to seek foreclosure of the mortgage for said note and additional damages without communicating to the original Promissor, the Petitioner, answering the qualified written requests

nor attempting to provide documents validating the debt. III. An injunction is necessary to provide Petitioner a meaningful opportunity to challenge Defendant's right to declare a default. Plaintiff has a right to a validation of the debt collectors claims for collection and pursuant to Federal law Plaintiff has had the right for the information requested in the Qualified Written Requests. If an assignment and/or record an assignment of the mortgage is recorded NOW in the County Records and BEFORE this Court has the opportunity to consider the merits of Petitioners challenge, Petitioner will already have suffered much of the harm his challenge aims to avoid because Defendants will utilize that assignment to declare a default and file suit for foreclosure despite the fact that they have been previously unknown to Petitioners and there is no document nor recorded transfer at this time of any such right. These acts are imminent as attested to by the letter received in June by Plaintiff. See City of Coral Springs v. Florida National Properties, Inc. 340 So.2d 1271 (Fla. 4th DCA 1976) request for injunctive relief not too early if irreparable harm imminent. But see Speer v. Evangelisto, 662 So.2d 1340 (Fla. 2d DCA 1995) a request for injunctive relief is too late if the harm sought has already occurred. An injunction is therefore vital to providing Petitioner meaningful relief. He will be effectively deprived of an opportunity to challenge the right of the parties to accelerate the loan if the injunction is not granted before Defendants manufacture evidence and declare a default. It is critical to note that there is no publicly recorded assignment of this mortgage. At this time. Petitioner fears that a spontaneous assignment will be manufactured and recorded for the sole purpose of creating standing where none exists currently. Should this Court grant an injunction after an Assignment is made and recorded, the Plaintiff will suffer the potential loss of his homestead. IV. This Court should grant Petitioner emergency motion because Petitioner will suffer irreparable harm if an assignment is recorded before this Court rules upon Petitioners challenge to Defendants rights to collect on his note and mortgage. An immediate stay is warranted because upon information and belief, An assignment is

imminent and will cause irreparable harm. In late June 2011 Petitioner received a letter informing him of an intention to declare a default by Fannie Mae. Simultaneously with this motion, Petitioner is filing a Declaratory Action requesting adjudication of the rights and obligations of Petitioner and Defendants. Petitioner has no adequate remedies to redress the harm he will suffer if Defendants cause to be filed an assignment of mortgage after Petitioner has requested on prior occasions verification of the debt and has not received same. Plaintiff has no other immediate and adequate remedy at law to redress the imminent harm of Defendants' intention to seek declaration of a default and institution of foreclosure proceedings including a Lis Pendens against Plaintiff's home without having provided the information in Petitioner's requests and to declare a default by setting in motion a specific set of events including the creation of and filing of an assignment of mortgage in public records where none currently exists so as to create standing. This is contrary to equity and good conscience in that such actions are eminent by parties who are at this present time unknown to Plaintiff and/or have failed to validate their rights to collect and failed to produce critical documentation despite repeated requests to do so. Unless this court enters a preliminary injunction and restraining order estopping Defendants from causing a change of the present ascertainable facts including creation and filing of assignments of mortgage not presently in the public records, Plaintiff's will suffer irreparable injury, loss, and damage of his legal rights as well as action in foreclosure against his interest in his homestead. V. No third parties will be unjustifiably harmed if the injunction is granted, and the public interest will be served. In balancing the hardships for a preliminary injunction, this Court should take note that at the essence, the request is made to avert confusion, imminent misrepresentation of the present ascertainable facts and to attempt to maintain all propriety including prohibiting the filing into public records of documents and transfers heretofore undisclosed, the creation of records post facto to give the appearance of standing where Defendants have to date failed to produce such documents. On information and belief these newly created documents will be used to foreclose on Plaintiff/Petitioner's right to his property, to respond to this courts order to validate ownership of the note, and to manufacture chain of title of Plaintiffs note and mortgage. Plaintiff has sought an accurate and complete accounting and validation of the right of Nationstar

to service the note and mortgage as well as the owner of the promissory note without proper response. Despite Nationstars responses, it has refused to turn over copies of the requested for documents for over nine months in violation of federal law. As of today, there is simply no verification or validation of Defendants claims to Plaintiffs loan. As such, the Petitioner/Plaintiff merely requests that the court impose an order effectively freezing the status quo positions of all parties. No one should be unjustifiably harmed by the maintaining of the status quo and prohibition from assigning, transferring, selling and/or recording any such transactions until such time as this Court has adjudicated the rights and obligations of the parties as these rights and obligations currently stand. The delay required by the lawsuit will not cause unreasonable harm. Defendant Nationstar has been given generous opportunity to provide the requested information and to verify the debt but has opted not to provide the information, so that it cannot in good faith argue harm. There are no public records of any transfers nor production of any document sustaining such. It has not been possible to ascertain who currently holds the rights of the original lender such that the root question is whether under the current state of facts, Defendants have a protectable interest. In fairness, any possible claimed harm by Defendants is substantially outweighed by the irreparable harm to the Plaintiff if the relief requested herein is not granted and Defendants are allowed to manufacture standing despite previous failing to validate claims and failure to comply with state and federal laws. Contrarily, the public good will be served by stopping the clock on the parties roles and standing as of the current date. First and foremost, it avoids confusion. In circumstances such as this where repeated requests for verification and information have been made with no response, it is in the public interest to stop the clock on the status quo to prevent post facto recreation of facts that would allow actors to create a veil under cover of law and file lis pendens and file a foreclosure suit against a consumer after repeated failure of disclosure and validation. VI. Petitioner, by and through undersigned Counsel is sending Defendants a copy of this Petition by certified mail and will also be serving any Notice to appear and Summons by Process Server. Given the fact that Nationstar has stated Fannie Mae is declaring a default, PLAINTIFF requests this court grant his ex-parte order to prevent irreparable harm to PLAINTIFF and to allow time for him to properly serve all parties his complaint.

VII. Conclusion A temporary injunction and temporary restraining order to stop Defendants from unlawfully causing to be created or recorded any assignment, transfer or sell any interest in Petitioner's mortgage and note until the adjudication of the current action should issue because: 1.) Petitioner is likely to succeed on the merits of his challenge petition; 2.) An injunction is necessary to provide Petitioner a meaningful opportunity to challenge Defendant declaration of default, filing of Lis Pendens, and complaint for Foreclosure; 3.) Petitioner will suffer irreparable harm if Defendants are not prohibited from creating and filing new documentation before this Court rules upon Petitioners remaining complaints and Petitioners Declaratory Action is adjudicated. 4.) Granting Petitioner immediate injunctive relief is the appropriate way to serve the public interest in this matter. WHEREFORE, Plaintiff respectfully requests for the issuance of a temporary restraining order, temporary and, if applicable, a permanent injunction enjoining Defendants, and each of them, along with Defendants officers, directors, employees, agents, attorneys, and any and all persons acting in concert with any of them, from any and all of the following acts: a. Trespassing on PLAINTIFF PLAINTIFFs real property

b. Filing any documents in the official records of Broward County, Florida changing the present ascertainable facts in order to assert any trust or ownership interest in the real property 123 Smith Avenue, Broward City, Florida titled in the name of PLAINTIFF the effect of which would be to place a cloud on title to that real property;

c. Taking any action that could adversely affect PLAINTIFF PLAINTIFFs rights to the quiet use and enjoyment of the aforementioned

real property including, but not limited to, (1) seeking to change the locks of the home (2) initiating any action against the Plaintiff or members of the Plaintiffs family with respect to any issue raised in, prompted by, or related to this action (3) appointing or initiating processes leading to the acceleration of the debt and commencement of foreclosure proceedings (4) contacting any financial institution with which PLAINTIFF PLAINTIFF does business in order to interfere with, or adversely impact PLAINTIFF PLAINTIFFs financial assets;

d. For such other and further relief as the Court deems just and proper.

Respectfully, Xiomara L. Cruz, Esquire Law Office of X.L. Cruz, PLLC 9900 W. Sample Road, Suite 300 Coral Springs, FL 33065