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PATRICK PUENTES; et at Defendanffs).

DEFENDANT PATRICK PIJEN'TES' EMEIlGENCY MOTION TO STOPFOKECLOSURE SALE. TO VACATE F'0RECL0SIJRE COMPLAINT FOR FRAlJD ON THE COlJRT AND MOTION TO STRIKE FINAL.JUDGMENT OF FORECLOSURE AND ORDER SETTING FORECLOSURE SALE AND MEMORANDUM OF LAW COMES NOW, the Defendant PATRICK PUENTES, by and duougb his uodeIsigned oousel and :files this Motion and Memorandum of Law in the above-5ly1ed adion and as grounds therefore requests the Court to Dismiss this action with pn::jndice pnrsuaot to lbdes 1.100(b). 1.14O(bX1X6) and (hX2) and 1.210(a) and J.54O(b) of the Florida Rules of Civil Procedure, and states:

52.The Plaintiff filed their oomplaiot on Mareb 13, 200B, at the time the Plaintiff filed their
<COD:lpJaint they did not have standing and made JJJataial misrepresentati in their pleadings. 2. Fwtbertbe PJaintiffis a Trustee and does not and cannot own the DlOI'tgage as they are ~ on behalf of the investment trust in this ease.

53.Severalla:yers of fumd on the Court ~mred in this insIanc:e and justice requires that the Court set the
onJer setting sale dale aside immedV.ne1y BOd vacate the Final Judgment of Foreclosure dated December 12, 2001 which has listed a sale dale of Janwuy 23~ 2009.

54.In addition to not having standing. the plaintiff falsely alleged that "th~ original promissOJY note was lost
or destroyed subsequent to plaintiff's acquisition thereof' and that "plaintiff was in possession of the promissory note and was entided to enforce it when loss of possession occurred" when in actuaIi1;y they did not have an interest in the paper at the time of bringing this Jawsuit and a purported assignment occurred afterthe lawsuit was filed.

55.The Man:h .17. 2008 assignment oCmorlgage (See Exhibit"A j fiom Mortgage Electronic Registration Systems,
Incorporated as Nominee for Encore Credit Corporation d/b/a EC-C Credit Corpomtion of Florida (MEltS) to Plaintiff Lasalle Bank National Association. as Trustee for Certificateholders of Bear Stearns Asset Backed Securities I LLC, AssetBacked Certificates. Series 2006-HE9 ("LBNA j clearly states that the assignment of the mortgage and the promissory note

that are die subject ofibis foreclosure action were later filed after LBNA oldy as trustee filed a Notice-ollis pendens on Mareh 13,2008 in die Circuit Court of the Fifth Judicial District Court in and for Hernando County, Florida (See ExIu"bit ":Bj. LBNA in its suit also does not indicate how it had any right or legal ability to initiate such an action and simultaneously claimed that "they had also lost or destroyed die Mortgage Note" which they did not own---in fact LBNA as nominal trustee for mortgage-backed securities has filed many foreclosure actions throughout the United States under false, deceptive and misleading repIeSeDtations without any legal standing to sue any party and its interest in die debt. These patterns represent a pattern of ~nnpt and illegal activity. 6.. Further, the Assignment itself is objectionable and gives rise to several issues of possible misrepresentation and fiaueL (See Exhibit "A OS).

56.Liquenda Allotey has executed the assignment as Vice President ofMERS but he is not listed as an officer or
director of MERS. (See oomposite Exht"bit "C"),

57.Liqoenda Allotey has also executed Assignments as Vice President of other banks in the recent past (See Composite
Exhibit "D"), Most peculiar, Allotey was Vice President of Wasbington Mutual in 2006, Vice President ofMERS for this case and again on April 30, 2007, and Vice President ofWaslrington Mutual again on May 17,2007.

58.AUotey, in fact appears to works for FIS-LPS a mortgage coUection agency as evidenced by his Linkedln profile,
and the Summit magazine (page 18)(See Composite Exhibit "E").

59.Additionally, as to the March 17.2008 assignment. it purportedly assigns the mortgage and the
promissoJ}' note from MERS in its corporate capaci1;y as nominee (agent) directly to LBNA and not to the trust for which plaintiff acts as trustee. II. LBNA's pattern and prnctice of seeking and obtaining foreclosure judgments without a duly recorded assignment, without the evidence of a cbaio of assignment at time of filing suit constitutes a "false, deceptive, or misleading representation or means" in connection

with 1he collection of debt, in violation oftbe Federal Fair Debt Collection Practices Ac~ 15 U.S.C. 1692e and that bas occurred in this case as well.

60.The plaintiff also fails to attach a copy of the promissory note to its complaint. 61.From the pJaiotiff's own filings in this foreclosure action, it is established that a person other than the
plaintiffLBNA was in filet the true owner of the claim at the time LBNA actually sued upon. and that the plaiotiff is not and never was the real party in interest, and is not and C3ID1ot be shown to be the
proper amhorized party to bring this foreclosure action. In re: Shelter Developmem Group. Inc.. 50 BJt. 588 (Bankr.SD.FIa. 19!1.,S)

62.The p1aintiff did DOt own or hold the subject promissory note at the time the plaiotift' LBNA filed this foreclosure action on March 13, 2008, and the
plaintifwas fully aware of this Jack of ownership, and its lack of stmding at tile time oftbe commencement oftbis action. As stated piaintiffLBNA and others like it have done this repeatedly, and even federal 00UIts are striking their predatory tactics for this very same reason as they never bad

ownership and do not bave the notes where they just claim they lost them.

63.The plaintiffLBNA 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 of1his aetien, In fact the assignment of the mortgage did not take place unbl March 17, 200~, several days after the filing of the complaint where they claim to already have "lost or destroyed the mortgage note".

64.Unlike statutory prerequisites to filing a lawsuit, standing is having a sufficient interest in the outcome oflitigation which will
warrant a Court's entenaining it.

65.The plaintiff in this case, stilJ only a TRUSTEE for these securities, never bad an interest in the mortgage or the pmmissoty note,
and never had standing to bring this action.

66.In this case, the Court is without jurisdiction because the pJaintiffLBNA, a trustee, has perpetmted a fraud upon this Court in
this action as set out herein.

67.The falseness oftbe plaintiff's allegations tbat it owned, held and possessed the subject mortgage and promissory note is readily
apparent from a cursory review of the documents auached to the complaint and the 1ater filed assignment.

68.The defendant seeks a bearing io this matter to obtain an oIder dismissiog this foreclosure action filed by a trustee of a secwitized
mortgage pool based on a lack of standing; a lack of sul?ject matter jurisdiction; failure to state a cause of action for foreclosure and for ftaud on the Court which is also supported by Florida Rule 1.S4O(b) even at this late date. Also defendant Puentes seeks an oIder to strike the Final Judgment of foreclosure dated December 12, 2008 and order setting foreclosure sale

set for Janumy 23, 2009. .c;>

69.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 while claiming it bad already lost the mortgage note it did not own. Under Florida Rule 1.54O(b). there is no time limitation doe to fraud and misrepresentation in dismissiog a summary judgment. 22. The plaintiffLBNA is not the "owner' of the ~ mortgage or the promissmy note as the plaintiff alleges to 1bis Court in its complaint and not to grcmt defendant Puentes relief would be most bannful to him as once the scheduled sale takes place. 1bere is no further recourse while plaiotiffLBNA is not damaged as there is no beneficial interest for them to protect where delay would cause tbem harm. 23. The plaintiff's allegations that it "owned' "held' and "possessed' the mortgage and promissoIY note that are the contracts that are the subject of this foreclosure action are false and were made in bad faith as the pJaintiffknew said allegations were mise. In fact LBNA almost always claims they have lost their notes and cannot find them. 24. The plaintiffLBNA, only as trustee, establishes in its 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 Comt for they bad to assign the mortgage note at a later date, being March 17. 2008 {See Exhibit A j. Rhea v. Halkney, 157 So. 190, 193 (FIa. 1934) 25. "A plea is considered 'sham' when it is palpably or inherently false. and fimn the plain or conceded :fuels

in the case, must have been known to file party interposing it to be untrue.'"

Rhea v. Holkney, 157 So. 190, 193 (FIa. 1934); O'Berry: Pearson. 186 80.430 (1939); Furstv. Blackman, 744 So.2d 1222{Fla. 4d1 DCA 1999), ReifDeve/opmenJ. Inc. v. Wachovia Mortg. Ca., 340 So.2d 1267 (FIa. 4 DCA 1976). The plaintiff's complaint is a "shaJn". ----

70.The integrity of the civil litigation process depends on the tmthfuI disclosure of facts.
Metropolitan Dade County v. Martinson. 736 8o.2d 794 (Fia. 3R1 DCA 1999), Andrews v. Palmus De Majorca Condo, 898 So.2d 1066 (Fla. 5* DCA 2005). plaintiffs actions undermine the integrdy of ibis civil litigation process. 27. A trial comt has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action and strike an order when a plaintiff has perpetrated a fiaud or made misrepresentations to the Court. .Arzuman v. Suad., 843 So.2d 950 (Fla. 411I DCA 2003), Piullno v.

R.F. Concrete Constr . Inc; 904 So.2d 658 (Fla. 4110 DCA 2005)

71.A party guilty of fraud or misconduct in the prosecution of a civil proceeding should not be pennitted to
continue to employ the judicimy to achieve its ends where defendant asks this court for immediate relief and protection . .Andrews v. Polmas De Majorca Condo, 898 So.2d 1066 (FIa. 511I DCA 20(5)

72.The plainti1fLBNA's lack of ownership of the mortgage and the promissory note in this case goes to the
heart of its claim of standing, penneates the entire proceeding and subverts the integaity of the action. Metropolitan Dade County v. Martinsen. 736 So.2d 794 (FJa. 311l DCA 1999)

73.The plaintiff's efforts to misrepresent ownership of the note are a mere pretense set up in bad faith and
without color of filet. Reg Development, Inc v. Wach0viL4 supm and Furst v. BIac1mI01l. supra.

74.It is appropriate for the trial court to dismiss an action based on ftand. where there is a blatant showing of fraud,
pretense. collusion, or other similar wrongdoing. Distefano v. Stale Farm Mutual.A:uJomobile Ins. Co., 84(j So.2d 572, 514 (FIa. ) 51 DCA 2003)

75.Rule 1210(a) of the Florida Rules of Civil Procedure provides in pertinent part:
Every action may be prosecuted in the name oftbe real party in interest. but a personal representative. administrator, guardian. trustee of an express trust. a party with whom or in whose name a contmct has been made for the ~eflt of another, 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. . The plaintiff meets none of these standing criteria. 76.Standing requires that tbe 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. This entitlement to prosecute a claim in Florida courts rest exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v. Nopa! Lines, LId. et aI, 462 So.2d 1178 (F1a. 3d DCA 1985) 34. No Florida case holds 1bat a sepamte entity can maintain suit on a note payable to another entity unless the requirements of Rule 1210{a) of the Florida Rules of Civil Procedure and applicable FJorida Jaw are met. Corcoran v. Brody, 347 So.2d 689 (Fla. 4th DCA 1977)


"The detennination of standing 10 sue concerns a court's exercise of jurisdiction to hear

and decide the cause pled by a particular party." Rogers & Ford Constr. Corp. 11.
Corlandia Corp., 626 So.2d 1350, 1352 (Fia. 1993)


Defendant Puentes seeks a dismissal of the plaintiff's complaint on the basis offraud on the court, making numerous misrepresentations, and under the circumstances of this case, "a formal evidentiary hearing on this motion to dismiss, as well as permissible discovery

prior to the hearing, is required." Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (FIa 4* DCA 1996)


Recent decisions of many courts:&om around the country fimn state courts, federal district courts and baokruptcy courts have caused actions such as the present to be dismissed for failure to state a claim and for fatlure to assert an injmy in met. Copies oftbese court orders, to date, can be presented to and filed with the Court and are iocorpon!led herein.


As held in the In re Foreclosure Actions, the appropriate documentation requiredjo

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effectuate an

equitable assignment and having legal standing to bring a foreclosure action

must be through a trust and/or assignment documents executed before the action was commenced, OT both as cin:mnstances may require. 2007 WL 4034554 at *1 (N.D. Ohio 2007). A trust cannot be effective until it bas been executed so the assignment documents that place property in trust would need to be executed before any action could be taken. Here. the assignment documents were not executed until after tbe action was brought in court.. This is a fiaud upon the court and should be dismissed because the plaintiff's bad no legal standing to even bring tbe action for foreclosure at the time that they did.

77.Where a plaintiff does not own a mortgage OT have any interest io the mortgage at the time
of filing foreclosure action, the case must be dismissed for failing to comply with statutory requirements of standing. See Davenport v. HSBC Bonk,275 Micb.App. 344, 347-348, 739 N.W.2d 383, 385 (Mich.App..,2007) (Where the defendant did not own the mortgage or an interest in the JJJOJ18age at the time in whicb they commenced foreclosure proceedings. Quite simply, defendant did not yet own the indebtedness that it sought to foreclose. Because defendant lacked the statutoI}' authority to foreclose" the foreclosure proceedings were void Db initio). See also Fleet Nal. Bonlc v. Nazareth.75 Conn.App. 791. 794-795. 818 A.2d 69, 71 (Conn.App..2003) (In this case. however, the plaintiff was never the holder of the note. The plaiotiffhas failed to cite any authority, nor bas our

research found any. to support its claim that it has standing to foreclose on the mortgage without ever having been assigned the note). See also m re

Nosek,386 B1 374. 380

(Bkrtcy.D.Mass..2008) (Holding that those parties who do not hold the note or mortgage and who do not service the mortgage do not have standing to pursue motions fur relief or other acUODS arising :ftom the mortgage obligation. Schwartz, 366 B..R.. at 270). 40. Similarly. where action was commenced only a few days before execution of an assignment, comts have held that the Plaintiffbas no standing to bring an action in court. So regardless of the amount of time between the action being filed and the execution of -~~the assignment, the assignment must be executed prior to any assignment. See Mongage Electronic Registration Systems. me.. 17. Thompson, 2002 WL 521704 (Conn.Super 2002) (plaiotiffhad no standing to bring foreclosure action, and thus, court lackedjurisdiction over action, where action was commenced at a time when plaiotiffhad no interest in mortgage beiog foreclosed; defendant was served writ, summons and complaint Ihree days before plaintiff was assigned mortgage to be foreclosed, and plaintiff offered court no evidence as to its legal or equitable right to bring action on or before date of service. C.G.SA 49-17).

78.Florida Courts bave also held in similar cases that an assignment must be executed before a
party may file suit. See Progressive W.1ns. Co. 1'. McGrath Comollmily Chiropractic. 913 So.2d 1281, 1287
(FIa.App. 2d DCA 200s)(Where an insurance provider alleged that insurance benefits were assigned to it without producing a written instrument, then amended the claim with a written iostnunent dated six months after the filing of the suit, held that the provider lacked standing because there was no assignment at the time that the case was filed in court).

79.Courts bave held that a party's lack of standing is a defect that cannot be cured by acquiring the right of standing after
action has already been filed. See Gwa1tnev of Smithfield.

Ud. l'. CI}esgpeaJre BqyFound..lnc..

484 us, 49, 69 (1987) (Scalia, J., concurring) ("Subject matter jurisdiction depends on the state of things at the time of the action brought). See Also Progressive Co . 913

So.2d 1281. Compare to DasmoIlfl1estments. LLC v. RealtvAssoc. Fund m, LP.459 F. Supp. 2d 1294, 1302
(S.D. Fla., 2006)(Party suing on PmmiSSOl)' Note must be in actual possession of the original note to have standing).

80.The plaintiff amnot in good faith deny knowledge of the judicial fmdings qfthese many comts around the country, it is now even
in newspapers and on television, and these widely publicized issues relate directJy to the underlying standing problem that_~ plaintiff LBNA has in this case and other cases. 44. The pJaintiffLBNA is fully aware that the trustee never owns promiSSOl)' notes as MERS once stated in the case of Mortgage Electronic RegistrLllioJJ Systems. Jnc. v. Nebrasm Department of Bonking, where MERS pronounced that as trustee of a pool of mortgagebacked securities, It does not acquire mortgage loans . because it only holds legal title to members' mortgages in a nominee capacity ... and tbat it does not own the promissory notes secured by the mortgages and has 00 right to paymeo1s made 00 the Dotes." LBNA as 1mstee, is just like MERS as explained in the Nebraska case that "it (the trustee) mere)y immobilius the mortgage lien while transfers of the promissory Dotes and servicing rights continue to occur." Mor/gage Elec: RegisJration Sys., Inc. v. Nebraska Dept. a/Banking, 704 N.W.2d 714, 717 (Neb. 2005)

81.As a result in the instant case, the plaintiifLBNA knew and was fuUy aware that it was asserting a right to foreclose
as nit was the owner and bolder of tile subject mortgage and promissory note when the plaintiffknew that such right did not exist and die plaintiff fiu1her knew that it was Dot the owner or 1he holder of the subject mortgage note at 1he time the plaintiff filed i1s complaint herein alleging that it owns and holds and possesses the subject promissory note and mortgage. These allegations are utterly false and were known by the pJaintiffto be false at the time the pJaintifffiled this action on March 13~ 2008. In effect, plaiotiffLBNA falsely represented the status of the debt, in particular. that it was due and owing to plaintiffLBNA at the time the suit was filed, and that LBNA was an innocent purchaser for value, when in fact. only an assignment for no value had not been accomplisbed days later on Mareh 17.2008. All a total Sbam.

82.In Florida, the prosecution of' a foreclosure actioB is by the rightful owner of the mortgage and the
bolder of1be promissory note. At the time of this filing, LBNA bas not been shown to have a

connection to this matter.

83.It is clear fi"om the mortgage and the assignment later produced and attached h~. 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

84.Florida Rule ofCivi1; Procedure 1.130(a) requires a pJaintiffto attach copies of all bonds, notes, bills of
excbange, contracts, aecouats, or documents upon which action may be brought to its complaint. Instead, even before the assignment, LBNA was already claiming to be the rightful owner and tbaltbe "mortgage note bad either been lost, destroyed. and that plaintiff was unable to state tbe manner in which this occurred ... and after diligent search they were unable to obtain possession of the mortgage note:' LBNA wanis this court to believe that this is an isolated case involving the defendant Puentes, but in fact, they never owned the note and in many suits they bring, they make the same claims before the court often going unchaDenged as they foreclosed on other's property.

85.The pJaintitJ' also has 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.

86.Fia. R. Cw. P. Rule 131O(b)proYides thataJl exhiDitsattached toa pleading shall be considered a
part of the pJeading for all pmposes. It appears on the face of the plaintiff's complaint and the docwnents attached thereto that the plaintiff is not the proper party to bring this action. Because the facts revealed by PlaintitPs exhibits are inconsistent with Plaintiff's allegations as to the ownership oftbe subject mortgage and note, those allegations are neubalized and PJaiotiff's complaint is rendered objectionable. Greenwald 1'. Triple D Properlies.lnc.. 424 So.2d 185, 187 (FIa. 411I DCA 1983).

87.When exhibits are inconsistent with the pJaintiff's allegations of material filet as to who the real
party in interest is, such allegations cancel each other out. Fladellv. Palm Beach County Canvassing Board. 772 So.2d 11240 (Fla 2000); Greenwald 1'. Triple D Properties, Inc., 424 So.2d 185, 187 (FJa. 411I DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So.2d 1114 (Fla. 3d DCA 1983).> -_.:,

88.Lastly, Florida Rule 1..54O(b) also gives relief 1iom judgment, decrees or olders if there is
merit to the case, which there is in this case. In paragraph (b) on motion and upon such terms that are just. the court may relieve a party or a party"s legal representative ftom a final judgment, decree, order, or proceeding for the Conowing reasons:
i, Mistake, inadvertence, surprise. or excusable neglect; ii. Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial or rehearing; and

iii, Fmud (whether heretofore denominated intrinsic or extrinsic). miSJeorese1ltatio~ or other misconduct of an adverse party.
The nde does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree
for fraud upon the court. From the plaintiffs own pleading. it is easy to see where 1here have been both fraud and misrepresentation in this case and other eases which LBNA and their attorneys are also involved. WllEREFORE, The Defendant, PATRICK PUENTES, pmys that this Honomble Court grant a beariog (if necessary') and dismiss the pJaintiff's complaint and this action with prejudice; immediately strike the Final Judgment of Foreclosure and the order scheduling foreclosure sale dated December 12. 2008; award this defendant aU other relief to which this defendant proves himself entitled to including but not limited to an award for reasonable and necessary attorney's fees; or in the alternative. issue a temporary restmining order to allow for a hearing on this matter as delay will not cause prejudice to non-standing party plaintiffLBNA but would severely harm defendant Puentes. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular Il.S, Mail and facsimile to ___________________. Florida 33309 on this lz.1i.y of January, 2009. Respectfully submitted. ; _;~