Preview
IN THE CIRCUIT COURT OF THE q 4 JUDICIAL CIRCUIT
IN AND FOR _0 ¢ene/o COUNTY, FLORIDA
Dectsche Gank win CaseNo.: 2 C//— &4 - 887.2.
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VERIFIED MOTION TO VACATE FINAL
FORECLOSURE JUDGMENT AND SALE
FOR FRAUD ON THE COURT
COMES NOW DEFENDANT, Dean /S games . PRO SE, AND
MOVES THIS COURT FOR AN ORDER VACATING AND SETTING ASIDE THE FINAL
FORECLOSURE JUDGMENT AND SALE CERTIFICATE FOR FRAUD ON THE COURT
BY PLAINTIFF , AS GROUNDS WOULD SHOW AS FOLLOWS:
1. IN THE INSTANT CASE, THE PLAINTIFF_Decet sche Genk v4. HAS
VIOLATED THE MORTGAGE CONTRACT AND HAVE COMMITTED FRAUD ON THE
COURT BY CONTINUING TO REPRESENT TO THIS COURT THAT PLAINTIFF IS THE
CURRENT OWNER AND HOLDER OF THE MORTGAGE AND NOTE, THROUGH OUT
THIS LITIGATION, CAUSING THE COURT TO RENDER FAVORABLE JUDGMENT FOR
PLAINTIFF AND FINAL FORECLOSURE AND SALE OF DEFENDANTS’ REAL
PROPERTY, AGAINST DEFENDANT..
22 THE PLAINTIFF MISREPRESENTATION MEETS THE STANDARD FOR
FRAUD ON THE COURT AS DESCRIBED BY THE 5" DISTRICT COURT OF APPEAL IN
COX V. BURKE:
‘ so
THE DEFENDANT, ALLEGING THAT THE DEFENDANT HAD DEFAULT UNDER THE
NOTE AND MORTGAGE TERMS AND THAT PLAINTIFF IS THE LEGAL AND OR
EQUITABLE OWNER AND HOLDER OF THE NOTE AND MORTGAGE AND HAD THE
RIGHT TO ENFORCE THE LOAN DOCUMENTS.
10. A COPY OF THE MORTGAGE AND NOTE WAS ATTACHED TO PLAINTIFFS’
COMPLAINT LISTING Pope No v9 24c and A5So¢, ¥ac,AS THE LENDER
AND MERS AS THE MORTGAGEE.
11. THE DEFENDANT TIMELT ANSWERED THE COMPLAINT, DENYING THAT
PLAINTIFF HAD STANDING TO SUE AND MADE AFFIRMATIVE DEFENSE AMOUNG
OTHER THING, AND THAT PLAINTIFF FAILED TO MEET CONDITIONS PRECEDENT
TO FILING FORECLOSURE.
12. ON OR ABOUT _Oee 20_/.3_, SUMMARY JUDGMENT
HEARING WERE HELD, RENDERING FINAL FORECLOSURE JUDGMENT IN FAVOR
OF PLAINTIFF.
13. IN THE CASE AT BAR, THE PLAINTIFF FILED FORECLOSURE
COMPLAINT AGAINST THE DEFENDANT, MAKING GENERAL ALLEGATION,
WITHOUT PROOF, THAT THE PLAINTIFF HAD STANDING TO FILE TH E
FORECLOSURE COMPLAINT AND THAT ALL CONDITIONS PRECEDENT TO FILING
THE COMPLAINT HAVE BEEN MET.
1 ARGUMENT
.14. THE DEFENDANT HAS A RIGHT TO RAISE ISSUES OF PLAINTIFFS’
FAILED TO PROVE ITS STANDING TO SUE DEFENDANT. THE DEFENDANT MAY BY
GENERAL DENIAL AND IS NOT REQUIRED TO RAISE IT ( GENERAL DENIAL ) BY
AFFIRMATIVE DEFENSE, WHICH NOW PLACE THE DEFENDANT IN POSTURE OF
HAVING TO PROVE BY PREPONDERANCE OF EVIDENCE THAT THRESHOLD
REQUIREMENT WERE NOT MET BY PLAINTIFF WHEN THE BURDEN WAS ON
PLAINTIFF TO PROVE THRESHOLD ALLEGATIONS OF PLAINTIFF COMPLAINT. SEE
THE AUTHORITY OF WOOTEN V. COLLINS 327 SO.2D 795 FLA 3°° DCA 1976, .
15. BECAUSE THE PLAINTIFF IS REQUIRED TO PROVRE EVERY MATERIAL
ALLEGATION OF ITS COMPLAINT, HOWEVER, ONCE THE DEFENDANT HEREIN
MAKES A SPECIFIC DENIAL OF A PARTICULAR ELEMENT OF THE CLAIM,
PLAINTIFF HEREIN IS OBLIGATED AND REQUIRED TO PROVE THAT IT HAS MEET
ITS BURDEN. SEE BERG V. BRIDLE PATH HOMEOWNERS ASS’N INC. 809 SO.2D 32,
34 FLA 4™ DCA 1995. BUT PLAINTIFF HAVE FAILED TO DO SO.
16. However, attached to plaintiff complaint lists
6 Oo pe Moet qe and ASS. tne. ,as the lender and Mers as the mortgagee. When exhibits
are attached to a complaint, the contents of the exhibits control over the allegations of the
complaint...because the exhibits to plaintiffs’ complaint conflicts with its allegations concerning
standing and the exhibits does not show that plaintiff has standing to foreclose the mortgage, In
the instant case, the plaintiff did not establish its entitlement to foreclose the mortgage as a
matter of law.
17. The plaintiff subsequenly filed the original note, the note does not identify plaintiff as
the lender or holder.
18. That when plaintiff attached the note and mortgage to its complaint as an exhibit
which had defects, standing may be challenged. See Bac funding consortium Inc Isaoa / Atima v.
Jean Jacques 28 so.3d 936 Fla. 2" DCA 2010.
19. The plaintiff was required in this case to show standing at the time of the complaint
was filed. See Mclean v. J p mortgage chase bank Nat. Ass’n 79 so.3d 170 Fla. 4" DCA 2012
and failed to do so. Notably from plaintiffs’ motion for summary judgment, as well as an
affidavit, in support of the summary judgment. The affidavit which was executed by a
representative of plaintiff servicing after the law suit was filed, set forth amounts due and owing
under the loan.. The affidavit further stated that the plaintiff is the holder and owner of the note
and mortgage originally given to defendant. However, the affidavit did not specifically state
when plaintiff became the owner of the mortgage and note, and did not state that plaintiff
the person executing the deed does not hold one of these officers, an authorized resolution must
be obtained and should be recorded. That in the instant case, because the assignment of mortgage
purporting to convey the subject real property herein from MERS to
Deuts che Bank W-A~_ was executed by Katha Sm/th and
“AANS< Ohimi¢n ,aS non president, vice president or chief executive
ofiicers of the corporation, the assignment of mortgage is ineffective on its face to convey title,
as it was not executed in compliance with eith conveyance statute. See Dgg Devel. Corp. v.
estate of Capponi 983 so.2d 1232 Fla 5" Deca 2008. SEE ATTACHED ASSIGNMENT.
3 ARGUMENT
24. In additional, under the merger doctrine , if MERS legal interest and the
beneficiaries’ equitable interest are conveyed to the same person, the interest are deemed to have
mergered, rendering the transfer and assignment invalid. Here, MERS is a nominee and agent for
the plaintiff according to the mortgage, mers has the authority to assign the mortgage.
25. Generally, if the borrower returns his interest ( which borrower did by signing to
Mers its beneficiary interest ) in the property to lender, such operates as merger of the two estates
of interest, which merger results in discharge of mortgage and satisfaction of debt .see 557 so.2d
646 fla 4'" dea 1990.
26. Mers holds beneficial interest in the note and mortgage, The defendant gave Mers the
explicit power to enforce the note and mortgage by foreclosure of the note according to the
mortgage.MERS has become both beneficiary trustee, nominee and agent which causes the
transfer and assignment of mortgage to be void. See axtell v. coons 89 so.2d 419 ( 1921 ) .it is
improper for the same person to become the beneficiary and trustee and agent.
27. The general rule is that when one has an interest in property which he may alien or
assign, that interest, whether legal or equitable, is liable for payment of his debt. Croom ,57 SO.
AT 244-245.
28. The defendant assigned MERS the explicit power by a provision in the mortgage to
enforce the note .MERS already was given the power to enforce the mortgage and note for its
own benefit.. MERS can not create a lien on the property for its benefit and insert a clause
.
allowing the defendant to assign its beneficiary interest to MERS. MERS then exercised
dominion and control over the mortgage, note and the real property. Therefore, such assignment
of mortgage fails where the beneficiary exercise absolute dominion over the property of the
defendant. As a result, the assignment from MERS fails under florida law where the beneficiary
has the right to require the real property to convey the property because, in such instances, the
beneficiary has, in effect, dominion and control over the real property .see HIDALGO COUNTY
WATER CONTROL AND IMPROVEMENT DISTRICT 233 F.2D 712 5™ CIR. 1956,
Holding that no one can have an easement in his own property and therefore, for easement to
exist the dominant and servient estate must be held by different owners.final judgment can not
stand.
.
29. MERS lacked authority and power of attorney to convey the mortgage and note to
any one. as MERS was an agent and nominee for the principal lender.
30. As part of defendants’ answer to the complaint, the defendant denied the plaintiffs’
allegation that the conditions precedent have been meet. The mortgage herein was a valid
contract and the lender / plaintiff was required to give notice to the defendant before acceleration
and that notice must specify the default, the action required to cure the default and a date final
for cure the default. The notice must also inform the defendant that the failure to cure the default
before the specified date could result in acceleration or foreclosure. See par. 20 to 22 of the
mortgage,
31. The defendant hereby deny under the penalty of perjury that he / she did not received
the required notice and further declare that the plaintiff have not complied with any of the
conditions precedent expressed in section 15, 20 TO 22 of the mortgage.
4 ARGUMENT
32. In the instant case, The defendants’ mortgage in which the plaintiffs’ cause of action
is based. ( the mortgage ) Provided that no suit may be commenced until acceleration notice has
been given pursuant to the terms of the mortgage. See par. 20 to 22 of the mortgage. The notice
must be at lease 30 days prior to initiation of the suit. Par. 20 to 22 of mortgage, which states 30
day notice is required. The plaintiff failed to do so.
33. That based on the fact that plaintiff filed foreclosure suit prior to meeting the
mortgage conditions precedent, the plaintiff lacked standing at the inception of filing this action
and the court lacked jurisdiction to entertain the action because the filing of foreclosure was
premature and is not a defeat that may be cured by the acquisition of standing after the case is
filed . see progressive exp. V. megrath chir. 913 so 2d 1281 fla 2" dea 2005.
34, Progressive supra holds that the rule on relation back of amended pleadings
did not permit provider to establish the right to maintain an action against insurer
retroactively by acquiring standing to file lawsuit after the fact..
35. In the case of voges v. ward 98 fla. 304, 123 so. 785 ( 19 29 ),The plaintiff held
only one of 12 notes necessary to the replevin of collateral under a condition sales
contract when the action for replevin was filed. Although the plaintiff acquired all of
the notes before suit was filed, the trial court ruled that the suit was prematurely
brought. The supreme court affirmed the trial courts’ ruling on this point, explaining that
the general rule in action at*law is that the right of a plaintiff to recover must be
measured by the facts as they exist when the suit was instituted. |D at 793.
36. In the case of konsulian v. busey bank n.a. case # 2 d 10- 2163, opinion filed
June 1, 2011, 2" District court of appeal, Judge Black, On appeal, the appellant
konsulian argued that the appellee busey filed suit prematurely and the court agreed
and reversed the trials’ courts’ order granting summary judgment in favor of busey bank
( busey ).
5 ARGUMENT
Lack of Notice of Default and Opportunity to
Cure Prior to Acceleration
37. The requirement of notice prior to acceleration is both a condition and a covenant.
Based on section 22 of the Mortgage and the definition of “lender" set forth on page I of the
Mortgage, Amedas v. Brown, 505 So.2d 1091 (Fla. 2nd DCA 1987), a default notice from the
"lender" is a condition precedent prior to filing this complaint, Dykes v Trustbank Savings. F.S,B.,
567 So.2d 958 (Fla. 2™ DCA 1990); Gomez v. American Savings and Loan Ass'n, 515 So.2d 301 (Fla,
4" DCA 1987): Rashid v. Newberry Federal Savings and Loan Association, 502 So.2d 1316 (Fla. 3rd DCA
1987); Rashid v. Newberry Federal Savings and Loan Association, 526 So.2d 772 (Fla. 3rd DCA 1988).
38. The Mortgage provides that no suit may be commenced until acceleration notice has
been given pursuant to the terms of the Mortgage. (Complaint, Mortgage, par. 22) That notice
must be at least 30 days prior to the initiation of the suit. (Reference in par. 20 to par. 22 of the
Mortgage which states 30 days notice required) Additionally, the notice that is required is that
sent by first class mail to the defendants. (Complaint, Mortgage par. 15) The Plaintiff alleged
all conditions precedent to foreclosure had been performed or occurred. (Complaint, para. 16).
Plaintiff submitted a Florida Default Law Group, P.L. letter March 16, 2010 to the Defendants.
This letter does not constitute the 30 day notice prior to filing of a foreclosure action as required
by the mortgage. Plaintiff failed to allege when the letter was sent. Plaintiff also failed to allege
that the letter was mailed by first class mail or otherwise delivered to the Defendants. In fact, if
the letter was mailed by first class mail on the same date that is listed on the letter, then the
Plaintiff filed this action prior to the expiration of the 30 days in violation of the contractual
terms of the mortgage. Thus, the complaint must be dismissed.
39. Plaintiff is in further volation of the four corners of its contract. Acceleration
remedies require notice, prior to acceleration, of (a) the default; (b) the action required to cure
the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by
which the default must be cured; and (d) that failure to cure the default on or before the date
specified in the notice may result in acceleration of the sums secured by this Security Instrument,
foreclosure by judicial proceedings and sale of the property. (Complaint, Mortgage, para. 22).
Plaintiff's attached letter fails to clearly violated defendant's rights to advance notice of
acceleration. The plaintiff failed to advise the Defendants that the loan is in default and the
actions available to cure the default. The Plaintiff's lack of 30 days notice prior to acceleration,
lack of 30 days notice of default prior to filing of the foreclosure action, and lack of notice of
default and the process whereby the defendant could cure said default are violations of material
onditions precedent of the Mortgage. Therefore, the foreclosure judgment and sale must be
vacated and set aside.
6 ARGUMENT
40. ON SEPT 10, 2013, THE GENERAL MAGISTRATE MADE TIMELY NOTICE TO ALL
PARTIES THAT FAILURE TO APPEAR AT STAUS HEARING MAY RESULT IN
DISMISSAL OF THE CASE. SEE ATTACHED RECOMMENDATION AND REPORT.
41. THE STATUS HEARING WAS HELD ON SEPT 26, 2013 AND PLAINTIFF FAILED TO
APPEAR. AS A RESULT THE MAGISTRATE RECOMMENDED THAT THE CASE BE
DISMISSED AND ISSUED AN ORDER TO THE SAME. HOWEVER, ON SEPT 26, 2013,
THE HONORABLE JUDGE SCOTT POLODNA, ADOPTED THE ORDER REPORT AND
RECOMMENDATION OF GENERAL MAGISTRATE, DONE AND ORDERED ON JAN 7,
2014. SEE THE ATTACHED ORDER AND REPORT.
42. THAT ON DEC 9™ 2013, THIS COURT MADE A REPORT AND RECOMMENDATION
OF THE GENERAL MAGISTRATE RENDERING FINAL JUDGMENT OF
FORECLOUSRE CONFICTING WITH THE SEPT 26, 2013 MAGISTRATE REPORT AND
RECOMMENDATION. THE SEPT 26, 2013 REPORT RECOMMENDED THAT THE CASE
BE DISMISSED. THE EARLY ORDER DOES NOT SUPPORT FINAL FORECLOSURE
JUDGMENT AND SALE., BUT RECOMMENDED DISMISSAL.
43. THE COURTS’ DEC 9, 2013, REPORT AND RECOMMENDATION OF GENERAL
MAGISTRATE ON FINAL JUDGMENT OF FORECLOSURE WAS ABSOLUTELY
ENTERED IN ERROR AND IS VOID, AS IT WAS NO BASIS FOR SUCH CONCLUSIONS.
44. THE COURT LACKED JURISDICTION TO ENTER THE SUBJECT ORDER ON DEC 9,
2013, AND LACKED JURISDICTION TO CORRECT ITS OWN JUDGMENT AT ANY
TIME. THE TRIAL COURT NOR PLAINTIFF NEVER MOVED FOR REHEARING OF THE
PRIOR ORDER AND NEVER FILED AN APPEAL. OR MOTION UNDER 1.540.
RESPECTFULLY, THE FLORIDA SUMREME COURT HAS BEEN VERY CLEAR IN
RULING THAT A TRIAL COURT LACKS JURISDICTION TO CORRECT ITS OWN
JUDGMENT AT ANYTIME. SEE SHELBY MUTUAL INS. CO. V. PEARSON 236 SO2D 1
Fla 1970; see also Corzo Trucking Corp. v. West 974 so.2d 627 Fla 4" Dea 2008.
45. THIS COURT MAY THINK THAT THE SEPT 2013 ORDER WAS SOME SORT OF
CLERICIAL ERROR THAT JUSTIFIED SUA SPONTE ACTION UNDER 1.540.
RESPECTFULLY, THE LAW FLATLY REJECTS SUCH A POSITION. SEE MOFORIS V.
MOFORIS 977 SO.2D 786 FLA 4" DCA 2008.
46. THE ORDER WAS ENTERED IN ERROR, WITHOUT FACT FINDING, WITHOUT A
HEARING , AND WITHOUT EVIDENCE. THE COURTS’ FINAL JUDGMENT OF
FORECLOSURE AND SALE WAS ENTERED IN ERROR, WITHOUT EVIDENCE AND
WITHOUT GIVING DEFENDANT A CHANCE TO BE HEARD, IS CLEARLY IMPROPER.
THE FACT FINDING CAN NOT BE MADE SUA SPONTE OR EX PARTE AND THEY
CAN NOT BE MADE WITHOUT HEARING. THE ORDER MUST BE REVERSED.
47, BASED ON THE DEMONSTRATED FRAUD THAT PLAINTIFF
DasdSA2 Bork V. R- »>HAVE PERPETRATED UPON THE COURT,
THE COURT SHOULD SANCTION THE PLAINTIFF HEREIN BY STRIKING ITS
FORECLOSURE COMPLAINT AND DECLARE VOID THE FINAL FORECLOSURE
JUDGMENT AND SALE FOR THE FRIVOLOUS MOTIONS AND COMPLAINT AND FOR
FRAUDULENTLY CAUSING DELAY AND INTENTIONALLY VIOLATING THE
MORTGAGE CONTRACT BETWEEN PLAINTIFF AND DEFENDANT.
48. THE COURT HAS THE AUTHORITY TO ENTERTAIN THIS MOTION BROUGHT
UNDER THE RULE 1.540 b 3 FOR A CLAIM OF INTRINSIC FRAUD ON THE COURT AT
ANY TIME AS INDEPENDENT ACTION CHALLENGING THE FINAL JUDGMENT. SEE
CERNIGLIA V. CERNIGLIA 679 SO.2D 1160 FLA 1996.
49. WHEREFORE, Defendants requests the Court order striking the Plaintiffs’
foreclosure complaint and final foreclosure judgment and sanction the plaintiff by declaring
default against plaintiff bases on the reasons stated herein and other relief as the court deem just
and proper..
Respectfully Submitted,
Deunls Frnrcs
Hox sec willow oy. KIS5-
VERIFICATION Els BS47y3
I Dennls Jornroe , AM THE DEFENDANT IN THE ABOVE
ACTION AND I HAVE READ THE FOREGOING MOTION AND ITS CONTENTS AND
ALL IS TRUE AND CORRECT AND I HAVE PERSONAL KNOWLEDGE AND DEALINGS
OF THE SAME, AND THIS STATEMENT IS MADE UNDER THE PENALTY OF PERJURY
ON Ape dl L2 20_ 1
Yonkh@s Tan v« Dana/t Sorr=3
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail,
this 12 day of _ 4p, 20_/¢% to plaintiffs’ attorney at
obser tson - Asch vir aseke.. 6YO4q congress’
& é oo don Pls 334%)
Dennds Ja £5
CFN 2010040649
Bk 03963 Pas 1384 - 1385? (2pas)
‘ DATE? 03/23/2010 08:42:44 An
MALCOM THOMPSON, CLERK OF COURT
OSCEOLA TY
Prepared y and return to: RECORDING FEES 18.50
Shapiro & Fishman, LLP .
10004 N. Dale Mabry Highway, Suite 112
Tampa, FL 33618
S&F No.: 10-169967
eo
This area above this line is for the use of recording official
ASSIGNMENT OF MORTGAGE
Mortgage Electronic Registration Systems, Inc. as Nominee for Pope
Mortgage and Associates, Inc., (""Assignor"), C/O Shapiro & Fishman, LLP, 10004 N.
Dale Mabry Highway, Suite 112, Tampa, FL 33618, has granted, bargained, sold, assigned,
transferred and set over, and by these presents does grant, bargain, sell, transfer and set over unto
Deutsche Bank Nation: ist Company, as Trustee for American Home
Mortgage Assets Tru: Mortgage-Backed Pass-Through Certificates,
Series 2007-1, ("Assign hapiro & Fishman, LLP, 10004 N. Dale Mabry Highway,
Suite 112, Tampa, FL 33618, ing described Mortgage(s) recorded in the Public
Records of Osceola County, St: tt Elo ida, together with the note of obligation described in
said Mortgage(s), and the mon dui bi come, due thereon, with interest as therein
provided, pursuant to section 701.02; -oe
Date of Mortgage: October 27, whe
Mortgage Recording Date: November 17,
Clerk's File Number: 2006-275961 OY
Book Number: 3335
Page Number: 1827
Legal Description: .
LOT 38, BLOCK 195, BUENAVENTURA LAKES SUBDIV! ISION, UNIT 9, 7TH
ADDITION, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 5,
PAGES 137 THROUGH 138, OF THE PUBLIC RECORDS OF OSCEOLA COUNTY,
FLORIDA.
Origina: Mortgagors: Dennis Anthony James and Winnifred Patericia James, His Wife
IN WITNESS WHEREOF, Assignor has caused these presents to be executed this
DT __ day of _Fotuney _, 2010.
WA01R2019
CCNHIONANNANGAG Dana 1 nf 9
RAAnL2ORWDana12QA
Mortgage Electronic Registration Systems, Inc. as Nominee for Pope Mortgage and Associates,
» bike bid»
Inc.
(CORPORATE SEAL)
state oF Florid:
COUNTY OF Duvaljss.
.
I HEREBY CERTIFY, That on this day personally appeared before me, an officer duly
authorized to administe: oaths and take acknowledgements of the above referenced d uly
authorized signatories of and who are
personally known to me and did take an oath and who are to me well known to be the persons
described herein and who executed the foregoing Assignment of Mortgage and duly
acknowledged before me an ted the same for the purposes therein expressed as the act and
deed of said corporation.
)
IN WITNESS e hereunto set my hand and affixed my official seal, said
County and State, this aS ly of , 2010
aS
Lyon
*NOTARY PUB
Name of Notary:
cy) ‘Notary Public State of Florida
© Genny x DD904551
Expires 03/16/2012
Commission NO.
My Commission Expires: %-\le- COT2
S&F No.: 10-169967
(SEAL}
Dane 9 nf 9
PAARL 2RWDana12AQR CENHONANNANGAG
IN THE CIRCUIT COURT OF THE NINTH
.
-> JUDICIAL CIRCUIT IN AND FOR
é Cnkse
\ iy ye Re. } Ke OSCEOLA COUNTY, FLORIDA
> Case Number: oe ti C t { L
Division:
Plaintiff,
vs.
qj
pe va ‘iS py nhc ne Sevit e% XU;
62
Defendants.
/ /
REPORT AND RECOMMENDATION OF GENERA!
L
Se TES
This cause came to be heard before the under
signed General Magistrate upon the
Plaintiffs / Defendant’s Motion. The General Magistrate has authorit
y to hear this matter
pursuant to Rule 1.490, Florida Rules of Civil
Procedure. An Order of Referral was served
upon
the parties and no party made a timely
objection to the referral. The General
Magistrate heard the
testimony and review of the case pres
ented and therefore makes the followin
g Findings of Fact
and Conclusions of Law:
FINDINGS OF FACT & CONCLUSIO
i -
NS OF LAW
aN *
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SA oN > \&e Ge A osteo
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RECOMMENDATION OF THE MAGISTRATE
Based upon the above-stated Findings of Fact and Conclusions of Law, the undersig
ned
makes the following recommendation:
tA. That the above-referenced motion be GRANT)
ED and the attached proposed order be
enteredby the Court.
[ ] That the above-referenced motion be DENIED and the attached propose
d order be
entered by the Court.
——fFfFPlaintiff [ ] Defendant attorney of record will be responsible for serving this
Report and Recommendation of the General Magistrate immediately and the
Order on all
parties after the Order has been signed by Judge, including the filing of a certific
ate of
service stating that service was completed per Florida Rules of Civil Proced
ure for each.
REPORTED AND RECOMMENDED this Ac day of >& wh , 2013.
T
BY:
General Magistrate
IN ACCORDANCE WITH RULE 1.490(H), FLORIDA RULES OF CIVIL PROCE
DURE
SHOULD YOU WISH TO SEEK REVIEW OF THIS REPORT AND RECOM
MENDATION,
YOU MUST FILE EXCEPTIONS WITHIN 10 DAYS OF SERVICE
OF THIS REPORT
(UNLESS ALL PARTIES WAIVE THE EXCEPTI ON PERIOD)
. YOU WILL BE REQUIRED
TO PROVIDE THE COURT WITH A RECORD § UFFICIENT TO
SUPORT YOUR
EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDIN
ARILY
INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDING
S. THE
PARTY SEEKING REVIEW WILL BE RESPONSIBLE FOR HAVING
THE TRANSCRIPT
PREPARED IF NECESSARY FOR THE COURT’S REVIEW. A COPY OF
EXCEPTIONS
MUST BE SUBMITTED TO GENERAL MAGISTRATE AT THE SAME
TIME AS FILING.
Court reporter present?
Yes [ ] (state name)
No[ ]
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
dD eI. pe ne Sor
Case Number:
Division:
Plaintiff
VS.
a
Le aAyn —\ yf
Defendants
ORDER ON
THIS CAUSE came before the Court and the Court having reviewing the Court file. It is
hereby
ORDERED as follows: ,
VAs Cone s\ve\\ \pw CLG HASSE EI
2 & Pv Ov wh Ak GLC ACA © ps Sy
C
3 Cra he S\ cA, Wie ¢ uku™
> So
a plaintie ] Defendant attorney of record will be responsible’ fOrs
3 serving
this Order on all parties after the Order has been signed by Judge, including the
filing of a certificate of service stating that service was completed per Florida Rules
of Civil Procedure.
DONE AND ORDERED in Chambers at Kissimmee, Osceola County Florida, this
day of » 2013.
Circuit Court Judge
1
Service List
2011-CA-003872
Robertson, Anschutz & Schneid, P.L.
6409 Congress Avenue, Suite 100
Boca Raton, FL 33487
Dennis Anthony James
403 Sea Willow Drive
Kissimmee, FL 34743
Winnifred Patericia James
403 Sea Willow Drive
Kissimmee, FL 34743
The Buenaventura Lakes Community Association, Inc.
c/o Beulah Farquharson, R.A.
333 Blue Bayou Drive
Buena Ventura Lakes, FL 34743
Sent to above parties 12/5/13
Ag Ct
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2011 CA 003872 MF
T
DEU' ITSCH
SRA REE BANK
BANK NATI
NAMOONAL
NAL TRUS T COMP Wie ee se 2 Sev yh \
So alee Nos N Rear i he clcled
a Lio \\2 Xe cy oll ks \: or 0 ork VS
Cr pies TYAS \ YS N3 HOt AWA CACQYSMALAG & C
tke, Ce as; Pic xv Ssh Cue. 3 nal
Dene as SAAS VE CW he wctcct click
Elvis Le ak Ape AW ynice cl
RECOMMENDATION OF THE MAGISTRATE
Based upon the above-stated Findings of Fact and Conclusions of Law,
the undersigned
makes the following recommendation:
: A That the above-referenced motion be GRANTED a:
ind the attached proposed order be
~~on
entere y the Court.
{ ] That the above-referenced motion be DE NIED and the attached proposed order be
entered by the Court.
— os ef paincit [ ] Defendant attorney of record will be responsible for serving this
Report and Recommendation of the General Magistrate
immediately and the Order on all
parties after the Order has been signed by Judge, including the filing
of a certificate of
S
service stating that service was completed per Florida Rules of Civil
Procedure for each.
REPORTED AND RECOMMENDED this Ac day of ek 4S , 2013.
BY:
General Magistrate
IN ACCORDANCE WITH RULE 1.490(H), FLORIDA RULES OF
CIVIL PROCEDURE
SHOULD YOU WISH TO SEEK REVIEW OF THIS REPORT
AND RECOMMENDATION,
YOU MUST FILE EXCEPTIONS WITHIN 10 DAYS OF SERVICE
OF THIS REPORT
(UNLESS ALL PARTIES WAIVE THE EX CEPTION
PERIOD). YOU WILL BE REQUIRED
TO PROVIDE THE COURT WITH A REC: ORD SUFFICI
ENT TO SUPORT YOUR
EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECOR
D ORDINARILY
INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCE
EDINGS. THE
PARTY SEEKING REVIEW WILL BE RESPONSIBLE FOR HAVIN
G THETETTRANSCRIPT
PREPARED IF NECESSARY FOR THE COURT’ S REVIEW
. A COPY OF EXCEPTIONS
MUST BE SUBMITTED TO GENERAL MAGIS TRATE
AT THE SAME TIME AS FILING.
Court reporter present?
Yes [ J (state name)
No[ ]
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
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Division
Plaintiff
VS.
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ALL
Defendants
ORDER ON
THIS CAUSE came before the Court and the Court having reviewing the Court file. It is
hereby
ORDERED as follows:
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pa rain ] Defendant attorney of record will be responsible forserving
this Order on all parties after the Order has been signed by Judge, including the
filing of a certificate of service stating that service was completed per Florida Rules
of Civil Procedure.
DONE AND ORDERED in Chambers at Kissimmee, Osceola County Florida, this
3B cay of ln 4. ror,
‘ourt Judge
Service List
2011-CA-003872
Robertson, Anschutz & Schneid, P.L.
6409 Congress Avenue, Suite 100
Boca Raton, FL 33487
ae
Dennis Anthony James
403 Sea Willow Drive
Kissimmee, FL 34743
SO) - 2) _ BL
Winnifred Patericia James
403 Sea Willow Drive Phen? GR Fl — bye /
Kissimmee, FL 34743
The Buenaventura Lakes Community Association, Inc.
c/o Beulah Farquharson, R.A.
333 Blue Bayou Drive
Buena Ventura Lakes, FL 34743
Sent to above parties 1/10/14
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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2011 CA 003872 MF
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DEUTSCHE BANK NATIONAL TRUST COMPANY tw am
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Plaintiff ca
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One
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2 Son
VS. 222 AGO
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DENNIS ANTHONY JAMES et al,
Defendant
ORDER SETTING CASE FOR STATUS HEARING
REGARDING CASE STATUS
YOU ARE HEREBY NOTIFIED that a STATUS HEARING in the above cause will be
heard before the Presiding Foreclosure Judge/General Magistrate on:
Thursday, September 26, 2013 at 11:00 a.m. at Hearing Room 6E (6" floor)
at 2
Courthouse Square, Kissimmee, FL 34741. Plaintiff/Counter-Plaintiff’s failure
to appear may
result in dismissal of the case. The parties shall be prepared to give the Court the status
of the case at
the time of the hearing. If the case is disposed of by dismissal or Final Judgment of all
parties prior
to the hearing, the hearing will be cancelled. No telephonic appearances allowed
.
DONE AND ORDERED in Chambers at Kissimmee, Osceola County,
Florida this | Q day
of September, 2013.
JOHN E. JORDAN Circuit Civil Judge
CAORSHR
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true copy of the foregoing has been furnished via U.S. Mail to:
Shapiro, Fishman & Gache, LLP, Attorney for Plaintiff, 4630 Woodland Corporate Blvd.
Suite 100, Tampa, FL 33614;
Dennis Anthony James, Defendant, 403 Sea Willow Drive, Kissimmee, FL 34743;
Winnifred Patericia James, Defendant, 403 Sea Willow Drive, Kissimmee, FL 34743;
The Buenaventura Lakes Community Association, Inc,, c/o Beulah Farquharson, R.A., 333 Blue
9
Bayou Drive, Buena Ventura Lakes, FL 34743; this AQ__ day of September, 2013.
pt/Court Program Specialist
If you are a person with a disability who needs any accommodation in order
to participate in this proceeding, you are entitled, at no cost to you, to the
provision of certain assistance. Please contact the ADA Coordinator, Court
Administration, Osceola County Courthouse, 2 Courthouse Square, Suite 6300,
Kissimmee, Florida 34741, (407) 742-2417, at least 7 days before your
scheduled court appearance, or immediately upon receiving this notification if
the time before the scheduled appearance is less than 7 days; if you are
hearing or voice impaired, call 711.
CAORSHR
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL
CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2011 CA 003872 MF
DEUTSCHE BANK NATIONAL TRUST COM
PANY
Plaintiff
VS. 7
oF
aa a
DENNIS ANTHONY JAMES . et al.
Defendants
SS
REPOTRT AND
RAS REC
RE OMM
OMMEND
ENDATI
ATION OF
OF GENE
GENERAL
RAL MAGI
MAGISTRA
STRATE
TE ON
JUDGE MENT OF
ON FINA
FINAL
— TEE FORE CLOSSURE
MALY URE
This cause has come to be heard before the undersigned
General Magistrate. The
Genera! | Magistrate has authority to hear this matter pursu
ant to Rule 1.490, Florida Rules of
Civil P: rocedure. An Order of Referral was served
ui pon the parties and no party made a timely
objection to the referral. The General Mai gistrate
heard the testimony presented and has
otherwise been advised in the premises and theref
ore makes the following Findings of Fact and
Conclusions of Law:
FINDINGS OF FACT & CONCLUSIONS OF LAW
[ X] The General mag: istrate and the Court have j
Preview
IN THE CIRCUIT COURT OF THE q 4 JUDICIAL CIRCUIT IN AND FOR _0 ¢ene/o COUNTY, FLORIDA Dectsche Gank win CaseNo.: 2 C//— &4 - 887.2. Plaintiff, 72 me 20/(-cA-003k “ Oenns 4. Tan es Qn et Defendants. ov m 2 Qnsae om = on IES 2 an riot VERIFIED MOTION TO VACATE FINAL FORECLOSURE JUDGMENT AND SALE FOR FRAUD ON THE COURT COMES NOW DEFENDANT, Dean /S games . PRO SE, AND MOVES THIS COURT FOR AN ORDER VACATING AND SETTING ASIDE THE FINAL FORECLOSURE JUDGMENT AND SALE CERTIFICATE FOR FRAUD ON THE COURT BY PLAINTIFF , AS GROUNDS WOULD SHOW AS FOLLOWS: 1. IN THE INSTANT CASE, THE PLAINTIFF_Decet sche Genk v4. HAS VIOLATED THE MORTGAGE CONTRACT AND HAVE COMMITTED FRAUD ON THE COURT BY CONTINUING TO REPRESENT TO THIS COURT THAT PLAINTIFF IS THE CURRENT OWNER AND HOLDER OF THE MORTGAGE AND NOTE, THROUGH OUT THIS LITIGATION, CAUSING THE COURT TO RENDER FAVORABLE JUDGMENT FOR PLAINTIFF AND FINAL FORECLOSURE AND SALE OF DEFENDANTS’ REAL PROPERTY, AGAINST DEFENDANT.. 22 THE PLAINTIFF MISREPRESENTATION MEETS THE STANDARD FOR FRAUD ON THE COURT AS DESCRIBED BY THE 5" DISTRICT COURT OF APPEAL IN COX V. BURKE: ‘ so THE DEFENDANT, ALLEGING THAT THE DEFENDANT HAD DEFAULT UNDER THE NOTE AND MORTGAGE TERMS AND THAT PLAINTIFF IS THE LEGAL AND OR EQUITABLE OWNER AND HOLDER OF THE NOTE AND MORTGAGE AND HAD THE RIGHT TO ENFORCE THE LOAN DOCUMENTS. 10. A COPY OF THE MORTGAGE AND NOTE WAS ATTACHED TO PLAINTIFFS’ COMPLAINT LISTING Pope No v9 24c and A5So¢, ¥ac,AS THE LENDER AND MERS AS THE MORTGAGEE. 11. THE DEFENDANT TIMELT ANSWERED THE COMPLAINT, DENYING THAT PLAINTIFF HAD STANDING TO SUE AND MADE AFFIRMATIVE DEFENSE AMOUNG OTHER THING, AND THAT PLAINTIFF FAILED TO MEET CONDITIONS PRECEDENT TO FILING FORECLOSURE. 12. ON OR ABOUT _Oee 20_/.3_, SUMMARY JUDGMENT HEARING WERE HELD, RENDERING FINAL FORECLOSURE JUDGMENT IN FAVOR OF PLAINTIFF. 13. IN THE CASE AT BAR, THE PLAINTIFF FILED FORECLOSURE COMPLAINT AGAINST THE DEFENDANT, MAKING GENERAL ALLEGATION, WITHOUT PROOF, THAT THE PLAINTIFF HAD STANDING TO FILE TH E FORECLOSURE COMPLAINT AND THAT ALL CONDITIONS PRECEDENT TO FILING THE COMPLAINT HAVE BEEN MET. 1 ARGUMENT .14. THE DEFENDANT HAS A RIGHT TO RAISE ISSUES OF PLAINTIFFS’ FAILED TO PROVE ITS STANDING TO SUE DEFENDANT. THE DEFENDANT MAY BY GENERAL DENIAL AND IS NOT REQUIRED TO RAISE IT ( GENERAL DENIAL ) BY AFFIRMATIVE DEFENSE, WHICH NOW PLACE THE DEFENDANT IN POSTURE OF HAVING TO PROVE BY PREPONDERANCE OF EVIDENCE THAT THRESHOLD REQUIREMENT WERE NOT MET BY PLAINTIFF WHEN THE BURDEN WAS ON PLAINTIFF TO PROVE THRESHOLD ALLEGATIONS OF PLAINTIFF COMPLAINT. SEE THE AUTHORITY OF WOOTEN V. COLLINS 327 SO.2D 795 FLA 3°° DCA 1976, . 15. BECAUSE THE PLAINTIFF IS REQUIRED TO PROVRE EVERY MATERIAL ALLEGATION OF ITS COMPLAINT, HOWEVER, ONCE THE DEFENDANT HEREIN MAKES A SPECIFIC DENIAL OF A PARTICULAR ELEMENT OF THE CLAIM, PLAINTIFF HEREIN IS OBLIGATED AND REQUIRED TO PROVE THAT IT HAS MEET ITS BURDEN. SEE BERG V. BRIDLE PATH HOMEOWNERS ASS’N INC. 809 SO.2D 32, 34 FLA 4™ DCA 1995. BUT PLAINTIFF HAVE FAILED TO DO SO. 16. However, attached to plaintiff complaint lists 6 Oo pe Moet qe and ASS. tne. ,as the lender and Mers as the mortgagee. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint...because the exhibits to plaintiffs’ complaint conflicts with its allegations concerning standing and the exhibits does not show that plaintiff has standing to foreclose the mortgage, In the instant case, the plaintiff did not establish its entitlement to foreclose the mortgage as a matter of law. 17. The plaintiff subsequenly filed the original note, the note does not identify plaintiff as the lender or holder. 18. That when plaintiff attached the note and mortgage to its complaint as an exhibit which had defects, standing may be challenged. See Bac funding consortium Inc Isaoa / Atima v. Jean Jacques 28 so.3d 936 Fla. 2" DCA 2010. 19. The plaintiff was required in this case to show standing at the time of the complaint was filed. See Mclean v. J p mortgage chase bank Nat. Ass’n 79 so.3d 170 Fla. 4" DCA 2012 and failed to do so. Notably from plaintiffs’ motion for summary judgment, as well as an affidavit, in support of the summary judgment. The affidavit which was executed by a representative of plaintiff servicing after the law suit was filed, set forth amounts due and owing under the loan.. The affidavit further stated that the plaintiff is the holder and owner of the note and mortgage originally given to defendant. However, the affidavit did not specifically state when plaintiff became the owner of the mortgage and note, and did not state that plaintiff the person executing the deed does not hold one of these officers, an authorized resolution must be obtained and should be recorded. That in the instant case, because the assignment of mortgage purporting to convey the subject real property herein from MERS to Deuts che Bank W-A~_ was executed by Katha Sm/th and “AANS< Ohimi¢n ,aS non president, vice president or chief executive ofiicers of the corporation, the assignment of mortgage is ineffective on its face to convey title, as it was not executed in compliance with eith conveyance statute. See Dgg Devel. Corp. v. estate of Capponi 983 so.2d 1232 Fla 5" Deca 2008. SEE ATTACHED ASSIGNMENT. 3 ARGUMENT 24. In additional, under the merger doctrine , if MERS legal interest and the beneficiaries’ equitable interest are conveyed to the same person, the interest are deemed to have mergered, rendering the transfer and assignment invalid. Here, MERS is a nominee and agent for the plaintiff according to the mortgage, mers has the authority to assign the mortgage. 25. Generally, if the borrower returns his interest ( which borrower did by signing to Mers its beneficiary interest ) in the property to lender, such operates as merger of the two estates of interest, which merger results in discharge of mortgage and satisfaction of debt .see 557 so.2d 646 fla 4'" dea 1990. 26. Mers holds beneficial interest in the note and mortgage, The defendant gave Mers the explicit power to enforce the note and mortgage by foreclosure of the note according to the mortgage.MERS has become both beneficiary trustee, nominee and agent which causes the transfer and assignment of mortgage to be void. See axtell v. coons 89 so.2d 419 ( 1921 ) .it is improper for the same person to become the beneficiary and trustee and agent. 27. The general rule is that when one has an interest in property which he may alien or assign, that interest, whether legal or equitable, is liable for payment of his debt. Croom ,57 SO. AT 244-245. 28. The defendant assigned MERS the explicit power by a provision in the mortgage to enforce the note .MERS already was given the power to enforce the mortgage and note for its own benefit.. MERS can not create a lien on the property for its benefit and insert a clause . allowing the defendant to assign its beneficiary interest to MERS. MERS then exercised dominion and control over the mortgage, note and the real property. Therefore, such assignment of mortgage fails where the beneficiary exercise absolute dominion over the property of the defendant. As a result, the assignment from MERS fails under florida law where the beneficiary has the right to require the real property to convey the property because, in such instances, the beneficiary has, in effect, dominion and control over the real property .see HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT 233 F.2D 712 5™ CIR. 1956, Holding that no one can have an easement in his own property and therefore, for easement to exist the dominant and servient estate must be held by different owners.final judgment can not stand. . 29. MERS lacked authority and power of attorney to convey the mortgage and note to any one. as MERS was an agent and nominee for the principal lender. 30. As part of defendants’ answer to the complaint, the defendant denied the plaintiffs’ allegation that the conditions precedent have been meet. The mortgage herein was a valid contract and the lender / plaintiff was required to give notice to the defendant before acceleration and that notice must specify the default, the action required to cure the default and a date final for cure the default. The notice must also inform the defendant that the failure to cure the default before the specified date could result in acceleration or foreclosure. See par. 20 to 22 of the mortgage, 31. The defendant hereby deny under the penalty of perjury that he / she did not received the required notice and further declare that the plaintiff have not complied with any of the conditions precedent expressed in section 15, 20 TO 22 of the mortgage. 4 ARGUMENT 32. In the instant case, The defendants’ mortgage in which the plaintiffs’ cause of action is based. ( the mortgage ) Provided that no suit may be commenced until acceleration notice has been given pursuant to the terms of the mortgage. See par. 20 to 22 of the mortgage. The notice must be at lease 30 days prior to initiation of the suit. Par. 20 to 22 of mortgage, which states 30 day notice is required. The plaintiff failed to do so. 33. That based on the fact that plaintiff filed foreclosure suit prior to meeting the mortgage conditions precedent, the plaintiff lacked standing at the inception of filing this action and the court lacked jurisdiction to entertain the action because the filing of foreclosure was premature and is not a defeat that may be cured by the acquisition of standing after the case is filed . see progressive exp. V. megrath chir. 913 so 2d 1281 fla 2" dea 2005. 34, Progressive supra holds that the rule on relation back of amended pleadings did not permit provider to establish the right to maintain an action against insurer retroactively by acquiring standing to file lawsuit after the fact.. 35. In the case of voges v. ward 98 fla. 304, 123 so. 785 ( 19 29 ),The plaintiff held only one of 12 notes necessary to the replevin of collateral under a condition sales contract when the action for replevin was filed. Although the plaintiff acquired all of the notes before suit was filed, the trial court ruled that the suit was prematurely brought. The supreme court affirmed the trial courts’ ruling on this point, explaining that the general rule in action at*law is that the right of a plaintiff to recover must be measured by the facts as they exist when the suit was instituted. |D at 793. 36. In the case of konsulian v. busey bank n.a. case # 2 d 10- 2163, opinion filed June 1, 2011, 2" District court of appeal, Judge Black, On appeal, the appellant konsulian argued that the appellee busey filed suit prematurely and the court agreed and reversed the trials’ courts’ order granting summary judgment in favor of busey bank ( busey ). 5 ARGUMENT Lack of Notice of Default and Opportunity to Cure Prior to Acceleration 37. The requirement of notice prior to acceleration is both a condition and a covenant. Based on section 22 of the Mortgage and the definition of “lender" set forth on page I of the Mortgage, Amedas v. Brown, 505 So.2d 1091 (Fla. 2nd DCA 1987), a default notice from the "lender" is a condition precedent prior to filing this complaint, Dykes v Trustbank Savings. F.S,B., 567 So.2d 958 (Fla. 2™ DCA 1990); Gomez v. American Savings and Loan Ass'n, 515 So.2d 301 (Fla, 4" DCA 1987): Rashid v. Newberry Federal Savings and Loan Association, 502 So.2d 1316 (Fla. 3rd DCA 1987); Rashid v. Newberry Federal Savings and Loan Association, 526 So.2d 772 (Fla. 3rd DCA 1988). 38. The Mortgage provides that no suit may be commenced until acceleration notice has been given pursuant to the terms of the Mortgage. (Complaint, Mortgage, par. 22) That notice must be at least 30 days prior to the initiation of the suit. (Reference in par. 20 to par. 22 of the Mortgage which states 30 days notice required) Additionally, the notice that is required is that sent by first class mail to the defendants. (Complaint, Mortgage par. 15) The Plaintiff alleged all conditions precedent to foreclosure had been performed or occurred. (Complaint, para. 16). Plaintiff submitted a Florida Default Law Group, P.L. letter March 16, 2010 to the Defendants. This letter does not constitute the 30 day notice prior to filing of a foreclosure action as required by the mortgage. Plaintiff failed to allege when the letter was sent. Plaintiff also failed to allege that the letter was mailed by first class mail or otherwise delivered to the Defendants. In fact, if the letter was mailed by first class mail on the same date that is listed on the letter, then the Plaintiff filed this action prior to the expiration of the 30 days in violation of the contractual terms of the mortgage. Thus, the complaint must be dismissed. 39. Plaintiff is in further volation of the four corners of its contract. Acceleration remedies require notice, prior to acceleration, of (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceedings and sale of the property. (Complaint, Mortgage, para. 22). Plaintiff's attached letter fails to clearly violated defendant's rights to advance notice of acceleration. The plaintiff failed to advise the Defendants that the loan is in default and the actions available to cure the default. The Plaintiff's lack of 30 days notice prior to acceleration, lack of 30 days notice of default prior to filing of the foreclosure action, and lack of notice of default and the process whereby the defendant could cure said default are violations of material onditions precedent of the Mortgage. Therefore, the foreclosure judgment and sale must be vacated and set aside. 6 ARGUMENT 40. ON SEPT 10, 2013, THE GENERAL MAGISTRATE MADE TIMELY NOTICE TO ALL PARTIES THAT FAILURE TO APPEAR AT STAUS HEARING MAY RESULT IN DISMISSAL OF THE CASE. SEE ATTACHED RECOMMENDATION AND REPORT. 41. THE STATUS HEARING WAS HELD ON SEPT 26, 2013 AND PLAINTIFF FAILED TO APPEAR. AS A RESULT THE MAGISTRATE RECOMMENDED THAT THE CASE BE DISMISSED AND ISSUED AN ORDER TO THE SAME. HOWEVER, ON SEPT 26, 2013, THE HONORABLE JUDGE SCOTT POLODNA, ADOPTED THE ORDER REPORT AND RECOMMENDATION OF GENERAL MAGISTRATE, DONE AND ORDERED ON JAN 7, 2014. SEE THE ATTACHED ORDER AND REPORT. 42. THAT ON DEC 9™ 2013, THIS COURT MADE A REPORT AND RECOMMENDATION OF THE GENERAL MAGISTRATE RENDERING FINAL JUDGMENT OF FORECLOUSRE CONFICTING WITH THE SEPT 26, 2013 MAGISTRATE REPORT AND RECOMMENDATION. THE SEPT 26, 2013 REPORT RECOMMENDED THAT THE CASE BE DISMISSED. THE EARLY ORDER DOES NOT SUPPORT FINAL FORECLOSURE JUDGMENT AND SALE., BUT RECOMMENDED DISMISSAL. 43. THE COURTS’ DEC 9, 2013, REPORT AND RECOMMENDATION OF GENERAL MAGISTRATE ON FINAL JUDGMENT OF FORECLOSURE WAS ABSOLUTELY ENTERED IN ERROR AND IS VOID, AS IT WAS NO BASIS FOR SUCH CONCLUSIONS. 44. THE COURT LACKED JURISDICTION TO ENTER THE SUBJECT ORDER ON DEC 9, 2013, AND LACKED JURISDICTION TO CORRECT ITS OWN JUDGMENT AT ANY TIME. THE TRIAL COURT NOR PLAINTIFF NEVER MOVED FOR REHEARING OF THE PRIOR ORDER AND NEVER FILED AN APPEAL. OR MOTION UNDER 1.540. RESPECTFULLY, THE FLORIDA SUMREME COURT HAS BEEN VERY CLEAR IN RULING THAT A TRIAL COURT LACKS JURISDICTION TO CORRECT ITS OWN JUDGMENT AT ANYTIME. SEE SHELBY MUTUAL INS. CO. V. PEARSON 236 SO2D 1 Fla 1970; see also Corzo Trucking Corp. v. West 974 so.2d 627 Fla 4" Dea 2008. 45. THIS COURT MAY THINK THAT THE SEPT 2013 ORDER WAS SOME SORT OF CLERICIAL ERROR THAT JUSTIFIED SUA SPONTE ACTION UNDER 1.540. RESPECTFULLY, THE LAW FLATLY REJECTS SUCH A POSITION. SEE MOFORIS V. MOFORIS 977 SO.2D 786 FLA 4" DCA 2008. 46. THE ORDER WAS ENTERED IN ERROR, WITHOUT FACT FINDING, WITHOUT A HEARING , AND WITHOUT EVIDENCE. THE COURTS’ FINAL JUDGMENT OF FORECLOSURE AND SALE WAS ENTERED IN ERROR, WITHOUT EVIDENCE AND WITHOUT GIVING DEFENDANT A CHANCE TO BE HEARD, IS CLEARLY IMPROPER. THE FACT FINDING CAN NOT BE MADE SUA SPONTE OR EX PARTE AND THEY CAN NOT BE MADE WITHOUT HEARING. THE ORDER MUST BE REVERSED. 47, BASED ON THE DEMONSTRATED FRAUD THAT PLAINTIFF DasdSA2 Bork V. R- »>HAVE PERPETRATED UPON THE COURT, THE COURT SHOULD SANCTION THE PLAINTIFF HEREIN BY STRIKING ITS FORECLOSURE COMPLAINT AND DECLARE VOID THE FINAL FORECLOSURE JUDGMENT AND SALE FOR THE FRIVOLOUS MOTIONS AND COMPLAINT AND FOR FRAUDULENTLY CAUSING DELAY AND INTENTIONALLY VIOLATING THE MORTGAGE CONTRACT BETWEEN PLAINTIFF AND DEFENDANT. 48. THE COURT HAS THE AUTHORITY TO ENTERTAIN THIS MOTION BROUGHT UNDER THE RULE 1.540 b 3 FOR A CLAIM OF INTRINSIC FRAUD ON THE COURT AT ANY TIME AS INDEPENDENT ACTION CHALLENGING THE FINAL JUDGMENT. SEE CERNIGLIA V. CERNIGLIA 679 SO.2D 1160 FLA 1996. 49. WHEREFORE, Defendants requests the Court order striking the Plaintiffs’ foreclosure complaint and final foreclosure judgment and sanction the plaintiff by declaring default against plaintiff bases on the reasons stated herein and other relief as the court deem just and proper.. Respectfully Submitted, Deunls Frnrcs Hox sec willow oy. KIS5- VERIFICATION Els BS47y3 I Dennls Jornroe , AM THE DEFENDANT IN THE ABOVE ACTION AND I HAVE READ THE FOREGOING MOTION AND ITS CONTENTS AND ALL IS TRUE AND CORRECT AND I HAVE PERSONAL KNOWLEDGE AND DEALINGS OF THE SAME, AND THIS STATEMENT IS MADE UNDER THE PENALTY OF PERJURY ON Ape dl L2 20_ 1 Yonkh@s Tan v« Dana/t Sorr=3 CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail, this 12 day of _ 4p, 20_/¢% to plaintiffs’ attorney at obser tson - Asch vir aseke.. 6YO4q congress’ & é oo don Pls 334%) Dennds Ja £5 CFN 2010040649 Bk 03963 Pas 1384 - 1385? (2pas) ‘ DATE? 03/23/2010 08:42:44 An MALCOM THOMPSON, CLERK OF COURT OSCEOLA TY Prepared y and return to: RECORDING FEES 18.50 Shapiro & Fishman, LLP . 10004 N. Dale Mabry Highway, Suite 112 Tampa, FL 33618 S&F No.: 10-169967 eo This area above this line is for the use of recording official ASSIGNMENT OF MORTGAGE Mortgage Electronic Registration Systems, Inc. as Nominee for Pope Mortgage and Associates, Inc., (""Assignor"), C/O Shapiro & Fishman, LLP, 10004 N. Dale Mabry Highway, Suite 112, Tampa, FL 33618, has granted, bargained, sold, assigned, transferred and set over, and by these presents does grant, bargain, sell, transfer and set over unto Deutsche Bank Nation: ist Company, as Trustee for American Home Mortgage Assets Tru: Mortgage-Backed Pass-Through Certificates, Series 2007-1, ("Assign hapiro & Fishman, LLP, 10004 N. Dale Mabry Highway, Suite 112, Tampa, FL 33618, ing described Mortgage(s) recorded in the Public Records of Osceola County, St: tt Elo ida, together with the note of obligation described in said Mortgage(s), and the mon dui bi come, due thereon, with interest as therein provided, pursuant to section 701.02; -oe Date of Mortgage: October 27, whe Mortgage Recording Date: November 17, Clerk's File Number: 2006-275961 OY Book Number: 3335 Page Number: 1827 Legal Description: . LOT 38, BLOCK 195, BUENAVENTURA LAKES SUBDIV! ISION, UNIT 9, 7TH ADDITION, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 5, PAGES 137 THROUGH 138, OF THE PUBLIC RECORDS OF OSCEOLA COUNTY, FLORIDA. Origina: Mortgagors: Dennis Anthony James and Winnifred Patericia James, His Wife IN WITNESS WHEREOF, Assignor has caused these presents to be executed this DT __ day of _Fotuney _, 2010. WA01R2019 CCNHIONANNANGAG Dana 1 nf 9 RAAnL2ORWDana12QA Mortgage Electronic Registration Systems, Inc. as Nominee for Pope Mortgage and Associates, » bike bid» Inc. (CORPORATE SEAL) state oF Florid: COUNTY OF Duvaljss. . I HEREBY CERTIFY, That on this day personally appeared before me, an officer duly authorized to administe: oaths and take acknowledgements of the above referenced d uly authorized signatories of and who are personally known to me and did take an oath and who are to me well known to be the persons described herein and who executed the foregoing Assignment of Mortgage and duly acknowledged before me an ted the same for the purposes therein expressed as the act and deed of said corporation. ) IN WITNESS e hereunto set my hand and affixed my official seal, said County and State, this aS ly of , 2010 aS Lyon *NOTARY PUB Name of Notary: cy) ‘Notary Public State of Florida © Genny x DD904551 Expires 03/16/2012 Commission NO. My Commission Expires: %-\le- COT2 S&F No.: 10-169967 (SEAL} Dane 9 nf 9 PAARL 2RWDana12AQR CENHONANNANGAG IN THE CIRCUIT COURT OF THE NINTH . -> JUDICIAL CIRCUIT IN AND FOR é Cnkse \ iy ye Re. } Ke OSCEOLA COUNTY, FLORIDA > Case Number: oe ti C t { L Division: Plaintiff, vs. qj pe va ‘iS py nhc ne Sevit e% XU; 62 Defendants. / / REPORT AND RECOMMENDATION OF GENERA! L Se TES This cause came to be heard before the under signed General Magistrate upon the Plaintiffs / Defendant’s Motion. The General Magistrate has authorit y to hear this matter pursuant to Rule 1.490, Florida Rules of Civil Procedure. An Order of Referral was served upon the parties and no party made a timely objection to the referral. The General Magistrate heard the testimony and review of the case pres ented and therefore makes the followin g Findings of Fact and Conclusions of Law: FINDINGS OF FACT & CONCLUSIO i - NS OF LAW aN * ory Ave S GQ pye ov © ch fy cl KN SA oN > \&e Ge A osteo Sea Qe Sax chet8 Gio, clo d q\ t Lo \\ 2 5 Me bf e y Woe Ook Ke . Ve CO ORK Sv PVNC ~\ We RACE yy hare’— dS the Ce of, 7 BatyCc V Val iG 24 vr Dre mk VN J Ve ow y Nn WAC Eb CsC we Away oe «cl RECOMMENDATION OF THE MAGISTRATE Based upon the above-stated Findings of Fact and Conclusions of Law, the undersig ned makes the following recommendation: tA. That the above-referenced motion be GRANT) ED and the attached proposed order be enteredby the Court. [ ] That the above-referenced motion be DENIED and the attached propose d order be entered by the Court. ——fFfFPlaintiff [ ] Defendant attorney of record will be responsible for serving this Report and Recommendation of the General Magistrate immediately and the Order on all parties after the Order has been signed by Judge, including the filing of a certific ate of service stating that service was completed per Florida Rules of Civil Proced ure for each. REPORTED AND RECOMMENDED this Ac day of >& wh , 2013. T BY: General Magistrate IN ACCORDANCE WITH RULE 1.490(H), FLORIDA RULES OF CIVIL PROCE DURE SHOULD YOU WISH TO SEEK REVIEW OF THIS REPORT AND RECOM MENDATION, YOU MUST FILE EXCEPTIONS WITHIN 10 DAYS OF SERVICE OF THIS REPORT (UNLESS ALL PARTIES WAIVE THE EXCEPTI ON PERIOD) . YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A RECORD § UFFICIENT TO SUPORT YOUR EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDIN ARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDING S. THE PARTY SEEKING REVIEW WILL BE RESPONSIBLE FOR HAVING THE TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT’S REVIEW. A COPY OF EXCEPTIONS MUST BE SUBMITTED TO GENERAL MAGISTRATE AT THE SAME TIME AS FILING. Court reporter present? Yes [ ] (state name) No[ ] IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA dD eI. pe ne Sor Case Number: Division: Plaintiff VS. a Le aAyn —\ yf Defendants ORDER ON THIS CAUSE came before the Court and the Court having reviewing the Court file. It is hereby ORDERED as follows: , VAs Cone s\ve\\ \pw CLG HASSE EI 2 & Pv Ov wh Ak GLC ACA © ps Sy C 3 Cra he S\ cA, Wie ¢ uku™ > So a plaintie ] Defendant attorney of record will be responsible’ fOrs 3 serving this Order on all parties after the Order has been signed by Judge, including the filing of a certificate of service stating that service was completed per Florida Rules of Civil Procedure. DONE AND ORDERED in Chambers at Kissimmee, Osceola County Florida, this day of » 2013. Circuit Court Judge 1 Service List 2011-CA-003872 Robertson, Anschutz & Schneid, P.L. 6409 Congress Avenue, Suite 100 Boca Raton, FL 33487 Dennis Anthony James 403 Sea Willow Drive Kissimmee, FL 34743 Winnifred Patericia James 403 Sea Willow Drive Kissimmee, FL 34743 The Buenaventura Lakes Community Association, Inc. c/o Beulah Farquharson, R.A. 333 Blue Bayou Drive Buena Ventura Lakes, FL 34743 Sent to above parties 12/5/13 Ag Ct IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2011 CA 003872 MF T DEU' ITSCH SRA REE BANK BANK NATI NAMOONAL NAL TRUS T COMP Wie ee se 2 Sev yh \ So alee Nos N Rear i he clcled a Lio \\2 Xe cy oll ks \: or 0 ork VS Cr pies TYAS \ YS N3 HOt AWA CACQYSMALAG & C tke, Ce as; Pic xv Ssh Cue. 3 nal Dene as SAAS VE CW he wctcct click Elvis Le ak Ape AW ynice cl RECOMMENDATION OF THE MAGISTRATE Based upon the above-stated Findings of Fact and Conclusions of Law, the undersigned makes the following recommendation: : A That the above-referenced motion be GRANTED a: ind the attached proposed order be ~~on entere y the Court. { ] That the above-referenced motion be DE NIED and the attached proposed order be entered by the Court. — os ef paincit [ ] Defendant attorney of record will be responsible for serving this Report and Recommendation of the General Magistrate immediately and the Order on all parties after the Order has been signed by Judge, including the filing of a certificate of S service stating that service was completed per Florida Rules of Civil Procedure for each. REPORTED AND RECOMMENDED this Ac day of ek 4S , 2013. BY: General Magistrate IN ACCORDANCE WITH RULE 1.490(H), FLORIDA RULES OF CIVIL PROCEDURE SHOULD YOU WISH TO SEEK REVIEW OF THIS REPORT AND RECOMMENDATION, YOU MUST FILE EXCEPTIONS WITHIN 10 DAYS OF SERVICE OF THIS REPORT (UNLESS ALL PARTIES WAIVE THE EX CEPTION PERIOD). YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A REC: ORD SUFFICI ENT TO SUPORT YOUR EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECOR D ORDINARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCE EDINGS. THE PARTY SEEKING REVIEW WILL BE RESPONSIBLE FOR HAVIN G THETETTRANSCRIPT PREPARED IF NECESSARY FOR THE COURT’ S REVIEW . A COPY OF EXCEPTIONS MUST BE SUBMITTED TO GENERAL MAGIS TRATE AT THE SAME TIME AS FILING. Court reporter present? Yes [ J (state name) No[ ] IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA De cdsache Be nk Case Number: et a QR wo ao a Division Plaintiff VS. (oc \ ys Nw WOMEN 5, ALL Defendants ORDER ON THIS CAUSE came before the Court and the Court having reviewing the Court file. It is hereby ORDERED as follows: Anse Coos s\well\ We Chsnss+“ ¢ Pv owe Lb Geek wok < 2, SM> se 3 aX ck LR S\ cA ky Wa awn pa rain ] Defendant attorney of record will be responsible forserving this Order on all parties after the Order has been signed by Judge, including the filing of a certificate of service stating that service was completed per Florida Rules of Civil Procedure. DONE AND ORDERED in Chambers at Kissimmee, Osceola County Florida, this 3B cay of ln 4. ror, ‘ourt Judge Service List 2011-CA-003872 Robertson, Anschutz & Schneid, P.L. 6409 Congress Avenue, Suite 100 Boca Raton, FL 33487 ae Dennis Anthony James 403 Sea Willow Drive Kissimmee, FL 34743 SO) - 2) _ BL Winnifred Patericia James 403 Sea Willow Drive Phen? GR Fl — bye / Kissimmee, FL 34743 The Buenaventura Lakes Community Association, Inc. c/o Beulah Farquharson, R.A. 333 Blue Bayou Drive Buena Ventura Lakes, FL 34743 Sent to above parties 1/10/14 C Ayrct- Wd Bi CER Ge! gm eet IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2011 CA 003872 MF 2co Ran eo ar, DEUTSCHE BANK NATIONAL TRUST COMPANY tw am Rap Bo Plaintiff ca ems oO pois AS0%: “52.= One AO Ann Boo 2 Son VS. 222 AGO Sos AAO. “~cy oem DENNIS ANTHONY JAMES et al, Defendant ORDER SETTING CASE FOR STATUS HEARING REGARDING CASE STATUS YOU ARE HEREBY NOTIFIED that a STATUS HEARING in the above cause will be heard before the Presiding Foreclosure Judge/General Magistrate on: Thursday, September 26, 2013 at 11:00 a.m. at Hearing Room 6E (6" floor) at 2 Courthouse Square, Kissimmee, FL 34741. Plaintiff/Counter-Plaintiff’s failure to appear may result in dismissal of the case. The parties shall be prepared to give the Court the status of the case at the time of the hearing. If the case is disposed of by dismissal or Final Judgment of all parties prior to the hearing, the hearing will be cancelled. No telephonic appearances allowed . DONE AND ORDERED in Chambers at Kissimmee, Osceola County, Florida this | Q day of September, 2013. JOHN E. JORDAN Circuit Civil Judge CAORSHR CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true copy of the foregoing has been furnished via U.S. Mail to: Shapiro, Fishman & Gache, LLP, Attorney for Plaintiff, 4630 Woodland Corporate Blvd. Suite 100, Tampa, FL 33614; Dennis Anthony James, Defendant, 403 Sea Willow Drive, Kissimmee, FL 34743; Winnifred Patericia James, Defendant, 403 Sea Willow Drive, Kissimmee, FL 34743; The Buenaventura Lakes Community Association, Inc,, c/o Beulah Farquharson, R.A., 333 Blue 9 Bayou Drive, Buena Ventura Lakes, FL 34743; this AQ__ day of September, 2013. pt/Court Program Specialist If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the ADA Coordinator, Court Administration, Osceola County Courthouse, 2 Courthouse Square, Suite 6300, Kissimmee, Florida 34741, (407) 742-2417, at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711. CAORSHR IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2011 CA 003872 MF DEUTSCHE BANK NATIONAL TRUST COM PANY Plaintiff VS. 7 oF aa a DENNIS ANTHONY JAMES . et al. Defendants SS REPOTRT AND RAS REC RE OMM OMMEND ENDATI ATION OF OF GENE GENERAL RAL MAGI MAGISTRA STRATE TE ON JUDGE MENT OF ON FINA FINAL — TEE FORE CLOSSURE MALY URE This cause has come to be heard before the undersigned General Magistrate. The Genera! | Magistrate has authority to hear this matter pursu ant to Rule 1.490, Florida Rules of Civil P: rocedure. An Order of Referral was served ui pon the parties and no party made a timely objection to the referral. The General Mai gistrate heard the testimony presented and has otherwise been advised in the premises and theref ore makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT & CONCLUSIONS OF LAW [ X] The General mag: istrate and the Court have j