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I I APPENDIX I A Pino v. The Bank ofNew York Mellon, 57 So. 3d 950 (Fla. 4th DCA 2011) B Defendant, Roman Pino's Rule 1.540(b) Motion to Strike the Notice of ,I Voluntary Dismissal and Motion for Dismissal with Prejudice for Fraud Upon the Court I ,I I I -I I I I I I I 1 I -I 26 -I

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I I APPENDIX

I A Pino v The Bank ofNew York Mellon 57 So 3d 950 (Fla 4th DCA 2011)

B Defendant Roman Pinos Rule 1540(b) Motion to Strike the Notice of

I Voluntary Dismissal and Motion for Dismissal with Prejudice for Fraud Upon the Court

I I

I I -I I I I I I I 1 I -I

26

-I

I WestLaw

I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

I I

District Court of Appeal of Florida Fourth District

Roman PINO Appellant v

The BANK OF NEW YORK MELLON Appellee

I No 4010-378 March 30 2011

I Background Purported holder of note brought

I foreclosure action against mortgagor The Circuit Court Fifteenth Judicial Circuit Palm Beach County Meenu Sasser J denied mortgagors moshytion to strike voluntary dismissal in purported holdshyers prior foreclosure action and for dismissal of current action Mortgagor requested appeal

I Holding On grant of clarification the District Court of Appeal en banc Warner J held that mortgagor failed to establish that he was adversely

I affected through notice of voluntary dismissal in prior action

I Affirmed question certified

Polen J filed dissenting opinion

I West Headnotes

[1] Mortgages 266 ~475

I I 266 Mortgages

266X Foreclosure by Action 266X(J) Trial or Hearing and Reference

266k475 k Dismissal or nonsuit before trial Most Cited Cases

I Purported note-holder did not obtain any type

of affirmative relief through grant of its motion for voluntary dismissal in its prior foreclosure action

I against mortgagor as would support mortgagors request for relief from such notice of dismissal in purported note-holders subsequent foreclosure ac-

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Page 1

tion

[2] Mortgages 266 ~475

266 Mortgages 266X Foreclosure by Action

266X(J) Trial or Hearing and Reference 266k475 k Dismissal or nonsuit before

trial Most Cited Cases Mortgagor failed to establish in purported

note-holders subsequent foreclosure action that he was adversely affected through grant of purported note-holders motion for voluntary dismissal in prishyor foreclosure action as required for relief from noshytice of voluntary dismissal in prior action mortshygagor may have actually benefited by forestalling foreclosure Wests FSA RCP Rule 1540(b)

[3] Pretrial Procedure 307A ~520

307 A Pretrial Procedure 307 AIll Dismissal

307AIII(A) Voluntary Dismissal 307Ak520 k Vacation Most Cited Cases

A notice of voluntary dismissal constitutes a proceeding within the meaning of the rule allowshying a court to relieve a party from a fmal judgment decree order or proceeding Wests FSA RCP Rule 1540(b)

[4] Judgment 228 ~336

228 Judgment 2281X Opening or Vacating

228k336 k Nature and scope of remedy Most Cited Cases

The fact that a defendant may have incurred atshytorney fees and costs is not an adverse impact reshycognized as meriting relief under the rule allowing a court to relieve a party from a fmal judgment deshycree order or proceeding Wests FSA RCP Rule 1540(b)

[5] Pretrial Procedure 307 A ~46

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I 307 A Pretrial Procedure

307All Depositions and Discovery 307AII(A) Discovery in General

307 Ak44 Failure to Disclose Sanctions 307 Ak46 k Dismissal or default judgshy

I ment Most Cited Cases

Pretrial Procedure 307 A ~531

I 307 A Pretrial Procedure

I 307 AlII Dismissal

307AIII(B) Involuntary Dismissal 307 AIII(B) I In General

307Ak531 k Nature and scope of remshy

I edy in general Most Cited Cases

Dismissal is a remedy to be used only in the most extreme cases as generally speaking allegashy

I tions of inconsistency nondisclosure and even falseness are best resolved by allowing the parties to bring them to the jurys attention through cross examination or impeachment rather than by disshymissal of the entire action

I 951 Enrique Nieves III and Chris T Immel of Ice Legal PA West Palm Beach for appellant

I Nancy M Wallace Katherine E Giddings and Wilshyliam P Heller of Akerman Senterfitt Tallahassee and Fort Lauderdale for appellee

I ENBANC

I ONMOTION FOR CLARIFICATION WARNERJ

I We grant the motion for clarification withdraw

our previously issued opinion and substitute the folshylowing in its place

I The defendant in a mortgage foreclosure action

filed by BNY Mellon appeals a trial courts denial of his motion under Florida Rule of Civil Procedure

I I 540(b) to vacate a voluntary dismissal The notice was filed after the defendant moved for sanctions against the plaintiff for filing what he alleged was a fraudulent assignment of mortgage Because the no-

I

tice of voluntary dismissal was filed prior to the plaintiff obtaining any affirmative relief from the court we affIrm the trial courts order

BNY Mellon commenced an action to foreclose a mortgage against the defendant The mortgage atshytached to the complaint specified another entity Silver State Financial Systems as lender and still another Mortgage Electronic Registration Systems as mortgagee The complaint alleged that BNY Mellon owned and held the note and mortgage by assignment but failed to attach a copy of any docushyment of assignment At the same time it alleged the original promissory note itself had been lost desshytroyed or stolen The complaint was silent as to whether the note had ever been negotiated and transferred to BNY Mellon in the manner provided by lawFNI

FNI See sect 6732011(2) Fla Stat (2010) (if instrument is payable to an identified person negotiation requires transfer of possession of the instrument and endorseshyment by holder)

The defendant initially sought dismissal for failure to state a cause of action arguing that in light of the claim of a lost instrument the absence of an assignment of mortgage was a critical omisshysion BNY Mellon responded by amending the complaint only to attach a new unrecorded assignshyment which happened to be dated just before the original pleading was filed

In response to this amendment defendant moved for sanctions He alleged that the newly proshyduced document of assignment was false and had been fraudulently made pointing to the fact that the person executing the assignment was employed by the attorney representing the mortgagee and the commission date on notary stamp showed that the document could not have been notarized on the date in the document The defendant argued that the plaintiff was attempting fraud on the court and that the court should consider appropriate sanctions such as dismissal of the action with prejudice Con-

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I current with the filing of this motion the defendant scheduled depositions of the person who signed the assignment the notary and the witnesses named on the document-all employees of Florida counsel for BNY Mellon952 -for the following day Before

I the scheduled depositions BNY Mellon filed a noshytice of voluntary dismissal of the action

I Five months later BNY Mellon refiled an identical action to foreclose the same mortgage

I The new complaint no longer claimed the note was lost and attached a new assignment of mortgage dated after the voluntary dismissal In the original dismissed action the defendant filed a motion unshyder rule 1540(b) seeking to strike the voluntary dismissal in the original action on the grounds of

I fraud on the court and for a dismissal of the newly

I filed action as a consequent sanction requesting an evidentiary hearing The trial court denied the moshytion without an evidentiary hearing essentially holding that because the previous action had been

I voluntarily dismissed under rule 1420 the court lacked jurisdiction and had no authority to consider any relief under rule 1540(b)

We affirm the trial courts refusal to strike the notice of voluntary dismissal Neither rule 1540(b)

I nor the common law exceptions to that rule allow a

I defendant to set aside the plaintiffs notice of volunshytary dismissal where the plaintiff has not obtained any affirmative relief before dismissal

I [I] Rule 1420(a) permits a plaintiff to dismiss

an action without order of the court at any time before a motion for summary judgment is heard or before retirement of the jury or submission to the

I I

court if the matter is tried non-jury Our courts have consistently construed this rule as meaning that at any time before a hearing on a motion for summary judgment a party seeking affirmative reshylief has nearly an absolute right to dismiss his entire action once without a court order by serving a noshytice of dismissal Ormond Beach Assocs Ltd v Citation Mortg Ltd 835 So2d 292 295 (Fla 5th DCA 2002) see also Meyer v Contemporary

I Broadcasting Co 207 So2d 325 327 (Fla 4th

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DCA 1968) The courts have carved out narrow exshyceptions to this entitlement

The only recognized common law exception to the broad scope of this rule is in circumstances where the defendant demonstrates serious prejushydice such as where he is entitled to receive afshyfrrmative relief or a hearing and disposition of the case on the merits has acquired some substantial rights in the cause or where dismissal is inequitshyable See Romar Inl Inc v Jim Rathman ChevshyroletCadillac Inc 420 So2d 346 (Fla 5th DCA 1982) Visoly v Bodek 602 So2d 979 (Fla 3d DCA 1992)

Ormond 835 So2d at 295 In Visoly the court granted a motion to strike the complaint as a sham Finding that rule 1150(a) operated much like a moshytion for summary judgment the court concluded that the plaintiff could not voluntarily dismiss his complaint pursuant to rule 1420(a) where the trial court had granted the motion to strike which was equivalent to the granting of a motion for summary judgment

The most applicable common law exception to the right to a voluntary dismissal was applied in Seshylect Builders of Florida Inc v Wong 367 So2d 1089 (Fla 3d DCA 1979) There the court affirmed the trial courts striking of a notice of voluntary disshymissal where the plaintiff sought to perpetrate a fraud by the filing of the notice of voluntary disshymissal Select Builders had filed suit to expunge an injunction against a condominium developer granshyted in Federal Court in Illinois and improperly filed in the public records of Dade County The trial court issued an order expunging the document and enjoining the filing of any other like documents without domesticating the judgment in Florida Later it was discovered that Select Builders had perpetrated a fraud upon 953 the court in obtainshying the order expunging the document The trial court vacated its prior order and the appellees moved for sanctions and fees The court also ordered Select Builders to take steps to preserve the status quo and to make payment of monies it reshy

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I ceived in connection with the sale of some of the property subject to the injunction to a third party Select Builders then filed a notice of voluntary disshymissal which the trial court struck to retain jurisshydiction over the case

I I The appellate court affirmed concluding that

the court correctly retained jurisdiction to prevent a fraud on the court The plaintiff had obtained the affirmative relief it sought its actions in the cause

I in the trial court may have been fraudulent on the court and it certainly was within its inherent power (as an equity court) to protect its integrity Id at 1091 The court distinguished other cases in which the plaintiffs right to take a voluntary dismissal was deemed absolute First the plaintiff in the

I cited cases had not received affirmative relief from an equity court and secondly no question of fraud on the court was involved Id

I In Select Builders the plaintiff obtained affirmshy

I ative relief by the granting of the suspect injuncshytion and it had obtained such relief by fraud Comshyparing the facts of Select Builders to this case we fmd that the BNY Mellon had not obtained any

I type of affirmative relief Even if the assignment of mortgage was fraudulent in that it was not exshyecuted by the proper party it did not result in any relief in favor of BNY Mellon Select Builders is thus distinguishable from the present case In Bevan

I v DAlessandro 395 So2d 1285 1286 (Fla 2d DCA 1981) the court likewise distinguished Select

I Builders on the grounds that the plaintiff had reshyceived affIrmative relief to which he was not enshytitled and sought to avoid correction of the trial courts error by taking a voluntary dismissal No such circumstance is present in this case

I I [2][3] The appellant argues that rule 1540(b)

also provides a method to seek relief from a notice of voluntary dismissal We disagree that the deshyfendantappellant may utilize that rule where the defendant has not been adversely affected by the voluntary dismissal Rule 1540(b) allows a court to relieve a party from a fmal judgment decree orshy

I der or proceeding based upon any of fIve grounds

I I

set out in the rule (1) mistake inadvertence surshyprise or excusable neglect (2) newly discovered evidence (3) fraud or other misconduct of an adshyverse party (4) that the judgment or decree is void or (5) that the judgment or decree has been satisfIed or released A notice of voluntary dismissal constishytutes a proceeding within the meaning of the rule See Miller v Fortune Ins Co 484 So2d 1221 1224 (Fla1986) Therefore the rule may be inshyvoked even though for all other purposes the trial court has lost jurisdiction over the cause d Inshydeed in Shampaine Industries Inc v South Broward Hospital District 411 So2d 364 368 (Fla 4th DCA 1982) approved by the supreme court in Mille~ we held Rule 1540(b) may be used to afford relief to all litigants who can demonshystrate the existence of the grounds set out in the Rule

[4] The rule however is limited to relieving a party of a judgment order or proceeding Relieve means [t]o ease or alleviate (pain distress anxishyety need etc) to ease (a person) of any burden wrong or oppression as by legal means The Ranshydom House Dictionary of the English Language 1212 (1967) A defendant may obtain such relief when a plaintiff has obtained a ruling that has adshyversely impacted the defendant Here the defendant has not been adversely impacted by a 954 ruling of the court The fact that a defendant may have inshycurred attorneys fees and costs is not an adverse impact recognized as meriting relief See Servo Exshyperts LLC V Northside Air Conditioning amp Elec Servo Inc 2010 WL 4628567 (Fla 2d DCA 2010) Therefore because the defendant has not suffered an adverse ruling or impact from the notice of volshyuntary dismissal he is not entitled to seek relief pursuant to the rule

[5] The dissent is certainly correct that a court possesses the authority to protect judicial integrity in the litigation process However the cases cited in support of a court exercising such authority all inshyvolved the court granting a motion for involuntary dismissal where the plaintiff had engaged in deceitshy

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ful conduct during a still pending case See Ramey

I v Haverty Furn Co 993 So2lt1 1014 1020 (Fla 2d DCA 2008) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) Morgan v Campshybell 816 So2d 251 253 (Fla 2d DCA 2002) In

I each of those proceedings the defendant moved for

I the sanction of dismissal of an ongoing proceeding based upon fraud on the court That term has been described as follows

I A fraud on the court occurs where it can be demonstrated clearly and convincingly that a party has sentiently set in motion some unconshyscionable scheme calculated to interfere with the

I judicial systems ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposshying partys claim or defense

I Aoude v Mobil Oil Corp 892 F2d I I 15 I I 18

(I st Cir1989) Dismissal is a remedy to be used

I only in the most extreme cases as [g]enerally speaking allegations of inconsistency nondisshyclosure and even falseness are best resolved by alshylowing the parties to bring them to the jurys attenshy

I tion through cross examination or impeachment rather than by dismissal of the entire action Granados v Zehr 979 So2d I ISS 1158 (Fla 5th DCA 2008) (emphasis added)

I Here we do not view it as an appropriate exershy

cise of the inherent authority of the court to reopen

I a case voluntarily dismissed by the plaintiff simply to exercise that authority to dismiss it albeit with prejudice Only in those circumstances where the defendant has been seriously prejudiced as noted

I in Romar International should the court exercise its inherent authority to strike a notice of voluntary dismissal The defendant in this case does not alshy

I lege any prejudice to him as a result of the plaintiffs voluntary dismissal of its ftrst lawsuit Inshydeed he may have benefttted by forestalling the foreclosure

The appropriate procedure is to follow Rule

I 1420 Upon the voluntary dismissal Pino would be

I I

entitled to his costs and possibly his attorneys fees See Fleet Sens Corp v Reise 857 So2d 273 (Fla 2d DCA 2003) The court can require payment as a precondition to the second suit See Fla R Civ P 1420(d) Moreover a referral of the appellees atshytorney for a violation of the Code of Professional Responsibility for ftling the complaint with the alshyleged false affidavit is in orderFN2

FN2 Notably appellees attorneys on apshypeal Akerman Sentemtt were not inshyvolved in the proceedings giving rise to the allegations of misrepresentation and fraud upon the court

We conclude that this is a question of great public importance as many many mortgage foreshyclosures appear tainted with suspect documents The defendant has requested a denial of the equitshyable right to foreclose the mortgage at all If this is an available remedy as a sanction after a voluntary dismissal it may dramatically affect the mortgage foreclosure crisis in this 955 State Accordingly we certify the following question to the Florida Sushypreme Court as of great public importance

DOES A TRIAL COURT HA VE JURISDICTION AND AUTHORITY UNDER RULE 1540(b) Fla R Civ P OR UNDER ITS INHERENT AUshyTHORITY TO GRANT RELIEF FROM A VOLshyUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE REshyLIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT

Affirmed

GROSS CJ STEVENSON TAYLOR MAY DAMOORGIAN CIKLIN GERBER LEVINE and CONNER JJ concur HAZOURI J recused POLEN J dissents with opinion

POLEN J dissentingFN3

FN3 This dissent was actually written by

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I Judge Gary M Farmer who retired from this court December 31 2010 As Judge Farmer can no longer participate in this matter and since I concurred with his proshyposed dissent I now adopt in total his writshy

I ing Although I thoroughly agree with this dissent I want the record to reflect that the words are those of Judge Farmer

I Rule 1420(a)(l) allows a plaintiff to voluntarshy

I ily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment Initially in Randle-Eastern Ambulance Service v Vasta 360 So2d 68 (Fla1978) the court held that such a dismissal took the case out of the power of the court for all purposes explaining

I I The right to dismiss ones own lawsuit during

the course of trial is guaranteed by Rule 1420(a) endowing a plaintiff with unilateral authority to block action favorable to a defendant which the

I trial judge might be disposed to approve The efshyfect is to remove completely from the courts conshysideration the power to enter an order equivalent in all respects to a deprivation of jurisdiction If

I the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way it follows that he has no jurisdiction to reinstate a dismissed proceeding The policy reasons for this consequence support its apparent rigidity

I 360 So2d at 69 But later in Miller v Fortune

I Insurance Co 484 So2d 1221 (Fla1986) the court retreated from its statement in Randle-Eastern Ambulance about the remov[ing the cause] completely from the courts considerashy

I tion the power to enter an order Instead the Miller court specified an exception in rule 1540(b) to the complete loss of jurisdiction from a voluntary disshymissal

A trial judge is deprived of jurisdiction not by the manner in which the proceeding is terminshy

I ated but by the sheer finality of the act whether

I judgment decree order or stipulation which concludes litigation Once the litigation is terminshyated and the time for appeal has run that action is

I

concluded for all time There is one exception to this absolute fmality and this is rule 1540 which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances [es]

484 So2d at 1223 Miller explicitly held that that Rule 1540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule FN4 In this case defendant 956 contends that the court had authority here to consider his motion for relief on the merits because he asserted a specific basis aushythorized by rule 1540(b)

FN4 484 So2d at 1224 (citing Shampaine Indus v S Broward Hosp Dist 411 So2d 364 (Fla 4th DCA 1982raquo

Rule 1540(b )(3) provides

On motion and upon such terms as are just the court may relieve a party from a final judgshyment decree order or proceeding for fraud (whether intrinsic or extrinsic) misrepresentashytion or other misconduct of an adverse party [es]

In Select Builders of Florida v Wong 367 So2d 1089 (Fla 3d DCA 1979) the Third District agreed that rule 1540(b) affords a basis to strike a notice of voluntary dismissal filed to avoid sancshytions for relief from the dismissal on account of fraudulent conduct In explaining its decision the court noted that in that instance plaintiff had obshytained the affirmative relief it sought its actions in the cause in the trial court may have been fraudushylent on the court and it certainly was within its inshyherent power (as an equity court) to protect its inshytegrity 367 So2d at 1091 I do not read Select Builders to explicitly hold that affirmative relief is required to establish grounds under rule 1540(b) for relief from a voluntary dismissal done to preshyvent examination into an attempted fraud on the courtFN5

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I FN5 See also Romar Int Inc v Jim Rathman ChevroletCadillac Inc 420 So2d 346 347 (Fla 5th DCA 1982) (recognizing narrow exception exists where a fraud on the court is attempted

I [es] by the filing of the voluntary disshymissal)

In Us Porcelain Inc v Breton 502 So2dI l379 (Fla 4th DCA 1987) we tacitly recognized

I the Select Builders exception but found it inapplicshyable where [t]here are no findings nor conclusions in this case of fraud deception irregularities nor any misleading of the court 502 So2d at l380

I Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to tradishytional common law fraud indeed adding as other forms of fraudulent conduct deception irregularitshyies [ ] or any misleading ofthe court [es]

I The fact that the fraud exception applied in Seshy

I lect Builders is now commonly recognized as valid under Miller v Fortune Insurance is seen in the folshylowing exposition on the subject from the standard Florida legal encyclopedia

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In exercising its inherent power to protect its inshytegrity the trial court is authorized to reinstate a matter and retains jurisdiction over the cause in order to prevent a fraud on the court where it apshypears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal The originshy

I al jurisdiction over the dismissed cause first acshyquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case either by means of an indeshy

I pendent equity suit directed against the fraudushylently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases

I 1 FLAJUR2D Actions sect 231 (citing Select Builders ) see also Roger A Silver The Inherent

I Power Of The Florida Courts 39 U MIAMI L

I

REV 257 287 (1985) (Florida courts have inshyherent power to strike a voluntary dismissal (citing Select Builders raquo Henry P Trawick Jr TRAWICKS FLORIDA PRACTICE amp PROCEDshyURE sect 212 (citing Select Builders ) 25 TRIAL ADVOCATE QUARTERLY 22 23 (discussing Seshylect Builders ) All the texts base the courts authorshyity to grant relief on the inherent power of the judges to protect the integrity957 of the court sysshytem in the litigation process

In opposing defendants motion for relief under rule 1540(b) BNY Mellon relies on Bevan v DAlessandro 395 So2d 1285 (Fla 2d DCA 1981) There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court FN6 BNY Mellon argued that similarly it had obtained no reshylief or benefit at that point in the action from the filing of the revised assignment In denying defendshyants motion for relief under rule 1540(b) the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon Curiously neither Bevan nor BNY Mellon makes any attempt to argue why as a matter of simple jurisprudence courts should be precluded from scrutinizing the use of a volunshytary dismissal after an unsuccessful attempt to deshyceive mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit

FN6 We note that Bevan was decided sevshyeral years before the supreme court deshycided Miller v Fortune Insurance

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal In volunshytarily dismissing the case at that point it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court In fact it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents It continued to use the voluntary dis-

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missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

I copy 2012 Thomson Reuters No Claim to Orig US Gov Works

I I

I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

I I

Page 10

57 So3d 95036 Fla L Weekly 0646

END OF DOCUMENT

copy 2012 Thomson Reuters No Claim to Orig US Gov Works

I I

- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

I I

I bull

I I I I I I I I I I I I I I I I

)

CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

I I

r)I I

CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 2: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I WestLaw

I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

I I

District Court of Appeal of Florida Fourth District

Roman PINO Appellant v

The BANK OF NEW YORK MELLON Appellee

I No 4010-378 March 30 2011

I Background Purported holder of note brought

I foreclosure action against mortgagor The Circuit Court Fifteenth Judicial Circuit Palm Beach County Meenu Sasser J denied mortgagors moshytion to strike voluntary dismissal in purported holdshyers prior foreclosure action and for dismissal of current action Mortgagor requested appeal

I Holding On grant of clarification the District Court of Appeal en banc Warner J held that mortgagor failed to establish that he was adversely

I affected through notice of voluntary dismissal in prior action

I Affirmed question certified

Polen J filed dissenting opinion

I West Headnotes

[1] Mortgages 266 ~475

I I 266 Mortgages

266X Foreclosure by Action 266X(J) Trial or Hearing and Reference

266k475 k Dismissal or nonsuit before trial Most Cited Cases

I Purported note-holder did not obtain any type

of affirmative relief through grant of its motion for voluntary dismissal in its prior foreclosure action

I against mortgagor as would support mortgagors request for relief from such notice of dismissal in purported note-holders subsequent foreclosure ac-

I I

Page 1

tion

[2] Mortgages 266 ~475

266 Mortgages 266X Foreclosure by Action

266X(J) Trial or Hearing and Reference 266k475 k Dismissal or nonsuit before

trial Most Cited Cases Mortgagor failed to establish in purported

note-holders subsequent foreclosure action that he was adversely affected through grant of purported note-holders motion for voluntary dismissal in prishyor foreclosure action as required for relief from noshytice of voluntary dismissal in prior action mortshygagor may have actually benefited by forestalling foreclosure Wests FSA RCP Rule 1540(b)

[3] Pretrial Procedure 307A ~520

307 A Pretrial Procedure 307 AIll Dismissal

307AIII(A) Voluntary Dismissal 307Ak520 k Vacation Most Cited Cases

A notice of voluntary dismissal constitutes a proceeding within the meaning of the rule allowshying a court to relieve a party from a fmal judgment decree order or proceeding Wests FSA RCP Rule 1540(b)

[4] Judgment 228 ~336

228 Judgment 2281X Opening or Vacating

228k336 k Nature and scope of remedy Most Cited Cases

The fact that a defendant may have incurred atshytorney fees and costs is not an adverse impact reshycognized as meriting relief under the rule allowing a court to relieve a party from a fmal judgment deshycree order or proceeding Wests FSA RCP Rule 1540(b)

[5] Pretrial Procedure 307 A ~46

copy 2012 Thomson Reuters No Claim to Orig US Gov Works

I I

I Page 2 57 So3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I 307 A Pretrial Procedure

307All Depositions and Discovery 307AII(A) Discovery in General

307 Ak44 Failure to Disclose Sanctions 307 Ak46 k Dismissal or default judgshy

I ment Most Cited Cases

Pretrial Procedure 307 A ~531

I 307 A Pretrial Procedure

I 307 AlII Dismissal

307AIII(B) Involuntary Dismissal 307 AIII(B) I In General

307Ak531 k Nature and scope of remshy

I edy in general Most Cited Cases

Dismissal is a remedy to be used only in the most extreme cases as generally speaking allegashy

I tions of inconsistency nondisclosure and even falseness are best resolved by allowing the parties to bring them to the jurys attention through cross examination or impeachment rather than by disshymissal of the entire action

I 951 Enrique Nieves III and Chris T Immel of Ice Legal PA West Palm Beach for appellant

I Nancy M Wallace Katherine E Giddings and Wilshyliam P Heller of Akerman Senterfitt Tallahassee and Fort Lauderdale for appellee

I ENBANC

I ONMOTION FOR CLARIFICATION WARNERJ

I We grant the motion for clarification withdraw

our previously issued opinion and substitute the folshylowing in its place

I The defendant in a mortgage foreclosure action

filed by BNY Mellon appeals a trial courts denial of his motion under Florida Rule of Civil Procedure

I I 540(b) to vacate a voluntary dismissal The notice was filed after the defendant moved for sanctions against the plaintiff for filing what he alleged was a fraudulent assignment of mortgage Because the no-

I

tice of voluntary dismissal was filed prior to the plaintiff obtaining any affirmative relief from the court we affIrm the trial courts order

BNY Mellon commenced an action to foreclose a mortgage against the defendant The mortgage atshytached to the complaint specified another entity Silver State Financial Systems as lender and still another Mortgage Electronic Registration Systems as mortgagee The complaint alleged that BNY Mellon owned and held the note and mortgage by assignment but failed to attach a copy of any docushyment of assignment At the same time it alleged the original promissory note itself had been lost desshytroyed or stolen The complaint was silent as to whether the note had ever been negotiated and transferred to BNY Mellon in the manner provided by lawFNI

FNI See sect 6732011(2) Fla Stat (2010) (if instrument is payable to an identified person negotiation requires transfer of possession of the instrument and endorseshyment by holder)

The defendant initially sought dismissal for failure to state a cause of action arguing that in light of the claim of a lost instrument the absence of an assignment of mortgage was a critical omisshysion BNY Mellon responded by amending the complaint only to attach a new unrecorded assignshyment which happened to be dated just before the original pleading was filed

In response to this amendment defendant moved for sanctions He alleged that the newly proshyduced document of assignment was false and had been fraudulently made pointing to the fact that the person executing the assignment was employed by the attorney representing the mortgagee and the commission date on notary stamp showed that the document could not have been notarized on the date in the document The defendant argued that the plaintiff was attempting fraud on the court and that the court should consider appropriate sanctions such as dismissal of the action with prejudice Con-

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I current with the filing of this motion the defendant scheduled depositions of the person who signed the assignment the notary and the witnesses named on the document-all employees of Florida counsel for BNY Mellon952 -for the following day Before

I the scheduled depositions BNY Mellon filed a noshytice of voluntary dismissal of the action

I Five months later BNY Mellon refiled an identical action to foreclose the same mortgage

I The new complaint no longer claimed the note was lost and attached a new assignment of mortgage dated after the voluntary dismissal In the original dismissed action the defendant filed a motion unshyder rule 1540(b) seeking to strike the voluntary dismissal in the original action on the grounds of

I fraud on the court and for a dismissal of the newly

I filed action as a consequent sanction requesting an evidentiary hearing The trial court denied the moshytion without an evidentiary hearing essentially holding that because the previous action had been

I voluntarily dismissed under rule 1420 the court lacked jurisdiction and had no authority to consider any relief under rule 1540(b)

We affirm the trial courts refusal to strike the notice of voluntary dismissal Neither rule 1540(b)

I nor the common law exceptions to that rule allow a

I defendant to set aside the plaintiffs notice of volunshytary dismissal where the plaintiff has not obtained any affirmative relief before dismissal

I [I] Rule 1420(a) permits a plaintiff to dismiss

an action without order of the court at any time before a motion for summary judgment is heard or before retirement of the jury or submission to the

I I

court if the matter is tried non-jury Our courts have consistently construed this rule as meaning that at any time before a hearing on a motion for summary judgment a party seeking affirmative reshylief has nearly an absolute right to dismiss his entire action once without a court order by serving a noshytice of dismissal Ormond Beach Assocs Ltd v Citation Mortg Ltd 835 So2d 292 295 (Fla 5th DCA 2002) see also Meyer v Contemporary

I Broadcasting Co 207 So2d 325 327 (Fla 4th

I I

DCA 1968) The courts have carved out narrow exshyceptions to this entitlement

The only recognized common law exception to the broad scope of this rule is in circumstances where the defendant demonstrates serious prejushydice such as where he is entitled to receive afshyfrrmative relief or a hearing and disposition of the case on the merits has acquired some substantial rights in the cause or where dismissal is inequitshyable See Romar Inl Inc v Jim Rathman ChevshyroletCadillac Inc 420 So2d 346 (Fla 5th DCA 1982) Visoly v Bodek 602 So2d 979 (Fla 3d DCA 1992)

Ormond 835 So2d at 295 In Visoly the court granted a motion to strike the complaint as a sham Finding that rule 1150(a) operated much like a moshytion for summary judgment the court concluded that the plaintiff could not voluntarily dismiss his complaint pursuant to rule 1420(a) where the trial court had granted the motion to strike which was equivalent to the granting of a motion for summary judgment

The most applicable common law exception to the right to a voluntary dismissal was applied in Seshylect Builders of Florida Inc v Wong 367 So2d 1089 (Fla 3d DCA 1979) There the court affirmed the trial courts striking of a notice of voluntary disshymissal where the plaintiff sought to perpetrate a fraud by the filing of the notice of voluntary disshymissal Select Builders had filed suit to expunge an injunction against a condominium developer granshyted in Federal Court in Illinois and improperly filed in the public records of Dade County The trial court issued an order expunging the document and enjoining the filing of any other like documents without domesticating the judgment in Florida Later it was discovered that Select Builders had perpetrated a fraud upon 953 the court in obtainshying the order expunging the document The trial court vacated its prior order and the appellees moved for sanctions and fees The court also ordered Select Builders to take steps to preserve the status quo and to make payment of monies it reshy

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I ceived in connection with the sale of some of the property subject to the injunction to a third party Select Builders then filed a notice of voluntary disshymissal which the trial court struck to retain jurisshydiction over the case

I I The appellate court affirmed concluding that

the court correctly retained jurisdiction to prevent a fraud on the court The plaintiff had obtained the affirmative relief it sought its actions in the cause

I in the trial court may have been fraudulent on the court and it certainly was within its inherent power (as an equity court) to protect its integrity Id at 1091 The court distinguished other cases in which the plaintiffs right to take a voluntary dismissal was deemed absolute First the plaintiff in the

I cited cases had not received affirmative relief from an equity court and secondly no question of fraud on the court was involved Id

I In Select Builders the plaintiff obtained affirmshy

I ative relief by the granting of the suspect injuncshytion and it had obtained such relief by fraud Comshyparing the facts of Select Builders to this case we fmd that the BNY Mellon had not obtained any

I type of affirmative relief Even if the assignment of mortgage was fraudulent in that it was not exshyecuted by the proper party it did not result in any relief in favor of BNY Mellon Select Builders is thus distinguishable from the present case In Bevan

I v DAlessandro 395 So2d 1285 1286 (Fla 2d DCA 1981) the court likewise distinguished Select

I Builders on the grounds that the plaintiff had reshyceived affIrmative relief to which he was not enshytitled and sought to avoid correction of the trial courts error by taking a voluntary dismissal No such circumstance is present in this case

I I [2][3] The appellant argues that rule 1540(b)

also provides a method to seek relief from a notice of voluntary dismissal We disagree that the deshyfendantappellant may utilize that rule where the defendant has not been adversely affected by the voluntary dismissal Rule 1540(b) allows a court to relieve a party from a fmal judgment decree orshy

I der or proceeding based upon any of fIve grounds

I I

set out in the rule (1) mistake inadvertence surshyprise or excusable neglect (2) newly discovered evidence (3) fraud or other misconduct of an adshyverse party (4) that the judgment or decree is void or (5) that the judgment or decree has been satisfIed or released A notice of voluntary dismissal constishytutes a proceeding within the meaning of the rule See Miller v Fortune Ins Co 484 So2d 1221 1224 (Fla1986) Therefore the rule may be inshyvoked even though for all other purposes the trial court has lost jurisdiction over the cause d Inshydeed in Shampaine Industries Inc v South Broward Hospital District 411 So2d 364 368 (Fla 4th DCA 1982) approved by the supreme court in Mille~ we held Rule 1540(b) may be used to afford relief to all litigants who can demonshystrate the existence of the grounds set out in the Rule

[4] The rule however is limited to relieving a party of a judgment order or proceeding Relieve means [t]o ease or alleviate (pain distress anxishyety need etc) to ease (a person) of any burden wrong or oppression as by legal means The Ranshydom House Dictionary of the English Language 1212 (1967) A defendant may obtain such relief when a plaintiff has obtained a ruling that has adshyversely impacted the defendant Here the defendant has not been adversely impacted by a 954 ruling of the court The fact that a defendant may have inshycurred attorneys fees and costs is not an adverse impact recognized as meriting relief See Servo Exshyperts LLC V Northside Air Conditioning amp Elec Servo Inc 2010 WL 4628567 (Fla 2d DCA 2010) Therefore because the defendant has not suffered an adverse ruling or impact from the notice of volshyuntary dismissal he is not entitled to seek relief pursuant to the rule

[5] The dissent is certainly correct that a court possesses the authority to protect judicial integrity in the litigation process However the cases cited in support of a court exercising such authority all inshyvolved the court granting a motion for involuntary dismissal where the plaintiff had engaged in deceitshy

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ful conduct during a still pending case See Ramey

I v Haverty Furn Co 993 So2lt1 1014 1020 (Fla 2d DCA 2008) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) Morgan v Campshybell 816 So2d 251 253 (Fla 2d DCA 2002) In

I each of those proceedings the defendant moved for

I the sanction of dismissal of an ongoing proceeding based upon fraud on the court That term has been described as follows

I A fraud on the court occurs where it can be demonstrated clearly and convincingly that a party has sentiently set in motion some unconshyscionable scheme calculated to interfere with the

I judicial systems ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposshying partys claim or defense

I Aoude v Mobil Oil Corp 892 F2d I I 15 I I 18

(I st Cir1989) Dismissal is a remedy to be used

I only in the most extreme cases as [g]enerally speaking allegations of inconsistency nondisshyclosure and even falseness are best resolved by alshylowing the parties to bring them to the jurys attenshy

I tion through cross examination or impeachment rather than by dismissal of the entire action Granados v Zehr 979 So2d I ISS 1158 (Fla 5th DCA 2008) (emphasis added)

I Here we do not view it as an appropriate exershy

cise of the inherent authority of the court to reopen

I a case voluntarily dismissed by the plaintiff simply to exercise that authority to dismiss it albeit with prejudice Only in those circumstances where the defendant has been seriously prejudiced as noted

I in Romar International should the court exercise its inherent authority to strike a notice of voluntary dismissal The defendant in this case does not alshy

I lege any prejudice to him as a result of the plaintiffs voluntary dismissal of its ftrst lawsuit Inshydeed he may have benefttted by forestalling the foreclosure

The appropriate procedure is to follow Rule

I 1420 Upon the voluntary dismissal Pino would be

I I

entitled to his costs and possibly his attorneys fees See Fleet Sens Corp v Reise 857 So2d 273 (Fla 2d DCA 2003) The court can require payment as a precondition to the second suit See Fla R Civ P 1420(d) Moreover a referral of the appellees atshytorney for a violation of the Code of Professional Responsibility for ftling the complaint with the alshyleged false affidavit is in orderFN2

FN2 Notably appellees attorneys on apshypeal Akerman Sentemtt were not inshyvolved in the proceedings giving rise to the allegations of misrepresentation and fraud upon the court

We conclude that this is a question of great public importance as many many mortgage foreshyclosures appear tainted with suspect documents The defendant has requested a denial of the equitshyable right to foreclose the mortgage at all If this is an available remedy as a sanction after a voluntary dismissal it may dramatically affect the mortgage foreclosure crisis in this 955 State Accordingly we certify the following question to the Florida Sushypreme Court as of great public importance

DOES A TRIAL COURT HA VE JURISDICTION AND AUTHORITY UNDER RULE 1540(b) Fla R Civ P OR UNDER ITS INHERENT AUshyTHORITY TO GRANT RELIEF FROM A VOLshyUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE REshyLIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT

Affirmed

GROSS CJ STEVENSON TAYLOR MAY DAMOORGIAN CIKLIN GERBER LEVINE and CONNER JJ concur HAZOURI J recused POLEN J dissents with opinion

POLEN J dissentingFN3

FN3 This dissent was actually written by

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I Judge Gary M Farmer who retired from this court December 31 2010 As Judge Farmer can no longer participate in this matter and since I concurred with his proshyposed dissent I now adopt in total his writshy

I ing Although I thoroughly agree with this dissent I want the record to reflect that the words are those of Judge Farmer

I Rule 1420(a)(l) allows a plaintiff to voluntarshy

I ily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment Initially in Randle-Eastern Ambulance Service v Vasta 360 So2d 68 (Fla1978) the court held that such a dismissal took the case out of the power of the court for all purposes explaining

I I The right to dismiss ones own lawsuit during

the course of trial is guaranteed by Rule 1420(a) endowing a plaintiff with unilateral authority to block action favorable to a defendant which the

I trial judge might be disposed to approve The efshyfect is to remove completely from the courts conshysideration the power to enter an order equivalent in all respects to a deprivation of jurisdiction If

I the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way it follows that he has no jurisdiction to reinstate a dismissed proceeding The policy reasons for this consequence support its apparent rigidity

I 360 So2d at 69 But later in Miller v Fortune

I Insurance Co 484 So2d 1221 (Fla1986) the court retreated from its statement in Randle-Eastern Ambulance about the remov[ing the cause] completely from the courts considerashy

I tion the power to enter an order Instead the Miller court specified an exception in rule 1540(b) to the complete loss of jurisdiction from a voluntary disshymissal

A trial judge is deprived of jurisdiction not by the manner in which the proceeding is terminshy

I ated but by the sheer finality of the act whether

I judgment decree order or stipulation which concludes litigation Once the litigation is terminshyated and the time for appeal has run that action is

I

concluded for all time There is one exception to this absolute fmality and this is rule 1540 which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances [es]

484 So2d at 1223 Miller explicitly held that that Rule 1540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule FN4 In this case defendant 956 contends that the court had authority here to consider his motion for relief on the merits because he asserted a specific basis aushythorized by rule 1540(b)

FN4 484 So2d at 1224 (citing Shampaine Indus v S Broward Hosp Dist 411 So2d 364 (Fla 4th DCA 1982raquo

Rule 1540(b )(3) provides

On motion and upon such terms as are just the court may relieve a party from a final judgshyment decree order or proceeding for fraud (whether intrinsic or extrinsic) misrepresentashytion or other misconduct of an adverse party [es]

In Select Builders of Florida v Wong 367 So2d 1089 (Fla 3d DCA 1979) the Third District agreed that rule 1540(b) affords a basis to strike a notice of voluntary dismissal filed to avoid sancshytions for relief from the dismissal on account of fraudulent conduct In explaining its decision the court noted that in that instance plaintiff had obshytained the affirmative relief it sought its actions in the cause in the trial court may have been fraudushylent on the court and it certainly was within its inshyherent power (as an equity court) to protect its inshytegrity 367 So2d at 1091 I do not read Select Builders to explicitly hold that affirmative relief is required to establish grounds under rule 1540(b) for relief from a voluntary dismissal done to preshyvent examination into an attempted fraud on the courtFN5

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I FN5 See also Romar Int Inc v Jim Rathman ChevroletCadillac Inc 420 So2d 346 347 (Fla 5th DCA 1982) (recognizing narrow exception exists where a fraud on the court is attempted

I [es] by the filing of the voluntary disshymissal)

In Us Porcelain Inc v Breton 502 So2dI l379 (Fla 4th DCA 1987) we tacitly recognized

I the Select Builders exception but found it inapplicshyable where [t]here are no findings nor conclusions in this case of fraud deception irregularities nor any misleading of the court 502 So2d at l380

I Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to tradishytional common law fraud indeed adding as other forms of fraudulent conduct deception irregularitshyies [ ] or any misleading ofthe court [es]

I The fact that the fraud exception applied in Seshy

I lect Builders is now commonly recognized as valid under Miller v Fortune Insurance is seen in the folshylowing exposition on the subject from the standard Florida legal encyclopedia

I I

In exercising its inherent power to protect its inshytegrity the trial court is authorized to reinstate a matter and retains jurisdiction over the cause in order to prevent a fraud on the court where it apshypears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal The originshy

I al jurisdiction over the dismissed cause first acshyquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case either by means of an indeshy

I pendent equity suit directed against the fraudushylently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases

I 1 FLAJUR2D Actions sect 231 (citing Select Builders ) see also Roger A Silver The Inherent

I Power Of The Florida Courts 39 U MIAMI L

I

REV 257 287 (1985) (Florida courts have inshyherent power to strike a voluntary dismissal (citing Select Builders raquo Henry P Trawick Jr TRAWICKS FLORIDA PRACTICE amp PROCEDshyURE sect 212 (citing Select Builders ) 25 TRIAL ADVOCATE QUARTERLY 22 23 (discussing Seshylect Builders ) All the texts base the courts authorshyity to grant relief on the inherent power of the judges to protect the integrity957 of the court sysshytem in the litigation process

In opposing defendants motion for relief under rule 1540(b) BNY Mellon relies on Bevan v DAlessandro 395 So2d 1285 (Fla 2d DCA 1981) There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court FN6 BNY Mellon argued that similarly it had obtained no reshylief or benefit at that point in the action from the filing of the revised assignment In denying defendshyants motion for relief under rule 1540(b) the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon Curiously neither Bevan nor BNY Mellon makes any attempt to argue why as a matter of simple jurisprudence courts should be precluded from scrutinizing the use of a volunshytary dismissal after an unsuccessful attempt to deshyceive mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit

FN6 We note that Bevan was decided sevshyeral years before the supreme court deshycided Miller v Fortune Insurance

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal In volunshytarily dismissing the case at that point it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court In fact it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents It continued to use the voluntary dis-

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missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

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I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

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END OF DOCUMENT

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- ---- --~

I --- - )

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IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

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CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

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CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

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I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

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I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

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CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

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CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

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CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

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CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

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AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

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CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

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CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

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CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

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CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

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Page 3: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I Page 2 57 So3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I 307 A Pretrial Procedure

307All Depositions and Discovery 307AII(A) Discovery in General

307 Ak44 Failure to Disclose Sanctions 307 Ak46 k Dismissal or default judgshy

I ment Most Cited Cases

Pretrial Procedure 307 A ~531

I 307 A Pretrial Procedure

I 307 AlII Dismissal

307AIII(B) Involuntary Dismissal 307 AIII(B) I In General

307Ak531 k Nature and scope of remshy

I edy in general Most Cited Cases

Dismissal is a remedy to be used only in the most extreme cases as generally speaking allegashy

I tions of inconsistency nondisclosure and even falseness are best resolved by allowing the parties to bring them to the jurys attention through cross examination or impeachment rather than by disshymissal of the entire action

I 951 Enrique Nieves III and Chris T Immel of Ice Legal PA West Palm Beach for appellant

I Nancy M Wallace Katherine E Giddings and Wilshyliam P Heller of Akerman Senterfitt Tallahassee and Fort Lauderdale for appellee

I ENBANC

I ONMOTION FOR CLARIFICATION WARNERJ

I We grant the motion for clarification withdraw

our previously issued opinion and substitute the folshylowing in its place

I The defendant in a mortgage foreclosure action

filed by BNY Mellon appeals a trial courts denial of his motion under Florida Rule of Civil Procedure

I I 540(b) to vacate a voluntary dismissal The notice was filed after the defendant moved for sanctions against the plaintiff for filing what he alleged was a fraudulent assignment of mortgage Because the no-

I

tice of voluntary dismissal was filed prior to the plaintiff obtaining any affirmative relief from the court we affIrm the trial courts order

BNY Mellon commenced an action to foreclose a mortgage against the defendant The mortgage atshytached to the complaint specified another entity Silver State Financial Systems as lender and still another Mortgage Electronic Registration Systems as mortgagee The complaint alleged that BNY Mellon owned and held the note and mortgage by assignment but failed to attach a copy of any docushyment of assignment At the same time it alleged the original promissory note itself had been lost desshytroyed or stolen The complaint was silent as to whether the note had ever been negotiated and transferred to BNY Mellon in the manner provided by lawFNI

FNI See sect 6732011(2) Fla Stat (2010) (if instrument is payable to an identified person negotiation requires transfer of possession of the instrument and endorseshyment by holder)

The defendant initially sought dismissal for failure to state a cause of action arguing that in light of the claim of a lost instrument the absence of an assignment of mortgage was a critical omisshysion BNY Mellon responded by amending the complaint only to attach a new unrecorded assignshyment which happened to be dated just before the original pleading was filed

In response to this amendment defendant moved for sanctions He alleged that the newly proshyduced document of assignment was false and had been fraudulently made pointing to the fact that the person executing the assignment was employed by the attorney representing the mortgagee and the commission date on notary stamp showed that the document could not have been notarized on the date in the document The defendant argued that the plaintiff was attempting fraud on the court and that the court should consider appropriate sanctions such as dismissal of the action with prejudice Con-

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I Page 3 57 So3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I current with the filing of this motion the defendant scheduled depositions of the person who signed the assignment the notary and the witnesses named on the document-all employees of Florida counsel for BNY Mellon952 -for the following day Before

I the scheduled depositions BNY Mellon filed a noshytice of voluntary dismissal of the action

I Five months later BNY Mellon refiled an identical action to foreclose the same mortgage

I The new complaint no longer claimed the note was lost and attached a new assignment of mortgage dated after the voluntary dismissal In the original dismissed action the defendant filed a motion unshyder rule 1540(b) seeking to strike the voluntary dismissal in the original action on the grounds of

I fraud on the court and for a dismissal of the newly

I filed action as a consequent sanction requesting an evidentiary hearing The trial court denied the moshytion without an evidentiary hearing essentially holding that because the previous action had been

I voluntarily dismissed under rule 1420 the court lacked jurisdiction and had no authority to consider any relief under rule 1540(b)

We affirm the trial courts refusal to strike the notice of voluntary dismissal Neither rule 1540(b)

I nor the common law exceptions to that rule allow a

I defendant to set aside the plaintiffs notice of volunshytary dismissal where the plaintiff has not obtained any affirmative relief before dismissal

I [I] Rule 1420(a) permits a plaintiff to dismiss

an action without order of the court at any time before a motion for summary judgment is heard or before retirement of the jury or submission to the

I I

court if the matter is tried non-jury Our courts have consistently construed this rule as meaning that at any time before a hearing on a motion for summary judgment a party seeking affirmative reshylief has nearly an absolute right to dismiss his entire action once without a court order by serving a noshytice of dismissal Ormond Beach Assocs Ltd v Citation Mortg Ltd 835 So2d 292 295 (Fla 5th DCA 2002) see also Meyer v Contemporary

I Broadcasting Co 207 So2d 325 327 (Fla 4th

I I

DCA 1968) The courts have carved out narrow exshyceptions to this entitlement

The only recognized common law exception to the broad scope of this rule is in circumstances where the defendant demonstrates serious prejushydice such as where he is entitled to receive afshyfrrmative relief or a hearing and disposition of the case on the merits has acquired some substantial rights in the cause or where dismissal is inequitshyable See Romar Inl Inc v Jim Rathman ChevshyroletCadillac Inc 420 So2d 346 (Fla 5th DCA 1982) Visoly v Bodek 602 So2d 979 (Fla 3d DCA 1992)

Ormond 835 So2d at 295 In Visoly the court granted a motion to strike the complaint as a sham Finding that rule 1150(a) operated much like a moshytion for summary judgment the court concluded that the plaintiff could not voluntarily dismiss his complaint pursuant to rule 1420(a) where the trial court had granted the motion to strike which was equivalent to the granting of a motion for summary judgment

The most applicable common law exception to the right to a voluntary dismissal was applied in Seshylect Builders of Florida Inc v Wong 367 So2d 1089 (Fla 3d DCA 1979) There the court affirmed the trial courts striking of a notice of voluntary disshymissal where the plaintiff sought to perpetrate a fraud by the filing of the notice of voluntary disshymissal Select Builders had filed suit to expunge an injunction against a condominium developer granshyted in Federal Court in Illinois and improperly filed in the public records of Dade County The trial court issued an order expunging the document and enjoining the filing of any other like documents without domesticating the judgment in Florida Later it was discovered that Select Builders had perpetrated a fraud upon 953 the court in obtainshying the order expunging the document The trial court vacated its prior order and the appellees moved for sanctions and fees The court also ordered Select Builders to take steps to preserve the status quo and to make payment of monies it reshy

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I Page 4 57 So3d 950 36 Fla L Weekly D646

I (Cite as 57 So3d 950)

I ceived in connection with the sale of some of the property subject to the injunction to a third party Select Builders then filed a notice of voluntary disshymissal which the trial court struck to retain jurisshydiction over the case

I I The appellate court affirmed concluding that

the court correctly retained jurisdiction to prevent a fraud on the court The plaintiff had obtained the affirmative relief it sought its actions in the cause

I in the trial court may have been fraudulent on the court and it certainly was within its inherent power (as an equity court) to protect its integrity Id at 1091 The court distinguished other cases in which the plaintiffs right to take a voluntary dismissal was deemed absolute First the plaintiff in the

I cited cases had not received affirmative relief from an equity court and secondly no question of fraud on the court was involved Id

I In Select Builders the plaintiff obtained affirmshy

I ative relief by the granting of the suspect injuncshytion and it had obtained such relief by fraud Comshyparing the facts of Select Builders to this case we fmd that the BNY Mellon had not obtained any

I type of affirmative relief Even if the assignment of mortgage was fraudulent in that it was not exshyecuted by the proper party it did not result in any relief in favor of BNY Mellon Select Builders is thus distinguishable from the present case In Bevan

I v DAlessandro 395 So2d 1285 1286 (Fla 2d DCA 1981) the court likewise distinguished Select

I Builders on the grounds that the plaintiff had reshyceived affIrmative relief to which he was not enshytitled and sought to avoid correction of the trial courts error by taking a voluntary dismissal No such circumstance is present in this case

I I [2][3] The appellant argues that rule 1540(b)

also provides a method to seek relief from a notice of voluntary dismissal We disagree that the deshyfendantappellant may utilize that rule where the defendant has not been adversely affected by the voluntary dismissal Rule 1540(b) allows a court to relieve a party from a fmal judgment decree orshy

I der or proceeding based upon any of fIve grounds

I I

set out in the rule (1) mistake inadvertence surshyprise or excusable neglect (2) newly discovered evidence (3) fraud or other misconduct of an adshyverse party (4) that the judgment or decree is void or (5) that the judgment or decree has been satisfIed or released A notice of voluntary dismissal constishytutes a proceeding within the meaning of the rule See Miller v Fortune Ins Co 484 So2d 1221 1224 (Fla1986) Therefore the rule may be inshyvoked even though for all other purposes the trial court has lost jurisdiction over the cause d Inshydeed in Shampaine Industries Inc v South Broward Hospital District 411 So2d 364 368 (Fla 4th DCA 1982) approved by the supreme court in Mille~ we held Rule 1540(b) may be used to afford relief to all litigants who can demonshystrate the existence of the grounds set out in the Rule

[4] The rule however is limited to relieving a party of a judgment order or proceeding Relieve means [t]o ease or alleviate (pain distress anxishyety need etc) to ease (a person) of any burden wrong or oppression as by legal means The Ranshydom House Dictionary of the English Language 1212 (1967) A defendant may obtain such relief when a plaintiff has obtained a ruling that has adshyversely impacted the defendant Here the defendant has not been adversely impacted by a 954 ruling of the court The fact that a defendant may have inshycurred attorneys fees and costs is not an adverse impact recognized as meriting relief See Servo Exshyperts LLC V Northside Air Conditioning amp Elec Servo Inc 2010 WL 4628567 (Fla 2d DCA 2010) Therefore because the defendant has not suffered an adverse ruling or impact from the notice of volshyuntary dismissal he is not entitled to seek relief pursuant to the rule

[5] The dissent is certainly correct that a court possesses the authority to protect judicial integrity in the litigation process However the cases cited in support of a court exercising such authority all inshyvolved the court granting a motion for involuntary dismissal where the plaintiff had engaged in deceitshy

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ful conduct during a still pending case See Ramey

I v Haverty Furn Co 993 So2lt1 1014 1020 (Fla 2d DCA 2008) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) Morgan v Campshybell 816 So2d 251 253 (Fla 2d DCA 2002) In

I each of those proceedings the defendant moved for

I the sanction of dismissal of an ongoing proceeding based upon fraud on the court That term has been described as follows

I A fraud on the court occurs where it can be demonstrated clearly and convincingly that a party has sentiently set in motion some unconshyscionable scheme calculated to interfere with the

I judicial systems ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposshying partys claim or defense

I Aoude v Mobil Oil Corp 892 F2d I I 15 I I 18

(I st Cir1989) Dismissal is a remedy to be used

I only in the most extreme cases as [g]enerally speaking allegations of inconsistency nondisshyclosure and even falseness are best resolved by alshylowing the parties to bring them to the jurys attenshy

I tion through cross examination or impeachment rather than by dismissal of the entire action Granados v Zehr 979 So2d I ISS 1158 (Fla 5th DCA 2008) (emphasis added)

I Here we do not view it as an appropriate exershy

cise of the inherent authority of the court to reopen

I a case voluntarily dismissed by the plaintiff simply to exercise that authority to dismiss it albeit with prejudice Only in those circumstances where the defendant has been seriously prejudiced as noted

I in Romar International should the court exercise its inherent authority to strike a notice of voluntary dismissal The defendant in this case does not alshy

I lege any prejudice to him as a result of the plaintiffs voluntary dismissal of its ftrst lawsuit Inshydeed he may have benefttted by forestalling the foreclosure

The appropriate procedure is to follow Rule

I 1420 Upon the voluntary dismissal Pino would be

I I

entitled to his costs and possibly his attorneys fees See Fleet Sens Corp v Reise 857 So2d 273 (Fla 2d DCA 2003) The court can require payment as a precondition to the second suit See Fla R Civ P 1420(d) Moreover a referral of the appellees atshytorney for a violation of the Code of Professional Responsibility for ftling the complaint with the alshyleged false affidavit is in orderFN2

FN2 Notably appellees attorneys on apshypeal Akerman Sentemtt were not inshyvolved in the proceedings giving rise to the allegations of misrepresentation and fraud upon the court

We conclude that this is a question of great public importance as many many mortgage foreshyclosures appear tainted with suspect documents The defendant has requested a denial of the equitshyable right to foreclose the mortgage at all If this is an available remedy as a sanction after a voluntary dismissal it may dramatically affect the mortgage foreclosure crisis in this 955 State Accordingly we certify the following question to the Florida Sushypreme Court as of great public importance

DOES A TRIAL COURT HA VE JURISDICTION AND AUTHORITY UNDER RULE 1540(b) Fla R Civ P OR UNDER ITS INHERENT AUshyTHORITY TO GRANT RELIEF FROM A VOLshyUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE REshyLIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT

Affirmed

GROSS CJ STEVENSON TAYLOR MAY DAMOORGIAN CIKLIN GERBER LEVINE and CONNER JJ concur HAZOURI J recused POLEN J dissents with opinion

POLEN J dissentingFN3

FN3 This dissent was actually written by

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I Judge Gary M Farmer who retired from this court December 31 2010 As Judge Farmer can no longer participate in this matter and since I concurred with his proshyposed dissent I now adopt in total his writshy

I ing Although I thoroughly agree with this dissent I want the record to reflect that the words are those of Judge Farmer

I Rule 1420(a)(l) allows a plaintiff to voluntarshy

I ily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment Initially in Randle-Eastern Ambulance Service v Vasta 360 So2d 68 (Fla1978) the court held that such a dismissal took the case out of the power of the court for all purposes explaining

I I The right to dismiss ones own lawsuit during

the course of trial is guaranteed by Rule 1420(a) endowing a plaintiff with unilateral authority to block action favorable to a defendant which the

I trial judge might be disposed to approve The efshyfect is to remove completely from the courts conshysideration the power to enter an order equivalent in all respects to a deprivation of jurisdiction If

I the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way it follows that he has no jurisdiction to reinstate a dismissed proceeding The policy reasons for this consequence support its apparent rigidity

I 360 So2d at 69 But later in Miller v Fortune

I Insurance Co 484 So2d 1221 (Fla1986) the court retreated from its statement in Randle-Eastern Ambulance about the remov[ing the cause] completely from the courts considerashy

I tion the power to enter an order Instead the Miller court specified an exception in rule 1540(b) to the complete loss of jurisdiction from a voluntary disshymissal

A trial judge is deprived of jurisdiction not by the manner in which the proceeding is terminshy

I ated but by the sheer finality of the act whether

I judgment decree order or stipulation which concludes litigation Once the litigation is terminshyated and the time for appeal has run that action is

I

concluded for all time There is one exception to this absolute fmality and this is rule 1540 which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances [es]

484 So2d at 1223 Miller explicitly held that that Rule 1540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule FN4 In this case defendant 956 contends that the court had authority here to consider his motion for relief on the merits because he asserted a specific basis aushythorized by rule 1540(b)

FN4 484 So2d at 1224 (citing Shampaine Indus v S Broward Hosp Dist 411 So2d 364 (Fla 4th DCA 1982raquo

Rule 1540(b )(3) provides

On motion and upon such terms as are just the court may relieve a party from a final judgshyment decree order or proceeding for fraud (whether intrinsic or extrinsic) misrepresentashytion or other misconduct of an adverse party [es]

In Select Builders of Florida v Wong 367 So2d 1089 (Fla 3d DCA 1979) the Third District agreed that rule 1540(b) affords a basis to strike a notice of voluntary dismissal filed to avoid sancshytions for relief from the dismissal on account of fraudulent conduct In explaining its decision the court noted that in that instance plaintiff had obshytained the affirmative relief it sought its actions in the cause in the trial court may have been fraudushylent on the court and it certainly was within its inshyherent power (as an equity court) to protect its inshytegrity 367 So2d at 1091 I do not read Select Builders to explicitly hold that affirmative relief is required to establish grounds under rule 1540(b) for relief from a voluntary dismissal done to preshyvent examination into an attempted fraud on the courtFN5

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I FN5 See also Romar Int Inc v Jim Rathman ChevroletCadillac Inc 420 So2d 346 347 (Fla 5th DCA 1982) (recognizing narrow exception exists where a fraud on the court is attempted

I [es] by the filing of the voluntary disshymissal)

In Us Porcelain Inc v Breton 502 So2dI l379 (Fla 4th DCA 1987) we tacitly recognized

I the Select Builders exception but found it inapplicshyable where [t]here are no findings nor conclusions in this case of fraud deception irregularities nor any misleading of the court 502 So2d at l380

I Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to tradishytional common law fraud indeed adding as other forms of fraudulent conduct deception irregularitshyies [ ] or any misleading ofthe court [es]

I The fact that the fraud exception applied in Seshy

I lect Builders is now commonly recognized as valid under Miller v Fortune Insurance is seen in the folshylowing exposition on the subject from the standard Florida legal encyclopedia

I I

In exercising its inherent power to protect its inshytegrity the trial court is authorized to reinstate a matter and retains jurisdiction over the cause in order to prevent a fraud on the court where it apshypears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal The originshy

I al jurisdiction over the dismissed cause first acshyquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case either by means of an indeshy

I pendent equity suit directed against the fraudushylently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases

I 1 FLAJUR2D Actions sect 231 (citing Select Builders ) see also Roger A Silver The Inherent

I Power Of The Florida Courts 39 U MIAMI L

I

REV 257 287 (1985) (Florida courts have inshyherent power to strike a voluntary dismissal (citing Select Builders raquo Henry P Trawick Jr TRAWICKS FLORIDA PRACTICE amp PROCEDshyURE sect 212 (citing Select Builders ) 25 TRIAL ADVOCATE QUARTERLY 22 23 (discussing Seshylect Builders ) All the texts base the courts authorshyity to grant relief on the inherent power of the judges to protect the integrity957 of the court sysshytem in the litigation process

In opposing defendants motion for relief under rule 1540(b) BNY Mellon relies on Bevan v DAlessandro 395 So2d 1285 (Fla 2d DCA 1981) There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court FN6 BNY Mellon argued that similarly it had obtained no reshylief or benefit at that point in the action from the filing of the revised assignment In denying defendshyants motion for relief under rule 1540(b) the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon Curiously neither Bevan nor BNY Mellon makes any attempt to argue why as a matter of simple jurisprudence courts should be precluded from scrutinizing the use of a volunshytary dismissal after an unsuccessful attempt to deshyceive mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit

FN6 We note that Bevan was decided sevshyeral years before the supreme court deshycided Miller v Fortune Insurance

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal In volunshytarily dismissing the case at that point it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court In fact it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents It continued to use the voluntary dis-

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missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

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I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

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END OF DOCUMENT

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- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

I I

I bull

I I I I I I I I I I I I I I I I

)

CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

I I

r)I I

CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

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I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

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I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

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CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

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CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 4: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I Page 3 57 So3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I current with the filing of this motion the defendant scheduled depositions of the person who signed the assignment the notary and the witnesses named on the document-all employees of Florida counsel for BNY Mellon952 -for the following day Before

I the scheduled depositions BNY Mellon filed a noshytice of voluntary dismissal of the action

I Five months later BNY Mellon refiled an identical action to foreclose the same mortgage

I The new complaint no longer claimed the note was lost and attached a new assignment of mortgage dated after the voluntary dismissal In the original dismissed action the defendant filed a motion unshyder rule 1540(b) seeking to strike the voluntary dismissal in the original action on the grounds of

I fraud on the court and for a dismissal of the newly

I filed action as a consequent sanction requesting an evidentiary hearing The trial court denied the moshytion without an evidentiary hearing essentially holding that because the previous action had been

I voluntarily dismissed under rule 1420 the court lacked jurisdiction and had no authority to consider any relief under rule 1540(b)

We affirm the trial courts refusal to strike the notice of voluntary dismissal Neither rule 1540(b)

I nor the common law exceptions to that rule allow a

I defendant to set aside the plaintiffs notice of volunshytary dismissal where the plaintiff has not obtained any affirmative relief before dismissal

I [I] Rule 1420(a) permits a plaintiff to dismiss

an action without order of the court at any time before a motion for summary judgment is heard or before retirement of the jury or submission to the

I I

court if the matter is tried non-jury Our courts have consistently construed this rule as meaning that at any time before a hearing on a motion for summary judgment a party seeking affirmative reshylief has nearly an absolute right to dismiss his entire action once without a court order by serving a noshytice of dismissal Ormond Beach Assocs Ltd v Citation Mortg Ltd 835 So2d 292 295 (Fla 5th DCA 2002) see also Meyer v Contemporary

I Broadcasting Co 207 So2d 325 327 (Fla 4th

I I

DCA 1968) The courts have carved out narrow exshyceptions to this entitlement

The only recognized common law exception to the broad scope of this rule is in circumstances where the defendant demonstrates serious prejushydice such as where he is entitled to receive afshyfrrmative relief or a hearing and disposition of the case on the merits has acquired some substantial rights in the cause or where dismissal is inequitshyable See Romar Inl Inc v Jim Rathman ChevshyroletCadillac Inc 420 So2d 346 (Fla 5th DCA 1982) Visoly v Bodek 602 So2d 979 (Fla 3d DCA 1992)

Ormond 835 So2d at 295 In Visoly the court granted a motion to strike the complaint as a sham Finding that rule 1150(a) operated much like a moshytion for summary judgment the court concluded that the plaintiff could not voluntarily dismiss his complaint pursuant to rule 1420(a) where the trial court had granted the motion to strike which was equivalent to the granting of a motion for summary judgment

The most applicable common law exception to the right to a voluntary dismissal was applied in Seshylect Builders of Florida Inc v Wong 367 So2d 1089 (Fla 3d DCA 1979) There the court affirmed the trial courts striking of a notice of voluntary disshymissal where the plaintiff sought to perpetrate a fraud by the filing of the notice of voluntary disshymissal Select Builders had filed suit to expunge an injunction against a condominium developer granshyted in Federal Court in Illinois and improperly filed in the public records of Dade County The trial court issued an order expunging the document and enjoining the filing of any other like documents without domesticating the judgment in Florida Later it was discovered that Select Builders had perpetrated a fraud upon 953 the court in obtainshying the order expunging the document The trial court vacated its prior order and the appellees moved for sanctions and fees The court also ordered Select Builders to take steps to preserve the status quo and to make payment of monies it reshy

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I Page 4 57 So3d 950 36 Fla L Weekly D646

I (Cite as 57 So3d 950)

I ceived in connection with the sale of some of the property subject to the injunction to a third party Select Builders then filed a notice of voluntary disshymissal which the trial court struck to retain jurisshydiction over the case

I I The appellate court affirmed concluding that

the court correctly retained jurisdiction to prevent a fraud on the court The plaintiff had obtained the affirmative relief it sought its actions in the cause

I in the trial court may have been fraudulent on the court and it certainly was within its inherent power (as an equity court) to protect its integrity Id at 1091 The court distinguished other cases in which the plaintiffs right to take a voluntary dismissal was deemed absolute First the plaintiff in the

I cited cases had not received affirmative relief from an equity court and secondly no question of fraud on the court was involved Id

I In Select Builders the plaintiff obtained affirmshy

I ative relief by the granting of the suspect injuncshytion and it had obtained such relief by fraud Comshyparing the facts of Select Builders to this case we fmd that the BNY Mellon had not obtained any

I type of affirmative relief Even if the assignment of mortgage was fraudulent in that it was not exshyecuted by the proper party it did not result in any relief in favor of BNY Mellon Select Builders is thus distinguishable from the present case In Bevan

I v DAlessandro 395 So2d 1285 1286 (Fla 2d DCA 1981) the court likewise distinguished Select

I Builders on the grounds that the plaintiff had reshyceived affIrmative relief to which he was not enshytitled and sought to avoid correction of the trial courts error by taking a voluntary dismissal No such circumstance is present in this case

I I [2][3] The appellant argues that rule 1540(b)

also provides a method to seek relief from a notice of voluntary dismissal We disagree that the deshyfendantappellant may utilize that rule where the defendant has not been adversely affected by the voluntary dismissal Rule 1540(b) allows a court to relieve a party from a fmal judgment decree orshy

I der or proceeding based upon any of fIve grounds

I I

set out in the rule (1) mistake inadvertence surshyprise or excusable neglect (2) newly discovered evidence (3) fraud or other misconduct of an adshyverse party (4) that the judgment or decree is void or (5) that the judgment or decree has been satisfIed or released A notice of voluntary dismissal constishytutes a proceeding within the meaning of the rule See Miller v Fortune Ins Co 484 So2d 1221 1224 (Fla1986) Therefore the rule may be inshyvoked even though for all other purposes the trial court has lost jurisdiction over the cause d Inshydeed in Shampaine Industries Inc v South Broward Hospital District 411 So2d 364 368 (Fla 4th DCA 1982) approved by the supreme court in Mille~ we held Rule 1540(b) may be used to afford relief to all litigants who can demonshystrate the existence of the grounds set out in the Rule

[4] The rule however is limited to relieving a party of a judgment order or proceeding Relieve means [t]o ease or alleviate (pain distress anxishyety need etc) to ease (a person) of any burden wrong or oppression as by legal means The Ranshydom House Dictionary of the English Language 1212 (1967) A defendant may obtain such relief when a plaintiff has obtained a ruling that has adshyversely impacted the defendant Here the defendant has not been adversely impacted by a 954 ruling of the court The fact that a defendant may have inshycurred attorneys fees and costs is not an adverse impact recognized as meriting relief See Servo Exshyperts LLC V Northside Air Conditioning amp Elec Servo Inc 2010 WL 4628567 (Fla 2d DCA 2010) Therefore because the defendant has not suffered an adverse ruling or impact from the notice of volshyuntary dismissal he is not entitled to seek relief pursuant to the rule

[5] The dissent is certainly correct that a court possesses the authority to protect judicial integrity in the litigation process However the cases cited in support of a court exercising such authority all inshyvolved the court granting a motion for involuntary dismissal where the plaintiff had engaged in deceitshy

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I PageS 57 So3d 950 36 Fla L Weekly D646

I (Cite as 57 So3d 950)

ful conduct during a still pending case See Ramey

I v Haverty Furn Co 993 So2lt1 1014 1020 (Fla 2d DCA 2008) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) Morgan v Campshybell 816 So2d 251 253 (Fla 2d DCA 2002) In

I each of those proceedings the defendant moved for

I the sanction of dismissal of an ongoing proceeding based upon fraud on the court That term has been described as follows

I A fraud on the court occurs where it can be demonstrated clearly and convincingly that a party has sentiently set in motion some unconshyscionable scheme calculated to interfere with the

I judicial systems ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposshying partys claim or defense

I Aoude v Mobil Oil Corp 892 F2d I I 15 I I 18

(I st Cir1989) Dismissal is a remedy to be used

I only in the most extreme cases as [g]enerally speaking allegations of inconsistency nondisshyclosure and even falseness are best resolved by alshylowing the parties to bring them to the jurys attenshy

I tion through cross examination or impeachment rather than by dismissal of the entire action Granados v Zehr 979 So2d I ISS 1158 (Fla 5th DCA 2008) (emphasis added)

I Here we do not view it as an appropriate exershy

cise of the inherent authority of the court to reopen

I a case voluntarily dismissed by the plaintiff simply to exercise that authority to dismiss it albeit with prejudice Only in those circumstances where the defendant has been seriously prejudiced as noted

I in Romar International should the court exercise its inherent authority to strike a notice of voluntary dismissal The defendant in this case does not alshy

I lege any prejudice to him as a result of the plaintiffs voluntary dismissal of its ftrst lawsuit Inshydeed he may have benefttted by forestalling the foreclosure

The appropriate procedure is to follow Rule

I 1420 Upon the voluntary dismissal Pino would be

I I

entitled to his costs and possibly his attorneys fees See Fleet Sens Corp v Reise 857 So2d 273 (Fla 2d DCA 2003) The court can require payment as a precondition to the second suit See Fla R Civ P 1420(d) Moreover a referral of the appellees atshytorney for a violation of the Code of Professional Responsibility for ftling the complaint with the alshyleged false affidavit is in orderFN2

FN2 Notably appellees attorneys on apshypeal Akerman Sentemtt were not inshyvolved in the proceedings giving rise to the allegations of misrepresentation and fraud upon the court

We conclude that this is a question of great public importance as many many mortgage foreshyclosures appear tainted with suspect documents The defendant has requested a denial of the equitshyable right to foreclose the mortgage at all If this is an available remedy as a sanction after a voluntary dismissal it may dramatically affect the mortgage foreclosure crisis in this 955 State Accordingly we certify the following question to the Florida Sushypreme Court as of great public importance

DOES A TRIAL COURT HA VE JURISDICTION AND AUTHORITY UNDER RULE 1540(b) Fla R Civ P OR UNDER ITS INHERENT AUshyTHORITY TO GRANT RELIEF FROM A VOLshyUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE REshyLIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT

Affirmed

GROSS CJ STEVENSON TAYLOR MAY DAMOORGIAN CIKLIN GERBER LEVINE and CONNER JJ concur HAZOURI J recused POLEN J dissents with opinion

POLEN J dissentingFN3

FN3 This dissent was actually written by

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I Page 6

I 57 So 3d 95036 Fla L Weekly 0646 (Cite as 57 So3d 950)

I Judge Gary M Farmer who retired from this court December 31 2010 As Judge Farmer can no longer participate in this matter and since I concurred with his proshyposed dissent I now adopt in total his writshy

I ing Although I thoroughly agree with this dissent I want the record to reflect that the words are those of Judge Farmer

I Rule 1420(a)(l) allows a plaintiff to voluntarshy

I ily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment Initially in Randle-Eastern Ambulance Service v Vasta 360 So2d 68 (Fla1978) the court held that such a dismissal took the case out of the power of the court for all purposes explaining

I I The right to dismiss ones own lawsuit during

the course of trial is guaranteed by Rule 1420(a) endowing a plaintiff with unilateral authority to block action favorable to a defendant which the

I trial judge might be disposed to approve The efshyfect is to remove completely from the courts conshysideration the power to enter an order equivalent in all respects to a deprivation of jurisdiction If

I the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way it follows that he has no jurisdiction to reinstate a dismissed proceeding The policy reasons for this consequence support its apparent rigidity

I 360 So2d at 69 But later in Miller v Fortune

I Insurance Co 484 So2d 1221 (Fla1986) the court retreated from its statement in Randle-Eastern Ambulance about the remov[ing the cause] completely from the courts considerashy

I tion the power to enter an order Instead the Miller court specified an exception in rule 1540(b) to the complete loss of jurisdiction from a voluntary disshymissal

A trial judge is deprived of jurisdiction not by the manner in which the proceeding is terminshy

I ated but by the sheer finality of the act whether

I judgment decree order or stipulation which concludes litigation Once the litigation is terminshyated and the time for appeal has run that action is

I

concluded for all time There is one exception to this absolute fmality and this is rule 1540 which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances [es]

484 So2d at 1223 Miller explicitly held that that Rule 1540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule FN4 In this case defendant 956 contends that the court had authority here to consider his motion for relief on the merits because he asserted a specific basis aushythorized by rule 1540(b)

FN4 484 So2d at 1224 (citing Shampaine Indus v S Broward Hosp Dist 411 So2d 364 (Fla 4th DCA 1982raquo

Rule 1540(b )(3) provides

On motion and upon such terms as are just the court may relieve a party from a final judgshyment decree order or proceeding for fraud (whether intrinsic or extrinsic) misrepresentashytion or other misconduct of an adverse party [es]

In Select Builders of Florida v Wong 367 So2d 1089 (Fla 3d DCA 1979) the Third District agreed that rule 1540(b) affords a basis to strike a notice of voluntary dismissal filed to avoid sancshytions for relief from the dismissal on account of fraudulent conduct In explaining its decision the court noted that in that instance plaintiff had obshytained the affirmative relief it sought its actions in the cause in the trial court may have been fraudushylent on the court and it certainly was within its inshyherent power (as an equity court) to protect its inshytegrity 367 So2d at 1091 I do not read Select Builders to explicitly hold that affirmative relief is required to establish grounds under rule 1540(b) for relief from a voluntary dismissal done to preshyvent examination into an attempted fraud on the courtFN5

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I (Cite as 57 So3d 950)

I FN5 See also Romar Int Inc v Jim Rathman ChevroletCadillac Inc 420 So2d 346 347 (Fla 5th DCA 1982) (recognizing narrow exception exists where a fraud on the court is attempted

I [es] by the filing of the voluntary disshymissal)

In Us Porcelain Inc v Breton 502 So2dI l379 (Fla 4th DCA 1987) we tacitly recognized

I the Select Builders exception but found it inapplicshyable where [t]here are no findings nor conclusions in this case of fraud deception irregularities nor any misleading of the court 502 So2d at l380

I Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to tradishytional common law fraud indeed adding as other forms of fraudulent conduct deception irregularitshyies [ ] or any misleading ofthe court [es]

I The fact that the fraud exception applied in Seshy

I lect Builders is now commonly recognized as valid under Miller v Fortune Insurance is seen in the folshylowing exposition on the subject from the standard Florida legal encyclopedia

I I

In exercising its inherent power to protect its inshytegrity the trial court is authorized to reinstate a matter and retains jurisdiction over the cause in order to prevent a fraud on the court where it apshypears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal The originshy

I al jurisdiction over the dismissed cause first acshyquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case either by means of an indeshy

I pendent equity suit directed against the fraudushylently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases

I 1 FLAJUR2D Actions sect 231 (citing Select Builders ) see also Roger A Silver The Inherent

I Power Of The Florida Courts 39 U MIAMI L

I

REV 257 287 (1985) (Florida courts have inshyherent power to strike a voluntary dismissal (citing Select Builders raquo Henry P Trawick Jr TRAWICKS FLORIDA PRACTICE amp PROCEDshyURE sect 212 (citing Select Builders ) 25 TRIAL ADVOCATE QUARTERLY 22 23 (discussing Seshylect Builders ) All the texts base the courts authorshyity to grant relief on the inherent power of the judges to protect the integrity957 of the court sysshytem in the litigation process

In opposing defendants motion for relief under rule 1540(b) BNY Mellon relies on Bevan v DAlessandro 395 So2d 1285 (Fla 2d DCA 1981) There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court FN6 BNY Mellon argued that similarly it had obtained no reshylief or benefit at that point in the action from the filing of the revised assignment In denying defendshyants motion for relief under rule 1540(b) the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon Curiously neither Bevan nor BNY Mellon makes any attempt to argue why as a matter of simple jurisprudence courts should be precluded from scrutinizing the use of a volunshytary dismissal after an unsuccessful attempt to deshyceive mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit

FN6 We note that Bevan was decided sevshyeral years before the supreme court deshycided Miller v Fortune Insurance

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal In volunshytarily dismissing the case at that point it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court In fact it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents It continued to use the voluntary dis-

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I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

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I I

I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

I I

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57 So3d 95036 Fla L Weekly 0646

END OF DOCUMENT

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I I

- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

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CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

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r)I I

CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

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CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

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CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

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CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

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CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

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CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 5: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I Page 4 57 So3d 950 36 Fla L Weekly D646

I (Cite as 57 So3d 950)

I ceived in connection with the sale of some of the property subject to the injunction to a third party Select Builders then filed a notice of voluntary disshymissal which the trial court struck to retain jurisshydiction over the case

I I The appellate court affirmed concluding that

the court correctly retained jurisdiction to prevent a fraud on the court The plaintiff had obtained the affirmative relief it sought its actions in the cause

I in the trial court may have been fraudulent on the court and it certainly was within its inherent power (as an equity court) to protect its integrity Id at 1091 The court distinguished other cases in which the plaintiffs right to take a voluntary dismissal was deemed absolute First the plaintiff in the

I cited cases had not received affirmative relief from an equity court and secondly no question of fraud on the court was involved Id

I In Select Builders the plaintiff obtained affirmshy

I ative relief by the granting of the suspect injuncshytion and it had obtained such relief by fraud Comshyparing the facts of Select Builders to this case we fmd that the BNY Mellon had not obtained any

I type of affirmative relief Even if the assignment of mortgage was fraudulent in that it was not exshyecuted by the proper party it did not result in any relief in favor of BNY Mellon Select Builders is thus distinguishable from the present case In Bevan

I v DAlessandro 395 So2d 1285 1286 (Fla 2d DCA 1981) the court likewise distinguished Select

I Builders on the grounds that the plaintiff had reshyceived affIrmative relief to which he was not enshytitled and sought to avoid correction of the trial courts error by taking a voluntary dismissal No such circumstance is present in this case

I I [2][3] The appellant argues that rule 1540(b)

also provides a method to seek relief from a notice of voluntary dismissal We disagree that the deshyfendantappellant may utilize that rule where the defendant has not been adversely affected by the voluntary dismissal Rule 1540(b) allows a court to relieve a party from a fmal judgment decree orshy

I der or proceeding based upon any of fIve grounds

I I

set out in the rule (1) mistake inadvertence surshyprise or excusable neglect (2) newly discovered evidence (3) fraud or other misconduct of an adshyverse party (4) that the judgment or decree is void or (5) that the judgment or decree has been satisfIed or released A notice of voluntary dismissal constishytutes a proceeding within the meaning of the rule See Miller v Fortune Ins Co 484 So2d 1221 1224 (Fla1986) Therefore the rule may be inshyvoked even though for all other purposes the trial court has lost jurisdiction over the cause d Inshydeed in Shampaine Industries Inc v South Broward Hospital District 411 So2d 364 368 (Fla 4th DCA 1982) approved by the supreme court in Mille~ we held Rule 1540(b) may be used to afford relief to all litigants who can demonshystrate the existence of the grounds set out in the Rule

[4] The rule however is limited to relieving a party of a judgment order or proceeding Relieve means [t]o ease or alleviate (pain distress anxishyety need etc) to ease (a person) of any burden wrong or oppression as by legal means The Ranshydom House Dictionary of the English Language 1212 (1967) A defendant may obtain such relief when a plaintiff has obtained a ruling that has adshyversely impacted the defendant Here the defendant has not been adversely impacted by a 954 ruling of the court The fact that a defendant may have inshycurred attorneys fees and costs is not an adverse impact recognized as meriting relief See Servo Exshyperts LLC V Northside Air Conditioning amp Elec Servo Inc 2010 WL 4628567 (Fla 2d DCA 2010) Therefore because the defendant has not suffered an adverse ruling or impact from the notice of volshyuntary dismissal he is not entitled to seek relief pursuant to the rule

[5] The dissent is certainly correct that a court possesses the authority to protect judicial integrity in the litigation process However the cases cited in support of a court exercising such authority all inshyvolved the court granting a motion for involuntary dismissal where the plaintiff had engaged in deceitshy

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I PageS 57 So3d 950 36 Fla L Weekly D646

I (Cite as 57 So3d 950)

ful conduct during a still pending case See Ramey

I v Haverty Furn Co 993 So2lt1 1014 1020 (Fla 2d DCA 2008) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) Morgan v Campshybell 816 So2d 251 253 (Fla 2d DCA 2002) In

I each of those proceedings the defendant moved for

I the sanction of dismissal of an ongoing proceeding based upon fraud on the court That term has been described as follows

I A fraud on the court occurs where it can be demonstrated clearly and convincingly that a party has sentiently set in motion some unconshyscionable scheme calculated to interfere with the

I judicial systems ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposshying partys claim or defense

I Aoude v Mobil Oil Corp 892 F2d I I 15 I I 18

(I st Cir1989) Dismissal is a remedy to be used

I only in the most extreme cases as [g]enerally speaking allegations of inconsistency nondisshyclosure and even falseness are best resolved by alshylowing the parties to bring them to the jurys attenshy

I tion through cross examination or impeachment rather than by dismissal of the entire action Granados v Zehr 979 So2d I ISS 1158 (Fla 5th DCA 2008) (emphasis added)

I Here we do not view it as an appropriate exershy

cise of the inherent authority of the court to reopen

I a case voluntarily dismissed by the plaintiff simply to exercise that authority to dismiss it albeit with prejudice Only in those circumstances where the defendant has been seriously prejudiced as noted

I in Romar International should the court exercise its inherent authority to strike a notice of voluntary dismissal The defendant in this case does not alshy

I lege any prejudice to him as a result of the plaintiffs voluntary dismissal of its ftrst lawsuit Inshydeed he may have benefttted by forestalling the foreclosure

The appropriate procedure is to follow Rule

I 1420 Upon the voluntary dismissal Pino would be

I I

entitled to his costs and possibly his attorneys fees See Fleet Sens Corp v Reise 857 So2d 273 (Fla 2d DCA 2003) The court can require payment as a precondition to the second suit See Fla R Civ P 1420(d) Moreover a referral of the appellees atshytorney for a violation of the Code of Professional Responsibility for ftling the complaint with the alshyleged false affidavit is in orderFN2

FN2 Notably appellees attorneys on apshypeal Akerman Sentemtt were not inshyvolved in the proceedings giving rise to the allegations of misrepresentation and fraud upon the court

We conclude that this is a question of great public importance as many many mortgage foreshyclosures appear tainted with suspect documents The defendant has requested a denial of the equitshyable right to foreclose the mortgage at all If this is an available remedy as a sanction after a voluntary dismissal it may dramatically affect the mortgage foreclosure crisis in this 955 State Accordingly we certify the following question to the Florida Sushypreme Court as of great public importance

DOES A TRIAL COURT HA VE JURISDICTION AND AUTHORITY UNDER RULE 1540(b) Fla R Civ P OR UNDER ITS INHERENT AUshyTHORITY TO GRANT RELIEF FROM A VOLshyUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE REshyLIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT

Affirmed

GROSS CJ STEVENSON TAYLOR MAY DAMOORGIAN CIKLIN GERBER LEVINE and CONNER JJ concur HAZOURI J recused POLEN J dissents with opinion

POLEN J dissentingFN3

FN3 This dissent was actually written by

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I 57 So 3d 95036 Fla L Weekly 0646 (Cite as 57 So3d 950)

I Judge Gary M Farmer who retired from this court December 31 2010 As Judge Farmer can no longer participate in this matter and since I concurred with his proshyposed dissent I now adopt in total his writshy

I ing Although I thoroughly agree with this dissent I want the record to reflect that the words are those of Judge Farmer

I Rule 1420(a)(l) allows a plaintiff to voluntarshy

I ily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment Initially in Randle-Eastern Ambulance Service v Vasta 360 So2d 68 (Fla1978) the court held that such a dismissal took the case out of the power of the court for all purposes explaining

I I The right to dismiss ones own lawsuit during

the course of trial is guaranteed by Rule 1420(a) endowing a plaintiff with unilateral authority to block action favorable to a defendant which the

I trial judge might be disposed to approve The efshyfect is to remove completely from the courts conshysideration the power to enter an order equivalent in all respects to a deprivation of jurisdiction If

I the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way it follows that he has no jurisdiction to reinstate a dismissed proceeding The policy reasons for this consequence support its apparent rigidity

I 360 So2d at 69 But later in Miller v Fortune

I Insurance Co 484 So2d 1221 (Fla1986) the court retreated from its statement in Randle-Eastern Ambulance about the remov[ing the cause] completely from the courts considerashy

I tion the power to enter an order Instead the Miller court specified an exception in rule 1540(b) to the complete loss of jurisdiction from a voluntary disshymissal

A trial judge is deprived of jurisdiction not by the manner in which the proceeding is terminshy

I ated but by the sheer finality of the act whether

I judgment decree order or stipulation which concludes litigation Once the litigation is terminshyated and the time for appeal has run that action is

I

concluded for all time There is one exception to this absolute fmality and this is rule 1540 which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances [es]

484 So2d at 1223 Miller explicitly held that that Rule 1540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule FN4 In this case defendant 956 contends that the court had authority here to consider his motion for relief on the merits because he asserted a specific basis aushythorized by rule 1540(b)

FN4 484 So2d at 1224 (citing Shampaine Indus v S Broward Hosp Dist 411 So2d 364 (Fla 4th DCA 1982raquo

Rule 1540(b )(3) provides

On motion and upon such terms as are just the court may relieve a party from a final judgshyment decree order or proceeding for fraud (whether intrinsic or extrinsic) misrepresentashytion or other misconduct of an adverse party [es]

In Select Builders of Florida v Wong 367 So2d 1089 (Fla 3d DCA 1979) the Third District agreed that rule 1540(b) affords a basis to strike a notice of voluntary dismissal filed to avoid sancshytions for relief from the dismissal on account of fraudulent conduct In explaining its decision the court noted that in that instance plaintiff had obshytained the affirmative relief it sought its actions in the cause in the trial court may have been fraudushylent on the court and it certainly was within its inshyherent power (as an equity court) to protect its inshytegrity 367 So2d at 1091 I do not read Select Builders to explicitly hold that affirmative relief is required to establish grounds under rule 1540(b) for relief from a voluntary dismissal done to preshyvent examination into an attempted fraud on the courtFN5

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I (Cite as 57 So3d 950)

I FN5 See also Romar Int Inc v Jim Rathman ChevroletCadillac Inc 420 So2d 346 347 (Fla 5th DCA 1982) (recognizing narrow exception exists where a fraud on the court is attempted

I [es] by the filing of the voluntary disshymissal)

In Us Porcelain Inc v Breton 502 So2dI l379 (Fla 4th DCA 1987) we tacitly recognized

I the Select Builders exception but found it inapplicshyable where [t]here are no findings nor conclusions in this case of fraud deception irregularities nor any misleading of the court 502 So2d at l380

I Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to tradishytional common law fraud indeed adding as other forms of fraudulent conduct deception irregularitshyies [ ] or any misleading ofthe court [es]

I The fact that the fraud exception applied in Seshy

I lect Builders is now commonly recognized as valid under Miller v Fortune Insurance is seen in the folshylowing exposition on the subject from the standard Florida legal encyclopedia

I I

In exercising its inherent power to protect its inshytegrity the trial court is authorized to reinstate a matter and retains jurisdiction over the cause in order to prevent a fraud on the court where it apshypears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal The originshy

I al jurisdiction over the dismissed cause first acshyquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case either by means of an indeshy

I pendent equity suit directed against the fraudushylently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases

I 1 FLAJUR2D Actions sect 231 (citing Select Builders ) see also Roger A Silver The Inherent

I Power Of The Florida Courts 39 U MIAMI L

I

REV 257 287 (1985) (Florida courts have inshyherent power to strike a voluntary dismissal (citing Select Builders raquo Henry P Trawick Jr TRAWICKS FLORIDA PRACTICE amp PROCEDshyURE sect 212 (citing Select Builders ) 25 TRIAL ADVOCATE QUARTERLY 22 23 (discussing Seshylect Builders ) All the texts base the courts authorshyity to grant relief on the inherent power of the judges to protect the integrity957 of the court sysshytem in the litigation process

In opposing defendants motion for relief under rule 1540(b) BNY Mellon relies on Bevan v DAlessandro 395 So2d 1285 (Fla 2d DCA 1981) There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court FN6 BNY Mellon argued that similarly it had obtained no reshylief or benefit at that point in the action from the filing of the revised assignment In denying defendshyants motion for relief under rule 1540(b) the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon Curiously neither Bevan nor BNY Mellon makes any attempt to argue why as a matter of simple jurisprudence courts should be precluded from scrutinizing the use of a volunshytary dismissal after an unsuccessful attempt to deshyceive mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit

FN6 We note that Bevan was decided sevshyeral years before the supreme court deshycided Miller v Fortune Insurance

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal In volunshytarily dismissing the case at that point it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court In fact it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents It continued to use the voluntary dis-

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missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

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I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

I I

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57 So3d 95036 Fla L Weekly 0646

END OF DOCUMENT

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I I

- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

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CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

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CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

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I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

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I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

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CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

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CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

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CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

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CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

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CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

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CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

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CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

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CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 6: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I PageS 57 So3d 950 36 Fla L Weekly D646

I (Cite as 57 So3d 950)

ful conduct during a still pending case See Ramey

I v Haverty Furn Co 993 So2lt1 1014 1020 (Fla 2d DCA 2008) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) Morgan v Campshybell 816 So2d 251 253 (Fla 2d DCA 2002) In

I each of those proceedings the defendant moved for

I the sanction of dismissal of an ongoing proceeding based upon fraud on the court That term has been described as follows

I A fraud on the court occurs where it can be demonstrated clearly and convincingly that a party has sentiently set in motion some unconshyscionable scheme calculated to interfere with the

I judicial systems ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposshying partys claim or defense

I Aoude v Mobil Oil Corp 892 F2d I I 15 I I 18

(I st Cir1989) Dismissal is a remedy to be used

I only in the most extreme cases as [g]enerally speaking allegations of inconsistency nondisshyclosure and even falseness are best resolved by alshylowing the parties to bring them to the jurys attenshy

I tion through cross examination or impeachment rather than by dismissal of the entire action Granados v Zehr 979 So2d I ISS 1158 (Fla 5th DCA 2008) (emphasis added)

I Here we do not view it as an appropriate exershy

cise of the inherent authority of the court to reopen

I a case voluntarily dismissed by the plaintiff simply to exercise that authority to dismiss it albeit with prejudice Only in those circumstances where the defendant has been seriously prejudiced as noted

I in Romar International should the court exercise its inherent authority to strike a notice of voluntary dismissal The defendant in this case does not alshy

I lege any prejudice to him as a result of the plaintiffs voluntary dismissal of its ftrst lawsuit Inshydeed he may have benefttted by forestalling the foreclosure

The appropriate procedure is to follow Rule

I 1420 Upon the voluntary dismissal Pino would be

I I

entitled to his costs and possibly his attorneys fees See Fleet Sens Corp v Reise 857 So2d 273 (Fla 2d DCA 2003) The court can require payment as a precondition to the second suit See Fla R Civ P 1420(d) Moreover a referral of the appellees atshytorney for a violation of the Code of Professional Responsibility for ftling the complaint with the alshyleged false affidavit is in orderFN2

FN2 Notably appellees attorneys on apshypeal Akerman Sentemtt were not inshyvolved in the proceedings giving rise to the allegations of misrepresentation and fraud upon the court

We conclude that this is a question of great public importance as many many mortgage foreshyclosures appear tainted with suspect documents The defendant has requested a denial of the equitshyable right to foreclose the mortgage at all If this is an available remedy as a sanction after a voluntary dismissal it may dramatically affect the mortgage foreclosure crisis in this 955 State Accordingly we certify the following question to the Florida Sushypreme Court as of great public importance

DOES A TRIAL COURT HA VE JURISDICTION AND AUTHORITY UNDER RULE 1540(b) Fla R Civ P OR UNDER ITS INHERENT AUshyTHORITY TO GRANT RELIEF FROM A VOLshyUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE REshyLIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT

Affirmed

GROSS CJ STEVENSON TAYLOR MAY DAMOORGIAN CIKLIN GERBER LEVINE and CONNER JJ concur HAZOURI J recused POLEN J dissents with opinion

POLEN J dissentingFN3

FN3 This dissent was actually written by

copy 2012 Thomson Reuters No Claim to Orig US Gov Works

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I Page 6

I 57 So 3d 95036 Fla L Weekly 0646 (Cite as 57 So3d 950)

I Judge Gary M Farmer who retired from this court December 31 2010 As Judge Farmer can no longer participate in this matter and since I concurred with his proshyposed dissent I now adopt in total his writshy

I ing Although I thoroughly agree with this dissent I want the record to reflect that the words are those of Judge Farmer

I Rule 1420(a)(l) allows a plaintiff to voluntarshy

I ily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment Initially in Randle-Eastern Ambulance Service v Vasta 360 So2d 68 (Fla1978) the court held that such a dismissal took the case out of the power of the court for all purposes explaining

I I The right to dismiss ones own lawsuit during

the course of trial is guaranteed by Rule 1420(a) endowing a plaintiff with unilateral authority to block action favorable to a defendant which the

I trial judge might be disposed to approve The efshyfect is to remove completely from the courts conshysideration the power to enter an order equivalent in all respects to a deprivation of jurisdiction If

I the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way it follows that he has no jurisdiction to reinstate a dismissed proceeding The policy reasons for this consequence support its apparent rigidity

I 360 So2d at 69 But later in Miller v Fortune

I Insurance Co 484 So2d 1221 (Fla1986) the court retreated from its statement in Randle-Eastern Ambulance about the remov[ing the cause] completely from the courts considerashy

I tion the power to enter an order Instead the Miller court specified an exception in rule 1540(b) to the complete loss of jurisdiction from a voluntary disshymissal

A trial judge is deprived of jurisdiction not by the manner in which the proceeding is terminshy

I ated but by the sheer finality of the act whether

I judgment decree order or stipulation which concludes litigation Once the litigation is terminshyated and the time for appeal has run that action is

I

concluded for all time There is one exception to this absolute fmality and this is rule 1540 which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances [es]

484 So2d at 1223 Miller explicitly held that that Rule 1540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule FN4 In this case defendant 956 contends that the court had authority here to consider his motion for relief on the merits because he asserted a specific basis aushythorized by rule 1540(b)

FN4 484 So2d at 1224 (citing Shampaine Indus v S Broward Hosp Dist 411 So2d 364 (Fla 4th DCA 1982raquo

Rule 1540(b )(3) provides

On motion and upon such terms as are just the court may relieve a party from a final judgshyment decree order or proceeding for fraud (whether intrinsic or extrinsic) misrepresentashytion or other misconduct of an adverse party [es]

In Select Builders of Florida v Wong 367 So2d 1089 (Fla 3d DCA 1979) the Third District agreed that rule 1540(b) affords a basis to strike a notice of voluntary dismissal filed to avoid sancshytions for relief from the dismissal on account of fraudulent conduct In explaining its decision the court noted that in that instance plaintiff had obshytained the affirmative relief it sought its actions in the cause in the trial court may have been fraudushylent on the court and it certainly was within its inshyherent power (as an equity court) to protect its inshytegrity 367 So2d at 1091 I do not read Select Builders to explicitly hold that affirmative relief is required to establish grounds under rule 1540(b) for relief from a voluntary dismissal done to preshyvent examination into an attempted fraud on the courtFN5

I copy 2012 Thomson Reuters No Claim to Orig US Gov Works

I I

I Page 7 57 So3d 95036 Fla L Weekly 0646

I (Cite as 57 So3d 950)

I FN5 See also Romar Int Inc v Jim Rathman ChevroletCadillac Inc 420 So2d 346 347 (Fla 5th DCA 1982) (recognizing narrow exception exists where a fraud on the court is attempted

I [es] by the filing of the voluntary disshymissal)

In Us Porcelain Inc v Breton 502 So2dI l379 (Fla 4th DCA 1987) we tacitly recognized

I the Select Builders exception but found it inapplicshyable where [t]here are no findings nor conclusions in this case of fraud deception irregularities nor any misleading of the court 502 So2d at l380

I Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to tradishytional common law fraud indeed adding as other forms of fraudulent conduct deception irregularitshyies [ ] or any misleading ofthe court [es]

I The fact that the fraud exception applied in Seshy

I lect Builders is now commonly recognized as valid under Miller v Fortune Insurance is seen in the folshylowing exposition on the subject from the standard Florida legal encyclopedia

I I

In exercising its inherent power to protect its inshytegrity the trial court is authorized to reinstate a matter and retains jurisdiction over the cause in order to prevent a fraud on the court where it apshypears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal The originshy

I al jurisdiction over the dismissed cause first acshyquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case either by means of an indeshy

I pendent equity suit directed against the fraudushylently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases

I 1 FLAJUR2D Actions sect 231 (citing Select Builders ) see also Roger A Silver The Inherent

I Power Of The Florida Courts 39 U MIAMI L

I

REV 257 287 (1985) (Florida courts have inshyherent power to strike a voluntary dismissal (citing Select Builders raquo Henry P Trawick Jr TRAWICKS FLORIDA PRACTICE amp PROCEDshyURE sect 212 (citing Select Builders ) 25 TRIAL ADVOCATE QUARTERLY 22 23 (discussing Seshylect Builders ) All the texts base the courts authorshyity to grant relief on the inherent power of the judges to protect the integrity957 of the court sysshytem in the litigation process

In opposing defendants motion for relief under rule 1540(b) BNY Mellon relies on Bevan v DAlessandro 395 So2d 1285 (Fla 2d DCA 1981) There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court FN6 BNY Mellon argued that similarly it had obtained no reshylief or benefit at that point in the action from the filing of the revised assignment In denying defendshyants motion for relief under rule 1540(b) the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon Curiously neither Bevan nor BNY Mellon makes any attempt to argue why as a matter of simple jurisprudence courts should be precluded from scrutinizing the use of a volunshytary dismissal after an unsuccessful attempt to deshyceive mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit

FN6 We note that Bevan was decided sevshyeral years before the supreme court deshycided Miller v Fortune Insurance

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal In volunshytarily dismissing the case at that point it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court In fact it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents It continued to use the voluntary dis-

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I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

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I I

I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

I I

Page 10

57 So3d 95036 Fla L Weekly 0646

END OF DOCUMENT

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I I

- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

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I bull

I I I I I I I I I I I I I I I I

)

CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

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r)I I

CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

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CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

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CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

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I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

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I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

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CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

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CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 7: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I Page 6

I 57 So 3d 95036 Fla L Weekly 0646 (Cite as 57 So3d 950)

I Judge Gary M Farmer who retired from this court December 31 2010 As Judge Farmer can no longer participate in this matter and since I concurred with his proshyposed dissent I now adopt in total his writshy

I ing Although I thoroughly agree with this dissent I want the record to reflect that the words are those of Judge Farmer

I Rule 1420(a)(l) allows a plaintiff to voluntarshy

I ily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment Initially in Randle-Eastern Ambulance Service v Vasta 360 So2d 68 (Fla1978) the court held that such a dismissal took the case out of the power of the court for all purposes explaining

I I The right to dismiss ones own lawsuit during

the course of trial is guaranteed by Rule 1420(a) endowing a plaintiff with unilateral authority to block action favorable to a defendant which the

I trial judge might be disposed to approve The efshyfect is to remove completely from the courts conshysideration the power to enter an order equivalent in all respects to a deprivation of jurisdiction If

I the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way it follows that he has no jurisdiction to reinstate a dismissed proceeding The policy reasons for this consequence support its apparent rigidity

I 360 So2d at 69 But later in Miller v Fortune

I Insurance Co 484 So2d 1221 (Fla1986) the court retreated from its statement in Randle-Eastern Ambulance about the remov[ing the cause] completely from the courts considerashy

I tion the power to enter an order Instead the Miller court specified an exception in rule 1540(b) to the complete loss of jurisdiction from a voluntary disshymissal

A trial judge is deprived of jurisdiction not by the manner in which the proceeding is terminshy

I ated but by the sheer finality of the act whether

I judgment decree order or stipulation which concludes litigation Once the litigation is terminshyated and the time for appeal has run that action is

I

concluded for all time There is one exception to this absolute fmality and this is rule 1540 which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances [es]

484 So2d at 1223 Miller explicitly held that that Rule 1540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule FN4 In this case defendant 956 contends that the court had authority here to consider his motion for relief on the merits because he asserted a specific basis aushythorized by rule 1540(b)

FN4 484 So2d at 1224 (citing Shampaine Indus v S Broward Hosp Dist 411 So2d 364 (Fla 4th DCA 1982raquo

Rule 1540(b )(3) provides

On motion and upon such terms as are just the court may relieve a party from a final judgshyment decree order or proceeding for fraud (whether intrinsic or extrinsic) misrepresentashytion or other misconduct of an adverse party [es]

In Select Builders of Florida v Wong 367 So2d 1089 (Fla 3d DCA 1979) the Third District agreed that rule 1540(b) affords a basis to strike a notice of voluntary dismissal filed to avoid sancshytions for relief from the dismissal on account of fraudulent conduct In explaining its decision the court noted that in that instance plaintiff had obshytained the affirmative relief it sought its actions in the cause in the trial court may have been fraudushylent on the court and it certainly was within its inshyherent power (as an equity court) to protect its inshytegrity 367 So2d at 1091 I do not read Select Builders to explicitly hold that affirmative relief is required to establish grounds under rule 1540(b) for relief from a voluntary dismissal done to preshyvent examination into an attempted fraud on the courtFN5

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I (Cite as 57 So3d 950)

I FN5 See also Romar Int Inc v Jim Rathman ChevroletCadillac Inc 420 So2d 346 347 (Fla 5th DCA 1982) (recognizing narrow exception exists where a fraud on the court is attempted

I [es] by the filing of the voluntary disshymissal)

In Us Porcelain Inc v Breton 502 So2dI l379 (Fla 4th DCA 1987) we tacitly recognized

I the Select Builders exception but found it inapplicshyable where [t]here are no findings nor conclusions in this case of fraud deception irregularities nor any misleading of the court 502 So2d at l380

I Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to tradishytional common law fraud indeed adding as other forms of fraudulent conduct deception irregularitshyies [ ] or any misleading ofthe court [es]

I The fact that the fraud exception applied in Seshy

I lect Builders is now commonly recognized as valid under Miller v Fortune Insurance is seen in the folshylowing exposition on the subject from the standard Florida legal encyclopedia

I I

In exercising its inherent power to protect its inshytegrity the trial court is authorized to reinstate a matter and retains jurisdiction over the cause in order to prevent a fraud on the court where it apshypears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal The originshy

I al jurisdiction over the dismissed cause first acshyquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case either by means of an indeshy

I pendent equity suit directed against the fraudushylently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases

I 1 FLAJUR2D Actions sect 231 (citing Select Builders ) see also Roger A Silver The Inherent

I Power Of The Florida Courts 39 U MIAMI L

I

REV 257 287 (1985) (Florida courts have inshyherent power to strike a voluntary dismissal (citing Select Builders raquo Henry P Trawick Jr TRAWICKS FLORIDA PRACTICE amp PROCEDshyURE sect 212 (citing Select Builders ) 25 TRIAL ADVOCATE QUARTERLY 22 23 (discussing Seshylect Builders ) All the texts base the courts authorshyity to grant relief on the inherent power of the judges to protect the integrity957 of the court sysshytem in the litigation process

In opposing defendants motion for relief under rule 1540(b) BNY Mellon relies on Bevan v DAlessandro 395 So2d 1285 (Fla 2d DCA 1981) There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court FN6 BNY Mellon argued that similarly it had obtained no reshylief or benefit at that point in the action from the filing of the revised assignment In denying defendshyants motion for relief under rule 1540(b) the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon Curiously neither Bevan nor BNY Mellon makes any attempt to argue why as a matter of simple jurisprudence courts should be precluded from scrutinizing the use of a volunshytary dismissal after an unsuccessful attempt to deshyceive mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit

FN6 We note that Bevan was decided sevshyeral years before the supreme court deshycided Miller v Fortune Insurance

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal In volunshytarily dismissing the case at that point it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court In fact it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents It continued to use the voluntary dis-

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I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

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I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

I I

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57 So3d 95036 Fla L Weekly 0646

END OF DOCUMENT

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I I

- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

I I

I bull

I I I I I I I I I I I I I I I I

)

CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

I I

r)I I

CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

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I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 8: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I Page 7 57 So3d 95036 Fla L Weekly 0646

I (Cite as 57 So3d 950)

I FN5 See also Romar Int Inc v Jim Rathman ChevroletCadillac Inc 420 So2d 346 347 (Fla 5th DCA 1982) (recognizing narrow exception exists where a fraud on the court is attempted

I [es] by the filing of the voluntary disshymissal)

In Us Porcelain Inc v Breton 502 So2dI l379 (Fla 4th DCA 1987) we tacitly recognized

I the Select Builders exception but found it inapplicshyable where [t]here are no findings nor conclusions in this case of fraud deception irregularities nor any misleading of the court 502 So2d at l380

I Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to tradishytional common law fraud indeed adding as other forms of fraudulent conduct deception irregularitshyies [ ] or any misleading ofthe court [es]

I The fact that the fraud exception applied in Seshy

I lect Builders is now commonly recognized as valid under Miller v Fortune Insurance is seen in the folshylowing exposition on the subject from the standard Florida legal encyclopedia

I I

In exercising its inherent power to protect its inshytegrity the trial court is authorized to reinstate a matter and retains jurisdiction over the cause in order to prevent a fraud on the court where it apshypears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal The originshy

I al jurisdiction over the dismissed cause first acshyquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case either by means of an indeshy

I pendent equity suit directed against the fraudushylently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases

I 1 FLAJUR2D Actions sect 231 (citing Select Builders ) see also Roger A Silver The Inherent

I Power Of The Florida Courts 39 U MIAMI L

I

REV 257 287 (1985) (Florida courts have inshyherent power to strike a voluntary dismissal (citing Select Builders raquo Henry P Trawick Jr TRAWICKS FLORIDA PRACTICE amp PROCEDshyURE sect 212 (citing Select Builders ) 25 TRIAL ADVOCATE QUARTERLY 22 23 (discussing Seshylect Builders ) All the texts base the courts authorshyity to grant relief on the inherent power of the judges to protect the integrity957 of the court sysshytem in the litigation process

In opposing defendants motion for relief under rule 1540(b) BNY Mellon relies on Bevan v DAlessandro 395 So2d 1285 (Fla 2d DCA 1981) There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court FN6 BNY Mellon argued that similarly it had obtained no reshylief or benefit at that point in the action from the filing of the revised assignment In denying defendshyants motion for relief under rule 1540(b) the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon Curiously neither Bevan nor BNY Mellon makes any attempt to argue why as a matter of simple jurisprudence courts should be precluded from scrutinizing the use of a volunshytary dismissal after an unsuccessful attempt to deshyceive mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit

FN6 We note that Bevan was decided sevshyeral years before the supreme court deshycided Miller v Fortune Insurance

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal In volunshytarily dismissing the case at that point it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court In fact it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents It continued to use the voluntary dis-

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I I

I Page 8

I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I I

I Page 9

I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

I copy 2012 Thomson Reuters No Claim to Orig US Gov Works

I I

I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

I I

Page 10

57 So3d 95036 Fla L Weekly 0646

END OF DOCUMENT

copy 2012 Thomson Reuters No Claim to Orig US Gov Works

I I

- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

I I

I bull

I I I I I I I I I I I I I I I I

)

CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

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CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

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I I

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I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

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I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

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CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

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CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

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CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

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CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

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CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

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CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

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CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

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CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

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Page 9: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

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I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

missal to stop the trial court from inquiring into the

I matter arguing the absence of jurisdiction to do so To the extent that Miller v Fortune Insurance can be read to require as a precondition to relief under rule 1540(b) from a voluntary dismissal that the

I false document benefited the filer in some way we conclude that any necessary benefit has been shown in this case

I Nor do I fmd the recent decision in Service Exshy

I perts LLC v Northside Air Conditioning amp Elecshytrical Service 56 So3d 26 (Fla 2d DCA 2010) apshyposite to the issue in this case There plaintiff filed a voluntary dismissal of the action after almost

I two years of litigation after [defendants] served ofshyfers of judgment after the close of discovery and after [defendants] moved for summary judgment 56 So3d 26 at 28 Defendants moved under rule 1420 FN7 to strike the voluntary dismissal arguing that earlier in the case plaintiff had filed

I fraudulent affidavits The trial court did not deshy

I termine whether a fraud on the court had occurred Instead it found that defendants had satisfied the common law exception to rule 1420 allowing for voluntary dismissals by showing they acquired

I substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment by making offers of judgment and by setting forth conshyvincing allegations of fraud all of which would be lost if the dismissal without prejudice were allowed to stand 56 So3d 26 at 28 Accordingly it gave

I the parties the option of going to trial or scheduling

I an evidentiary hearing on whether there had actushyally been any fraud on the court Plaintiff thereupon appealed that order on the grounds that it infringed its right of 958 voluntary dismissal Because Sershy

I vice Experts is obviously based solely on rule 1420 rather than on a showing of fraud for relief under rule 1540(b) it is not dispositive of the issue presented in this case

FN7 Defendants said that their motion to

I strike the notice of voluntary dismissal was not made under rule 1540 because that rule applies to final judgments decrees or-

I I

ders or proceedings and the voluntary disshymissal they sought to set aside was not a fishynal judgment decree or order The Second District agreed with that procedural asshysessment

But in any event I disagree with Select Buildshyers Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary disshymissal filed after an attempted fraud on the court has been appropriately raised Nothing in the logic of Miller v Fortune Insurance allowing rule 1540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reshyliance -ie in successfully deceiving a court into an outcome directly resulting from fraud-but in the mere effort itself to try to use false and fraudushylent evidence in a court proceedingFNs As with criminal law where the failed attempt itself is an offense punished by law FN9 the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust erroneous judgment

FN8 See Lance v Wade 457 So2d 1008 1011 (Flal984) (common law fraud reshyquires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff) see also Palm as Y Bambu SA v pound1 DuPont de Nemours amp Co 881 So2d 565 573 (Fla 3d DCA 2004) (when fraudulent misrepresentation is alleged dirshyect causation can be proved only by estabshylishing detrimental reliance)

FN9 See sect 77704(1) Fla Stat (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execu-

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I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

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I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

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IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

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CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

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CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

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I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

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CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

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CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

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CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

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CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

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CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

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CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

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CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

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CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 10: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I Page 9

I 57 So3d 95036 Fla L Weekly D646 (Cite as 57 So3d 950)

I tion thereof) see also sect 81754 Fla Stat (2010) (third degree felony to-with intent to defraud-obtain[ ] the signature of any person to any mortgage mortgage note promissory note or other instrument evidshy

I encing a debt by color or aid of fraudulent

I or false representation or pretenses or obshytain[ ] the signature of any person to a mortgage mortgage note promissory note or other instrument evidencing a debt the false making whereof would be punishable as forgery)

I Indeed there are a number of reported decisions

I I

by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits See eg Ramey v Haverty Furn Co 993 So2d 1014 1019 (Fla 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in disshycovery about prior medical treatment directly reshy

I lated to the central issue in the case) McKnight v Evancheck 907 So2d 699 700 (Fla 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff lied about his exshy

I tensive medical history which had a direct bearing on his claim for damages) Morgan v Campbell 816 So2d 251 253 (Fla 2d DCA 2002) (false testishymony in discovery directly related to the central issue in the case) We are hard pressed to distinshyguish in substance the imposition of sanctions in

I those cases from the one at hand

I One federal appellate decision makes the point

well In Aoude v Mobil Oil Corp 892 F2d 1115 (1 st Cir1989) the plaintiff filed a complaint based

I upon a bogus contract and attached that bogus docshyument to its complaint When the defendant became aware of the falsity of the contract sued upon it moved to dismiss the case for the attempted fraud on court The trial court granted the motion When plaintiff later refiled its claim and attached the real

I contract defendant again moved to dismiss 959 arguing that the dismissal of the first case barred the claim permanently The trial court again granted

I I

the motion The court of appeals affirmed both holdings In an appeal plaintiff argued that the atshytempted fraud arising from the use of the bogus agreement had no effect ultimately on defendants ability to litigate the case or on the courts ability to make a just decision on the merits The court rejecshyted the argument on appeal that the attempt to deshyfraud the court had failed and thus could escape punishment responding

The failure of a partys corrupt plan does not imshymunize the defrauder from the consequences of his misconduct When [plaintiff] concocted the agreement and thereafter when he and his counshysel annexed it to the complaint they plainly thought it material That being so [t]hey are in no position now to dispute its effectiveness

892 F2d at 1120

So too BNY Mellons attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for-and the mashyteriality of-a valid assignment of mortgage Deshyfendants colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud As Aoude forceshyfully makes clear a party should not escape reshysponsibility and appropriate sanctions for unsucshycessfully attempting to defraud a court by purposeshyfully evading the issue through a voluntary disshymissal

This issue is one of unusual prominence and importance Recently the Supreme Court promulshygated changes to a rule of procedure made necesshysary by the current wave of mortgage foreclosure litigation See In re Amendments to Rules of Civil Procedure 44 So3d 555 (Fla2010) In approving one amendment the court pointedly explained

[R]ule 111O(b) is amended to require verificashytion of mortgage foreclosure complaints in-

I copy 2012 Thomson Reuters No Claim to Orig US Gov Works

I I

I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

I I

Page 10

57 So3d 95036 Fla L Weekly 0646

END OF DOCUMENT

copy 2012 Thomson Reuters No Claim to Orig US Gov Works

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IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

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DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

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CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

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CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

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I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

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CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

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CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

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CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

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CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

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CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

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CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

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CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

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CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 11: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I 57 So 3d 95036 Fla L Weekly D646

I (Cite as 57 So3d 950)

I volving residential real property The primary purposes of this amendment are (1) to provide inshycentive for the plaintiff to appropriately investigshyate and verify its ownership of the note or right to enforce the note and ensure that the allegations

I in the complaint are accurate (2) to conserve jushy

I dicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations (3) to prevent the wastshying of judicial resources and harm to defendants

I resulting from suits brought by plaintiffs not enshytitled to enforce the note and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations [es]

I 44 So3d at 556 I think this rule change adds

significant authority for the court system to take apshy

I propriate action when there has been as here a colshyorable showing of false or fraudulent evidence We read this rule change as an important refutation of BNY Mellons lack of jurisdiction argument to avoid dealing with the issue founded on inapt proshycedural arcana

I Decision-making in our courts depends on

I genuine reliable evidence The system cannot tolshyerate even an attempted use of fraudulent docushyments and false evidence in our courts The judicial branch long ago recognized its responsibility to deal with and punish the attempted use of false and fraudulent evidence When such an attempt has

I been colorably raised by a party courts must be most vigilant to address the issue and pursue it to a resolution

I I would hold that the trial judge had the jurisshy

I diction and authority to consider the motion under rule 1540(b) on its merits 960 and-should the court find that a party filed a false and fraudulent

I document in support of its claim-to take approprishyate action including (without limitation) the strikshying of a voluntary dismissal filed in aid of such conduct

I FlaApp 4 Dist2011 Pino v Bank of New York Mellon

I I

Page 10

57 So3d 95036 Fla L Weekly 0646

END OF DOCUMENT

copy 2012 Thomson Reuters No Claim to Orig US Gov Works

I I

- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

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DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

I I

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)

CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

I I

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CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

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I I

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CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

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CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

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CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

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I I

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CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 12: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

- ---- --~

I --- - )

I I

IN THE cmCUIT COURT FOR TIlE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA

I mE BANK OF NEW YORK MELLON FIKlA mE BANK OF NEW YORK AS

I TRUS1EE FOR TIlE CERTIFICATEHOLDERS CWALT WC ALlERNATIVE LOAN TRUST 2006-0C8

I MORTGAGEPASSTHROUGH CERTIFICATES SERIES 2006-0C8

Plaintiff

I vs

ROMAN PINO UNKNOWN SPOUSE OF

I ROMAN PINO IF ANY ANY AND ALL

I UNKNOWN PARTIES CLAIMING BY THROUGH UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALNE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN

I INTEREST AS SPOUSES HEIRS

I DEVISEES GRANTEES OR OTHER CLAIMANTS MIL LAKE HOMEOWNERS ASSOCIATION INC MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

I Defendants

------------------------~I

GENERAL JURISDICTION DMSION

CASE NO 502008 CA 031691XXXX MB

Division A W

Co) -~ l=

DEFENDANT ROMAN PINOS RULE 1540(b)

MOTION TO STRIKE THE NOTICE OF VOLUNTARY DISMISSAL AND MOTION

FOR DISMISSAL WITH PREJUDICE FOR FRAUD

UPON THE COURT

Defendant ROMAN PINO moves to 1) strike the Notice of Voluntary Dismissal filed

I by Plaintiff and 2) dismiss this case with prejudice for fraud upon the Court and unclean hands

In support of these motions Defendant states as follows

I I Misconduct of an adverse party is an exception to the right ofvoluntary dismissal

Defendant moves to strike the notice of dismissal on the grounds of

I fraudmisrepresentation or other misconduct of an adverse party Rule 1540(b)(3)

I ICE LEOAL PA 1975 SANSSUIlYS WAYSUITE 104 WESTPALMBEACII FL33411middotTELEPHoNE(561)793middotS65Bmiddot FACSIMILE (166)507-9888

I I

I bull

I I I I I I I I I I I I I I I I

)

CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

I I

r)I I

CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 13: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I bull

I I I I I I I I I I I I I I I I

)

CASE NO 502008 CA 031691xXxx MB

F1aRCivP See Select Builders ofFlorida Inc v Wong 367 So2d 1089 1091 (Fla 3d DCA

1979) ([W]e find the court to be correct in striking the voluntary dismissal and reinstating the

matter to prevent a fraud on the court ) Tobkin v State 777 So2d 1160 1164 (Fla 4th DCA

2001) (An exception to this absolute right [to voluntarily dismiss a case] arises where the party

taking the voluntary dismissal perpetrates a fraud on the court

IT The Misconduct or the Adverse Party

In support of his Motion Defendant adopts the arguments and supporting fact

references in the following filings

1 Defendant Roman Pinos Motion To Dismiss Amended Complaint Motion

To Strike And In The Alternative Motion For Summary Judgment dated

February 23 2009 Section LB The Assignment appears to be fraudulently

backdated

2 Defendant Roman Pinos Amendment to Motion for Attorneys Fees and

Costs dated May 5 2009 section entitled Relevant History of the Case

p6

The nature of the misconduct is th

Plaintiff alleged in its Complaint that at the time the Complaint was filed it was the assignee of

a mortgage by virtue of an assignment to be recorded (Complaint 14) Defendant moved to

dismiss on the grounds inter alia that Mortgage Electronic Registration Systems Inc (MERS)

was clearly the mortgagee on the mortgage attached to the Complaint and that Plaintiff had not

attached any assignment ofthat mortgage

After Defendant propounded discovery and obtained an order compelling a response to

the discovery Plaintiff amended its Complaint to include an assignment of mortgage from

MERS executed by an employee of Plaintiffs counsel Cheryl Samons in her purported role as

2 ICE LEoAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEAcH FL33411 bull TELEPHoNE(561)793-5658 FACSIMJ1Z(866) 507-9888

I I

r)I I

CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 14: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

r)I I

CASE NO 50 2008 CA 03 1691XXXX MB

I I Assistantmiddot Secretary of MERS The date this MERS assignment was purportedly executed

(September 19 2008) was conveniently just before the case was filed (October 9 2008)

The assignment however contained a nearly imperceptible inconsistency that suggested

I that it had not been executed on the indicated date but long after the case was filed That

inconsistency was the fact that the assignment was witnessed by Michele Grant - a legal

I I assistant in Plaintiff counsels litigation department (itself but a fraction of the 900 person finnl)

Because Ms Grants department would not be involved with the case until after it was contested

I and because the county records revealed that she had witnessed very few of her finns

assignments it would have been a remarkable coincidence had she happened to witness an

assignment for a case that would later become contested

I Ai a result defense counsel investigated hundreds ofassignments executed by employees

ofPlaintiff counselsfirm Among those executed by Ms Samons Defendant located only one

I I other assignment witnessed and notarized by Litigation Department employees Michele Grant

and Valerie Nemes respectively That assignment was purportedly executed by Ms Samons on

June 192007 - three days before the related foreclosure case was filed2 The notarys stamp

I however indicated that Ms Nemess commission would expire on August 192012 Because

notary commissions are issued for periods of four years the stamp had to have been issued no

I I earlier than August 20 20083

- fourteen months after the date she allegedly notarized the

assignment

I I Deposition of Cheryl S~ons was takenin the case ofDeutsche Bank National Trust Company v Pierre Case No 50 2008 CA 028558XXXX MB (Palm Beach County)(Exhibit A) p 6

I 2 Wells Fargo Bank v Acosta Case No 502007CA010018XXXXMB Filing date June 22 2007

3 Florida Departmerit of State records confinned that Ms Nemess commission was in fact issued August 20 2008

I 3 ICE LEGAL PA

1975 SANSBURYS WAYSlRTE 104 wESrPALM BEACH FL334ll o TaEPHONE(S61)793-56S8 0 FACSIMIU (866) 507-9888

I I

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 15: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I)

I CASE NO 50 2008 CA 031691XXXX MB

I The only logical conclusion is that all those at Plaintiff counsels firm who participated in

I the execution the witnessing and the notarization of the assignment ofmiddot mortgage in this

Unrelated case did so fraudulently and with the intent ofcommitting fraud on the court Coupled

I with other suspicious notarizations tending to show a pattern of fraudulent backdating at Plaintiff

counsels finn4 there were sufficient grounds for believing the mortgage assignment in the

I instant case was similarly backdated As a result Defense counselmiddot served a motion for sanctions

I and set the depositions of various notaries and witnesses at Plaintiff counsels firm On the eve

of those depositions Plaintifffiled a voluntary dismissal bfthe action

I m H the Assignment Was Fraudulently Backdated Plaintiff has Committed Fraud on the Court and Cannot Proceed in Equity with Unclean Hands

I All the misconduct described above was aimed at concealing the fact that Plaintiff was

not the mortgagee at the time that it filed the Complaint By fraudulently backdating the

I Assignment in this case Plaintiff would avoid dismissal under Jeff-Ray Corp v Jacobson 566

So2d 885 (Fla 4th DCA 1990) This misrepresentation regarding a key element of a document

I central to Plaintiffs claim constitutes fraud on the court It not only provides a separate ground

for Striking the Notice of Voluntary Dismissal under Rule 1540(b) but justifies dismissal of the

I case with prejudice as a sanction

I 4 Michelle Camacho purportedly notarized a Samons assignment of mortgage on November I 2007 and another on December 14 2007 even though her commission did not issue until months later on March 25 2008 Sabrina Romero purportedly notarized a Samons assignment

I ofmortgage on September 20 2007 even though she did not become a notary until November of

I that year Shannon Smith notarized a Samons assignment of mortgage on September 26 2008 but swore that Ms Samons had executed the document before her nearly a year earlier (October 52007) at a time before she even became a notary Bricka Iglesias witnessed and notarized an assignment on February 17 2007 - over 14 months before her commission was issued Ms Iglesias also notarized assignments on November 262007 and December 21 2007 - bQt before her commission was issued See Defendant KS Schannans Memorandum [n Opposition To

I Plaintiffs Motion For Leave To File Second Amended Complaint To Foreclose Mortgage dated February 18 2009 in the case of The Bank ofNew York v Scharman Case No 50 2008 CA 01 6521XXXX MB (paImBeach County) (Docket No 33) and attached exhibits

I 4 ICE LEoAL PA

1975 SANSBLRYS WAY SUITE 104 WEST PALM BEAOI fL33411 bull TaEPHONE (561)793-56S8 FACSIMILE (866) 507-9888

I I

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 16: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I ~)

I CASE NO 50 2008 CA 031691XXXX MB

I Plaintiffs misconduct regarding one of the very instruments upon which its claim is

I based in this case constitutes unclean hands and thus bars its equitable claim of foreclosure See

I

Rolex Watch USA Inc 11 JBJ Distributors Inc (5th Cir 2003) (unclean hands arising from

I flagrant discovery abuse would bar laches defense) Limner 11 Country Pines Condo Assn Inc

709 So 2d 154 (Fla 4th DCA 1998)(confuming that the unclean hands doctrine applies to the

equitable remedy Of foreclosure)

I IV Additional Facts Upon Which Defendant Will Rely At an Evidentiary Hearing to Determine Fraud and Misconduct in this Case

I A Plaintiffs vOluntary dismissal of the The Bank oNew York v~ Scharnum case

I In addition to voluntarily dismissing this case Plaintiff simUltaneously dismissed another

case in which the Defendant claimed that the mortgage assignment had been backdated The

Bank of New York 11 Scharman Case No 50 2008 CA 016521XXXX MB (palm Beach

I County)s

I B Deposition of Cheryl Samons taken in the Deutsche Bank National Trust

Company v Pierre

The deposition of Cheryl Samons was taken in the case of Deutsche Bank National Trust

I Company v Pierre Case No 50 2008 CA 028558XXXX MB (palm Beach County) regarding

I

inter alia her role as a MERS officer in executing MERS assignments of mortgage as well as

I the apparent backdating of those assignments 6 During the deposition Ms Samons counsel

stipulated that various assignments of mortgage executed by Ms Samons and witnessed and

I notarized at the offices of Plaintiffs counsel were allegedly notarized more than four years

before the expiration of the notaries commissions as shown on the notary stamp on the

I 5 Defendant hereby adopts all argwnents regarding assignment backdating in Defendants Memorandum in Opposition to Plaintiffs Motion for Leave to File Second Amended Complaint to Foreclose Mortgage dated February 18 2009

6 Attached as Exhibit A (Samons Depo)

I 5 1Cl Li0AL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411- TELEPHONE (561)793-5658middot FACSIMILE (866) 507-9888

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 17: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I

CASE NO 50 2008 CA 031691XXXX MB

I documents7 Since the stamps are issued anew at the beginninamp of each four-year commission

I period it would have been impossible for them to have notarized documents more than four

years before the expiration date - the stamps would not yet exist Accordingly the only logical

I I conclusion is that the assignments were falsely backdated

Additionallymiddot at this deposition Ms Samons declared that she was a signing officer of

I MERS at the time of the deposition which was taken May 202009 However in a deposition

taken in another case she testified under oath that her authority to execute assignments on behalf

ofMERS had been revoked approximately five days earlier on May 15 20098

I c Plaintiffs filing ofa new action with a new assignment of mortgage

I

Plaintiff has re-filed its case against Defendant seeking to enforce the same promissory

I note and the same mortgage lien9 Its claim to ownership however has changed in onemiddot

significant respect - it now claim ownership through an entirely different assignment of

I mortgage Without explanation or even mention the fraudulent Samons assignment of

mortgage isgone In its place is a new Assignment of Mortgage from MERS dated July 14

2009 This time the MERS Vice President was not an employee of Plaintiff counsels finn

I but rather an employee of the servicer Countrywide Financial COIporation That employee

Melissa Viveros has already held herself out as a Vice President of The Bank of New York

I Mellon10

I I

7 Samons Depo pp 98-105

8 Deposition of Cheryl Samons taken in the case of Deutsche Bank National Trust Company v Dixon CASE NO 16-2007-CA-008611-XXXX-MA (Duval County) June 3 2009 (attached as Exhibit B)

I 9 The Bank OfNew York Mellon v Pino Case No S02009CA027400XXXXMB (palm Beach County) filed August 132009 (Exhibit C)

10 AnsWers to Defendants Attorneys Fees Interrogatories dated July 212009

I 6 ICELEoAL PA

1975 SANsBURYS WAY SUITE J04 WEST PALM BEACH FL 33411 bull TELEPHONpoundS61)793-56S8 bull FACSIMlLB (866) S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 18: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I

CASE NO 502008 CA 031691XXXX MB

I The new assignment is not labeled as a colTective assignment Nor does Plaintiff

I explain how MERS could assign its rights to a mortgage after it had already assigned its rights to

Plaintiff in a recorded as~gnment executed ten months earlier In reality Plaintiff simply seeks

I I to distance itself from the original assignment a tacit admission that it is tainted with deceit

But Plaintiffs cavalier disregard for its own misconduct should not be tolerated by the

I Court The voluntary dismissal coupled with the filing of a second action with a new

cleansed (but still defective) assignment of mortgage is an improper attempt to expunge the

Plaintiffs wrongdoing from this litigation

I D Cheryl Samons execution of the assignment while posing as a MERS officer is an improper attempt to skirt the solemnity requirements of Florida Statntes

I I The Assigrunent of Mortgage is executed by Cheryl Samons as Assistant Secretary of

MERS The document was prepared by Plaintiffs counsel and signed by Ms Samons - the

I Operations Manager of Plaintiffs counsel Plaintiffs counsel therefore has created and

executed an instrument which not only purports to transfer a property interest to counsels own

client but which constitutes the evidentiary lynchpin of that clients case This is not only

I permitted but encouraged by MERS which in the name of efficiency created a corporate officer

self-appointment contrivance intended to avoid state laws that require actual management-level

I I officials ofthe Corporation to execute instruments transferring real property interests

MERS is an organization created by the mortgage banking industry which acts as

I nominee in the county land records for the lender and servicer In order to facilitate transfers of

the mortgages held in the name of MERS it authorizes its Member organizations (such as

lenders and servicers) to appoint their own employees to sign as officers of MERS This is

I accomplished through a generic MERS Corporate Resolution available on its website which

may be obtained by a Member companys employee by simply filling out the Request Fonn

I 7 ICE LEGAL PA

1975 SANSBURYS WAY SUm 104 WEST PALM BEACH FLJ3411 TELEPHONE(S61)79J-S6S8 FACSlMILI(86~ 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 19: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I

CASE NO 502008 CA 031691XXXX MB

I Therefore individuals signing as vice president or assistant seCretary of MERS are

I not as would be supposed from reading these official-sounding titles management-level officers

of MERS Indeed they are not even employees of MERS Because they need only be

I I employees of the Member company these MERS vice presidents are not necessarily

management-level officers ofany organization

I Instead MERS has adopted a system calculated to impart an aura of corporate authority

to the transfer of real property interests so as to give the appearance of complying with the

soleIIinity requirements of sectsect 69201 and 68901 Florida Statute and similar laws of other states

I It is doubtful that when the Florida legislature required corporate conveyances be executed by

I

its president or any vice-president or chief executive officer it contemplated the use of

I signatures by non-management-Ievel employees much less employees of a completely different

entity There can be no point to this masquerade other than a cynical attempt to meet the letter of

I the statutes without regard to their spirit

The impersonation of a corporate officer on a legal instrument in order to pass judicial

muster is disingenuous enough It is even more abhorrent when practiced by employees of

I attorneys - officers of the court who are duty bound to protect the integrity of the judicial

system Because MERS is a nominee (ie agent) of the Plaintiff its misdeeds and those of its

I counsel should be attributed to Plaintiff

I E Plaintiff counsels use of a deceptive loan ledger as an attachment to the Complaint in lieu ofa copy of the note

Defendant moved to strike Exhibit B from the original Complaint under Rule 1140(f)

I ofthe Florida Rules ofCivil Procedure on the grounds that it was simply a self-serving document

I I 8

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL33411middotTELEPHONE(S61)793-S6SBmiddot FACSIMILE (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 20: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I

CASE NO 502008 CA 031691XXXX MB

I that was not a contract or note upon which the action was brought I I A3 such inclusion of

I Exhibit B violated Rule 1130(a) FlaRCivP which provides that No papers shall be

unnecessarily annexed as exhibits

I More importantly Defendant moved to strike the Exhibit on the grounds that it was not

what it purported to be The document was entitled Countrywide Home Loans Inc along with

I I

the address of this entity in the header making it appear as if the information on the document

was printed on officia1letterhead of the company A review of other complaints filed by the

Plaintifrs law finn however reveals that not only is this kind of attachment commonly added

I to Plaintiff counsels complaints but that each attachment is remaricaQly similar no matter which

plaintiffor servicer was purportedly providing the ledger

I Attached are the loan ledgers provided by Plaintiffs counsel in ten different cases

I involving different plaintiffs and different servicers

I MN3

I I I

AmTrust Bank v Whatley

I Countrywide Financial Mellon v Pino Corporation in Simi

CA

I ~ ( bull I~ ~ bull-

CitiMortgage Inc 502008CA037397 v Pryce XXXXMB Indymac Federal S02008CA035357 Bank FSB v XXXX MB Litman

Ledger on shnulatedletterb~d ~ I ()f

LP Mendota Heights LP in Houston TX

CitiMorgageInc in Frederick MD

Litton Loan Servicing

IndyMac Federal Bank IndyMac Federal Bank in Pasadena CA in Pasadena CA

502008CA033946 AmTrust Bank in AmTrust Bank FSB in XXXX MB Cleveland OH Cleveland OH

~~~~~----~~~~~~~~~~~~----~ 502008CA029968 GMAC Mortgage XXXXMB LLC

502008CA031691 Countrywide Home XXXXMB Loans Inc in Plano

IX

I 11 Defend8nt Roman Pinos Motion to Dismiss Complaint Motion to Strike and in the Alternative Motion for Swnmary Judgment dated November 10 2008 pp 6-8

I 9 ICE LEGAL PA

1975 SANSBURYS WAY SUITE 104 WEST PALM BEACH FL334ll o TELEPHOIE(S61)793-S658 0 FACSIMILE(866)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 21: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I

CASE NO 502008 CA 031691XXXX MB

I I I COIilpany v Minneapolis MN Dallas IX

DeLeon Aurora Loan Aurora Loan Services

I Aurora Loan rU

Services LLC v 502008CA02S409

LLC in Englewood LLC in Scottsbluff NE Exavier

XXXXMB CO

Nationstar Nationstar Mortgage Mortgage Mortgage LLC v

502008CA019219 LLCin

I LLCin

Roselli XXXXMB

502008CA024266 XXXXMB

I

The York Mellon Trust

HomeComings Financial LLC in Financial LLC in

1 ExhibitD

I 2 Exhibit E (a blank table entry means it is a non-MERS loan)

I 3 The address listed for Litton Loan Servicing LLP is actually the address of LPS

Default Title and Closing a third-party foreclosure services provider

I The striking resemblance of the letterhead of the nine different servicers as well as the

similarity of the ledger itself is evidence that they are not in fact being generated by the

servicers Instead it suggests that they are being created by the one entity common to all nine

I lawsuits - Plaintiffs counsel Most telling is the fact that the simulated letterhead of one of the

entities (Nationstar) contains a misspelling ofthe city in which they are located

I I There can be no innocent motive lurking behind the creation of documents that appear to

bear the imprimatur of the servicer If the intent was Ilerely to allege terms of the note such

allegations could simply have been included in the complaints without the use of a document

I masquerading as something it is not

I I 10

ICE LIlOAL PA 1975 SANSBURYSWAV SIl1Ti 104 WEST PALM BEACHFL334ll o TEiEPH0NE(S61)793-56S8 0 FACSlMILE(B66)S07-9888

I I

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 22: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I

CASE NO 502008 CA 031691XXXXMB

I v Defendant Need Only Show a Colorable Entitlement to ReHef to Trigger the Requirement for an Evidentiary Hearing

I I Summarily denying a Rule 1540(b) motion without an evidentiary hearing (and an

opporbinity for discovery prior to the hearing) is an abuse of discretion unless the motion fails to

allege a colorable entitlement to relief Schleger v Siebelsky 957 So 2d 71 (Fla 4th DCA

I 2007) Dynasty Exp Corp Y Weiss 675 So2d 235239 (Fla 4th DCAI996) Stella Y Stellamiddot

418 So2d 1029 (Fla 4th DCA 1982) Robinson Y Weiland 936 So2d 777 782 (Fla 5th DCA

I 2006) (evidentiary hearing requirement applies when fraud is asserted as a grounds for relief

under 1540) Southern Bell Tel amp Tel Co Y Welden 483 So2d 487489 (Fla 1st DCA 1986)

I I (holding that the trial court erred because where the moving partys allegations raise a colorable

entitlement to rule 154O(b)(3) relief a fonnal evidentiary hearing on the motion as well as

pennissible discovery prior to the bearing is required )

I Here Defendant has alleged more than a mere colorable entitlement to relief The

allegations are explicit and wel1-documented that Plaintiffs counsel likely backdated the

I assignment of mortgage When faced with the probability that the fraud would be exposed

Plaintiff took a voluntary dismissal This coupled with the other misconduct listed above far

I I surpasses the minimal threshold that would trigger the requirement ofan evidentiary hearing

Plaintiffs right of voluntary dismissal was never intended as an escape hatch to avoid the

consequences of the misconduct and fraud of its agents A plaintiff cannot through its attomeys

I mislead the Court and when its transgressions are discovered simply press the reset button

and begin the litigation again as if it bad done nothing wrong The voluntary dismissal was used

I here for a fraudulent purpose - to allow Plaintiff to deceive the court with impunity A court in

equity therefore has the right if not the responsibility to reopen the case in the interest of

I I 11

ICE LEOALPA 1975 SANSBURYS WAYStJrre 104 WEST PALM BEACH FL 334 1 1 o TELEPHaE (S6l)793-S658 bull FACSIMILpound (866) 507-9888

I I

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 23: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I

CASE NO 502008 CA 031691XXXX MB

I protecting the integrity of the judicial system See Select Builders ofFlorida Inc V Wong 367

I So2d at 1091

WHEREFORE Defendant requests that the Court hold an evidentiary hearing on

I Defendants Motion to Strike Plaintiffs Notice of Dismissal Upon the production middotof evidence

as outlined in this motion Defendant requests that the Notice of Dismissal be striken the case

I reopened and then dismissed again this time with prejudice as a sanction for fraud upon the

I Court and on the grounds that Plaintifrs unclean hands precludes the equitable remedy of

foreclosure

I I Dated August 20 2009

ICE LEGAL PA Counsel for Defendant

I 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By =

moMAS E ICE Florida Bar No 0521655

I I I I I I 12

ICE LEGAL PA 1975 SANSBURYS WAY SUITE 104 WESTPALNBEAOI FL33411 -TELEPHONE (561)793-S6SB - FACsJMILE (866) 507-9B88

I I

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I

Page 24: I -I - Florida State Supreme · PDF filetransferred to BNY Mellon in the manner provided ... rights in the cause, ... ''The plaintiff had obtained the . I . I . I . I . I . Rule."

I I

CASE NO 50 2008 CA 031691XXXX MB

I CERTIFICATE OF SERVICE

I I HEREBY cERTIFY that a true and correct copy of the foregoing was served by mail

this August 20 2009 to all parties on the attached service list

I I ICE LEGAL PA

Counsel for Defendant 1975 Sansburys Way Suite 104 West Palm Beach FL 33411 Telephone (561) 793-5658 Facsimile (866) 507-9888

I By _

I ~

THOMAS E ICE Florida Bar No 0521655middot

I I SERVICE LIST

I Donna Evertz Esq LAW OFFICES OF DAVID J STERN PA 900 South Pine Island Road Suite 400 Plantation FL 33324-3920

I (954) 233-8000 Plaintiffs counsel

I MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC

I clo Electronic Data Systems Corporation 3300 SW 34th Ave bull Suite 101 Ocala FL 33474

I I I 13

Jeffrey Tew Esq TEW CARDENAS LLP 1441 Brickell Ave 15th Floor Miami FL 33131 Co-counselfor Plaintiff

ICE LEoAL PA 1975 SANSBURYS WAY SUItE 104 WEST PALM BEACH FL33411 TELEPHONE(S61)793-S6SB FACSJMILE(B66)S07-9BBB

I I


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