Lazardi Amended Initial Brief
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Transcript of Lazardi Amended Initial Brief
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IN THE COURT OF APPEALS OF THE STATE OF FLORIDA,
FOURTH DISTRICT
OSBELIA LAZARDI and
ANDRES LAZARDI, Case No. 4D11-3996
Defendants/Appellants, LT Case No. 10-CA-24433(11)
v.
WACHOVIA MORTGAGE CORPORATION,
Plaintiff/Appellee.
_____________________________________/
AMENDED INITIAL BRIEF
Submitted by: Kenneth Eric Trent, Esq.
Attorney for Appellants831 East Oakland Park Blvd.
Fort Lauderdale, FL 33334
(954)567-5877; (954)567-5872 [fax]
Fla. Bar No. 693601
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Table of Contents
Preface..............................................................................................................2
Introduction......................................................................................................3
Table of Citations............................................................................................3-6
Statement of the Case and Facts......................................................................6-9
Summary of Argument.....................................................................................9-10
Argument.........................................................................................................10-26
Conclusion........................................................................................................27
Certificate of Service........................................................................................28
Preface
The parties to this appeal are, first, the Appellants, Osbelia Lazardi and Andres
Lazardi. They are husband and wife and shall hereinafter be referred to collectively
as Defendants. Defendant Osbelia Lazardi is hereinafter referred to as Osbelia.
The second party is the Appellee, Wachovia Mortgage Corporation,
(Plaintiff). It obtained a summary final judgment of foreclosure against the
Defendants and their homestead real property on September 28, 2011. This Final
Judgment is the subject of this appeal.
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Introduction
This case presents multiple issues ofgreat public importance. Defendants
and their undersigned attorney believe, and respectfully submit, that this Courts
decisionmaking process should take into consideration the extraordinary times in
which we as Americans find ourselves. The questions raised in this case, and in the
numerous authorities cited in this Brief, will have a great impact on the parties before
the courts both now and for many years into the uncertain future before us. While in
usual times, the decisions herein attacked and critiqued, including the one below, may
be in certain respects defensible, in light of current affairs they are simply unjust. The
matters presented implicate heavily the most fundamental of all judicial precepts:
jurisdiction.
It is the abiding hope of Defendants and their advocate that this Court will have
the wisdom to reverse the decision of the court below. While this hope is of course
motivated in good part by their own interests, Defendants also urge reversal for the
collective Good of the People of the United States ofAmerica.
Luckily the precedents are with us.
Table of Citations
Fla. R. Civ. P. 1.110.......................................................................................23
Fla. R. Civ. P. 1.140(b)..................................................................................24
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Fla. R. Civ. P. 1.510.........................................................................................15, 22, 26
Fla. R. Civ. P. 1.540(b)(3)..............................................................................21
Fla. R. Civ. P. 1.540(b)(4)..............................................................................22
84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994).................24
BAC Funding Consortium Inc ISAOA/ATIMA v. Jean Jacques,
28 So. 3d 936 (Fla. 2d DCA 2010)................................................................17
Beaulieu v. JP Morgan Chase Bank, N.A.,
case no. 4D10-5288 (Fla. 4 DCA, Jan. 11, 2012)........................................21, 22, 24th
Beaumont v. Bank of New York Mellon, case no. 5D10-3471
(Fla. 5 DCA, February 17, 2012)..................................................................25th
Becerra and Horizon Corp. v. Equity Imports, Inc.,
551 So. 2d 486 (Fla. 3d DCA 1989) ..............................................................23
Carapezza v. Pate, 143 So. 2d 346 (Fla. 3d DCA 1962)...............................16
Dept of Revenue v. Daystar Farms, Inc.,
803 So. 2d 892, 896 (Fla. 5 DCA 2002)......................................................25th
Dept of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994)...........................21
Dreggors v. Wausau Ins. Co., 995 So. 2d 547(Fla. 5 DCA 2008)..............15th
Edwards v. Simon, 961 So. 2d 973 (Fla. 4 DCA 2007)...............................15th
Garcia v. Stewart, 906 So. 2d 1117 (Fla. 4 DCA 2005)..............................21th
Gee v. U.S Bank Natl Assn as Trustee, case no. 5D10-1687
(Fla. 5 DCA, September 30, 2011)...............................................................15, 16, 18th
Global Aerospace, Inc. v. Platinum Jet Management, LLC,
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2011 WL 248543 (S.D. Fla. 2011).....................................................................25
Goncharuk v. HSBC Mortgage Services, Inc.,
62 So. 3d 680 (Fla. 2d DCA 2011)....................................................................17
Henderson v. Reyes, 702 So. 2d 616 (Fla. 3d DCA 1997).................................20
Hernandez v. Coopervision, Inc.,
661 So. 2d 33 (Fla. 2d DCA 1995)..................................................................... 24
Herskowitz v. Reid, 187 Fed. Appx 911 (11 Cir. 2006)...................................25th
Howell v. Ed Bebb, Inc., 35 So. 3d 167 (Fla. 2d DCA 2010).............................17
In re: Harrold, 296 B.R. 868 (U.S. Bankr. Ct., M.D. Fla. 2003).........................24
Klos v. Paulson, 2009 WL 205622 (11 Cir. 2009).............................................24th
Lizio v. McCullom, 36 So. 3d 927 (Fla. 4 DCA 2010).......................................15th
Lovett v. Lovett, 112 So. 768 (Fla. 1927).............................................................21
Madison v. Haynes, 220 So. 2d 44 (Fla. 4 DCA 1969) ....................................17th
McLean v. JP Morgan Chase Bank Natl Assn,
case no. 4D10-3429 (Fla. 4 DCA Dec. 14, 2011)..............................................15, 20th
Miles v. Robinson, 803 So. 2d 864 (Fla. 4 DCA 2002).....................................17th
Mishoe v. Mishoe, 591 So. 2d 1100, 1101 (Fla. 1 DCA 1992)..........................25st
Moynet v. Courtois, 8 So. 3d 377 (Fla. 3d DCA 2009) ......................................23
Phadael v. Deutsche Bank Trust Company Americas
as Trustee for RALI 2007QS9, case no. 4D11-905
(Fla. 4 DCA, February 8, 2011)......................................................................21, 22, 24th
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Philogene v. ABN AMRO Mortgage Group, Inc.,
948 So. 2d 45 (Fla. 4 DCA 2006)....................................................................16th
Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932
(Fla. 4 DCA 2010)...........................................................................................16
th
Sandoro v. HSBC Bank, USA Natl Assn,
55 So. 3d 730 (Fla. 2d DCA 2011).....................................................................17
Southeast Land Developers, Inc. v. All Florida
Site and Utilities, Inc.28 So. 3d 166, 168 (Fla. 1 DCA 2010).......................23-24st
Stalley v. Orlando Regl Healthcare Systems, Inc.,
524 F.3d 1229 (11 Cir. 2008)..........................................................................25th
State ex rel. BF Goodrich Co. v. Trammell,
192 So. 175 (Fla. 1939).....................................................................................24
State of Florida, Dept of Health and Rehabilitative Services
v. Schreiber, 561 So. 2d 1236, 1241 (Fla. 4 DCA 1990).................................24th
Taylor v. Siebert, 615 So. 2d 800 (Fla. 1 DCA 1993)......................................24st
The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006)..............................15
Venture Holdings & Acquisitions Group, LLC v.
AIM Funding Group, LLC, case no.s 4D10-1848,
4D10-832, 4D10-1159 (Fla. 4 DCA, Nov. 23, 2011) .....................................23, 27th
Verizzo v. Bank of N.Y., 28 So. 3d 976 (Fla 2d DCA 2010).............................15, 16
Volusia County. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126 (Fla. 2000).................................................................................15
Statement of the Case and Facts
On or about July 31, 2007, Defendant Osbelia Lazardi executed an Initial
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Interest Adjustable Rate Note, (Rec., p. 4-7), and both she and her husband, Andres
Lazardi, executed an accompanying Mortgage. (7-31). The Lender named in these
loan documents was and is AMNET MORTGAGE, INC., DBA AMERICAN
MORTGAGE NETWORK OF FLORIDA. (4, 8). Copies of these loan documents,
which did not include any endorsements or assignments, were attached to the original
Complaint which Plaintiff filed on June 10, 2010. (1-31). This Complaint was
ostensibly verified by the filing of a separate Verification,signed by Jose Pinto as
Vice President of an undefined entity. (32). In paragraph 4 of the Complaint, Plaintiff
alleged the following in an effort to establish standing: Mortgagee shown on the
Mortgage attached as an exhibit is the original Mortgagee. Plaintiff is now entitled to
enforce Mortgage and Mortgage Note pursuant to Florida Statutes 673.3011. (2).
On October 28, 2010, Plaintiff filed its Amended Complaint, (35-70), which
added a count to re-establish lost note. (37-38). The Amended Complaint was not
verified. Also on October 28, 2010, Plaintiff filed a Notice of Filing and therein
made reference to having filed the attached Affidavit as to Lost or Misplaced
Original Note, although the attachments were incomplete. (71-73;see also Appendix
1). The Notice of Filing filing appears in the Index as NOTICE OF FILING
AFFIDAVIT/ COPY OF NOTE. The Notice of Filing states that an affidavit of lost
note, a copy of the original Note, and a service list are attached. As to the original
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Notice of Filing in the Record (71-73) no Note or service list are included. The copy
in Defendants possession consists of only the Notice and the service list, and omits the
affidavit. (Appendix 1).
On December 3, 2010 a clerks default was entered against the Defendants. (86).
On May 10, 2011, Plaintiff filed an Affidavit of Amounts Due and Owing (87-105) and
on June 1, 2011 it filed its motion for summary judgment (106-131), wherein it made
no reference whatsoever to the default. Id.
On September 7, 2011, Defendant Osbelia Lazardi,pro se, filed her Confirmed
Answer, Affirmative Defenses, Motion to Dismiss Foreclosure Action With Prejudice
Count I, II [sic] and Demand for Jury Trial, (134-217), which shall hereinafter be
referred to as the Answer. On this same date, September 7 , Osbelia filed herth
Motion to Strike Affidavit of Amounts Due and Owing (222-230), her Motion for
Production, (244-246), and her Motion to Dismiss Foreclosure Action With Prejudice
. . . , (233-243) (the Motion to Dismiss.)
On September 20, 2011, Plaintiff filed its Motion to Strike Osbelias Affirmative
Defenses. (247-249). Although it is absent from the record index, on September 21,
2011, Plaintiff filed and served a notice setting the Motion to Dismiss for hearing to
occur on November 2, 2011. (Appendix 2). On September 28, 2011, Plaintiff filed its
Memorandum of Law in Support of Motion for Final Summary Judgment (250-256).
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Final Summary Judgment of Mortgage Foreclosure, granting foreclosure and re-
establishing the lost Note, was entered on that same date (260-265), and the property
was sold to Plaintiff at foreclosure sale occurring on November 2, 2011.
There is no sign in the record that the following motions were ever heard or ruled
upon by the trial court: (1) the Motion to Dismiss; (2) the Motion to Strike Affidavit
of Amounts Due and Owing; and (3) Plaintiffs Motion to Strike Affirmative Defenses.
There is also no evidence in the record that Plaintiff ever responded to the (incorrectly
named) request for production.
Summary of Argument
The trial court erred in granting summary judgment, in that Plaintiff failed to
establish that it had standing to foreclose, either as an owner or holder of the Note. The
Amended Complaint failed to state a claim. Plaintiff was not the original payee or lender
named in the Note. The record reveals no endorsement of the Note, no assignment of
the Mortgage, and no affidavit of ownership. Because Plaintiff claimed that the Note was
lost, it could not possibly have held the Note at the time the Complaint was filed.
Because the Note was not properly re-established, the Final Judgment forecloses a
mortgage which has no debt associated with it. Foreclosing a mortgage without a
corresponding debt is clear error.
Summary judgment should not have been granted due to the fact that discovery
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was outstanding.
Plaintiff failed to meet its prima facie burden to demonstrate standing, and for this
reason summary judgment was not proper and the judgment which was entered was void
and subject to attack at any time. Under the circumstances, the fact that a default was
entered against Defendants does not preclude this Court from considering their
arguments on the merits, especially as to standing and related jurisdictional questions.
Not only should the Final Judgment be reversed, the case should be dismissed for
a total absence of jurisdiction or standing.
Argument
It is unquestionably the case based on a panoply of reports that in recent years,
from sea to shining sea, foreclosure plaintiffs have been filing false sworn documents by
the tens of thousands, primarily on the issue of standing. These documents purport to
establish that these foreclosure plaintiffs have an interest in, and therefore have a right
to enforce and foreclose, mortgages and notes originated by entities other than
themselves. Consider, for example, the written Statement of the Hon. Arthur M.
Schack, New York State Supreme Court[:] Failure to Recover: the State of Housing
Markets, Mortgage Servicing Practices, and Foreclosures[;] Hearing [of] March 19,
2012[;] The United States House of Representatives Committee on Oversight and
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Governmental Reform[,] :1
In 2007, before the recession, I observed the bursting of the housing bubble
and the growth in foreclosure filings. In Supreme Court, Kings County, we
went from about 3,000 to 3,500 foreclosure filings per year to more 7,000foreclosure filings per year.
New York is a judicial foreclosure state and the power to order a judgment
of foreclosure is vested in the New York State Supreme Court, which,
despite its lofty title, is the Court of general jurisdiction in this state and
equivalent to Superior Court or Circuit Court in other states. The Court of
Appeals is the highest court in New York. There are more than 300
Supreme Court Justices in New York State, allocated by population to each
county. Since Kings County has about 15% of the New York States
population, it has about 15% of the Supreme Court Justices.
My experience dealing with residential foreclosures has given me a unique
perspective on what is happening with the housing market. While I will not
discuss any specific cases, lenders or homeowners, I have observed many
foreclosure problems, including, but not limited to: shoddy paperwork by
lenders and/or mortgage servicers; determining the actual owners of
mortgages and notes and the disproportionate impact of foreclosures upon
minorities and neighborhoods that have predominant minority population.
As a judge I am neutral. My role is to apply the law equally to all parties,on a level playing field. For a lender to receive a judgment of foreclosure,
like any other type of judgment, due process of law must be followed.
When taking office, I took an oath to uphold the constitution, which, as we
know, states in the XIVth Amendment nor any State shall deprive any
person of... property, without due process of law nor deny to any person
within its jurisdiction the equal protection of the laws. The Honorable
John Leventhal of the New York Appellate Division, Second Department,
last June, in his decision for a unanimous court, in Bank of New York v
Available at1 http://stopforeclosurefraud.com/2012/03/19/
testimony-of-hon-arthur-m-schack-before-the-us-house-of-rep-committee-on-oversight-and-gove
rnment-reform/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Forecl
osureFraudByDinsfla+%28FORECLOSURE+FRAUD+|+by+DinSFLA%29&utm_content=Yah
oo!+Mail
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Silverberg, 86 AD3d 274, 283, holding that an assignee of a lender who
was never the actual holder or the assignee of the underlying note lacked
standing to commence a foreclosure action, stated that the law must not
must not yield to expediency and the convenience of lending
institutions. Proper procedures must be followed to ensure thereliability of the chain of ownership to secure the dependable transfer
of property, and the assure the enforcement of the rules that govern
real property.
For a Plaintiff to receive a judgment of foreclosure it must demonstrate
three things to the Court: (1) the existence of a mortgage and note; (2)
plaintiffs ownership of the mortgage and note; and (3) defendants default.
This might sound relatively simple, but in this age of mortgage
securitization and numerous assignments of mortgages and notes, it is not
easy in many cases to demonstrate plaintiffs ownership of the mortgage
and note. Further, the plaintiff must demonstrate standing, that it or a
predecessor in interest owned the mortgage and note when the foreclosure
case commenced.
Judges, with the proliferation of mortgage securitization and assignments
of mortgages and notes, are confronted in many instances to examine a
lengthy chain of title to determine how the purported plaintiffs secured
ownership of the mortgages and notes that they sue upon I have seen a
plethora of cases with: defective assignments of mortgages and notes byrobosigners. Robosigners are individuals who sign thousands of mortgage
documents and wear numerous corporate hats. Further, I continue to see
conflicts of interests, in which a robosigner might assign a mortgage and
note as an officer of assignee entity B. Additionally, I have observed:
defective notarials of assignments and affidavits; missing powers of
attorney or defective powers of attorney to mortgage servicers who submit
affidavits on behalf of alleged plaintiffs; retroactive assignments of
mortgages and notes to attempt to legitimatize foreclosures that are
commenced prior to the plaintiff owning a mortgage and note; and, thefailure to produce pooling and servicing agreements that detail the powers
allegedly given to mortgage servicers.
I have had foreclosure cases in which in I have held conferences with bank
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lawyers and defendants attempting to achieve a modification and
settlement. When a change in interests rates or mortgage length was
proposed, bank lawyers informed me that they had to check on the
modification terms with the investor, the actual owner of the mortgage
and note, which is part of a securitization. This piqued my curiosity and Iinquired who is the investor? Too many times I would receive the bank
lawyers puzzled response, I dont know.
Too many times this lack of knowledge of the actual ownership is caused
by Mortgage Electronic Registrations Systems, Inc. (MERS). Probably,
more than half of the mortgages in the country are recorded by MERS, as
the nominee of the lender. MERS in many cases assigned the mortgage and
note many times within the MERS system, but did not record the
assignments with the local recording authority. Thus, it cannot be
determined who owns the mortgage and note. Therefore, the MERS system
lends itself to cases of fraud with respect to home ownership, because, in
New York State, for mortgages and assignments to be enforceable they do
not have to be recorded. Plaintiffs in New York only have to prove that
they possessed the mortgage and note when the foreclosure action
commenced.
MERS, created in the early 1990's, has cost localities, usually counties
several billion dollars in unpaid recording fees. To paraphrase the late
Senator Everett Dirksen of Illinois, who allegedly said something to theeffect of a billion here, a billion there, and pretty soon youre talking about
real money, fifty dollars in recording fees here, fifty dollars in recording
fees there, and pretty soon youre talking about real money for counties and
localities.
[ . . . ]
Also, we have in New York State a logjam in moving forward foreclosures.
In October 2010, to address the abuses of robosigning, the New York court
system, by administrative order, required an affirmation in foreclosures by
plaintiffs counsel that counsel communicated with a named representativeof the plaintiff, who informed counsel that he or she personally reviewed
plaintiffs documents and records for factual accuracy and confirmed the
factual accuracy of the allegations set forth in the complaint, and any
supporting affidavits or affirmations, as well as the accuracy of the
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notarizations contained in the supporting documents. Then, plaintiffs
counsel, based upon counsels communication with plaintiffs
representative, must inspect the documents and affirm under the penalty of
perjury that all the papers filed with the Court contain no false statements
of fact or law.
In announcing this affirmation requirement, New Yorks Chief Judge
Jonathan Lippman, in his October 20, 2010 press release stated, we cannot
allow the courts in New York State to stand by idly and be party to what we
now know is a deeply flawed process, especially when that process involves
basic human needs- such as family home- during this period of economic
crisis.
[ . . . ]
(Emphases added).
In this Florida case, the Defendants suffered exactly what Judge Schack described:
a deeply flawed process. The Defendants Mortgage and Note name a non-party,
Amnet Mortgage, Inc. d/b/a American Mortgage Network of Florida, as the Lender. (37-
70). The Note contains no endorsement. The affidavit attached to the original Notice of
Filing, which was not served upon Defendants, attests to the fact that the Note has not
been satisfied, pledged, assigned or hypothecated. (71-73). There is no assignment of2
the Mortgage or of the Note in the record. Similarly, the record is devoid of any affidavit
attesting to Plaintiff owning or holding the loan. Plaintiff fell far short of satisfying the
On March 27, 2012, the undersigned obtained a copy of the version of the2
Notice of Filing, which includes an affidavit but no service list or Note, from the
clerk of the lower court.
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summary judgment standard.
To obtain summary judgment, the moving party must establish that there is no
material fact in dispute, and that it is entitled to judgment as a matter of law. Fla. R. Civ.
P. 1.510. When reviewing a final summary judgment, an appellate court must examine
the record in the light most favorable to the non-moving party. McLean v. JP Morgan
Chase Bank Natl Assn, case no. 4D10-3429 (Fla. 4 DCA, Dec. 14, 2011). Theth
standard of review is de novo. As stated in the case ofGee v. U.S. Bank Natl Assn as
Trustee, case no. 5D10-1687 (Fla. 5 DCA, September 30, 2011):th
This Court reviews an order granting summary judgment de novo. See The Fla.
Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006). Summary judgment is
appropriate only if there is no genuine issue of material fact and if the moving
party is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The court may consider
affidavits, answers to interrogatories, admissions, depositions, and other materials
as would be admissible in evidence on which the parties rely. Fla. R. Civ. P.
1.510[c]. But in doing so, the court must draw every possible inference in favorof the non-moving party. Dreggors v. Wausau Ins. Co., 995 So. 2d 547, 549 (Fla.
5 DCA 2008); Edwards v. Simon, 961 So. 2d 973, 974 (Fla. 4 DCA 2007).th th
To establish the right to foreclose, a plaintiff bears the burden of proving that it
either owns or holds the note and mortgage in question. In this instance, Plaintiff has
failed to clear this hurdle. The party seeking foreclosure must present evidence that it
owns and holds the note and mortgage in question in order to proceed with a foreclosure
action. Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4 DCA 2010) citing Verizzo v.th
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Bank of N.Y., 28 So. 3d 976 (Fla. 2d DCA 2010) and Philogene v. ABN AMRO
Mortgage Group, Inc., 948 So. 2d 45 (Fla. 4 DCA 2006). Where a defendant facingth
foreclosure denies that the plaintiff has an interest in the mortgage, ownership
bec[omes] an issue that . . . plaintiff[] [is] required to prove. Gee, supra, citingLizio,
supra, and Carapezza v. Pate, 143 So. 2d 346 (Fla. 3d DCA 1962).
If the note does not name the plaintiff as the payee, the note must bear an
endorsement in favor of the plaintiff or a blank endorsement. Gee, supra, citingRiggs
v. Aurora Loan Services, LLC, 36 So. 3d 932, 933 (Fla. 4 DCA 2010) (emphasis added).th
Alternatively, the plaintiff may submit evidence of an assignment from the payee to the
plaintiff or an affidavit of ownership to prove its status . . . . Gee, supra, citing, inter
alia, Verizzo v. Bank of N.Y., 28 So. 3d 976 (Fla. 2d DCA 2010).
As more specifically delineated above, Osbelia filed her Answer, containing
affirmative defenses, after the Plaintiff filed its Motion for Summary Judgment but
before the hearing thereupon. Disregarding, for the moment, the default, which will be
addressed in portions of this brief to follow, there are two different starting points for this
Courts inquiry into the propriety of the summary judgment. Regardless of whether this
Court believes the trial court should have considered the Answer in ruling on summary
judgment, the result is the same.
First, [I]f a plaintiff moves for summary judgment before the Defendant has filed
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an answer, the burden is upon the plaintiff to make it appear to a certainty that no
answer which the defendant might properly serve could present a genuine issue of fact.
Howell v. Ed Bebb, Inc., 35 So. 3d 167, 168 (Fla. 2d DCA 2010) citingBAC Funding
Consortium Inc ISAOA/ATIMA v. Jean Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010). As
stated in Goncharuk v. HSBC Mortgage Services, Inc., 62 So. 3d 680 (Fla. 2d DCA
2011):
As we explained in Sandoro [v. HSBC Bank, USA, Natl Assn, 55 So. 3d
730 (Fla. 2d DCA 2011)] and in several earlier cases, a plaintiff who moves
for summary judgment before the defendant files an answer has a difficult
burden.
When a plaintiff moves for summary judgment before the defendant
answers the complaint, the plaintiff must not only establish that no genuine
issue of material fact is present in the record as it stands, but also that the
defendant could not raise any genuine issues of material fact if the
defendant were permitted to answer the complaint. [ . . . ]
The plaintiff must essentially anticipate the content of the defendantsanswer and establish that the record would have no genuine issue of
material fact even if the answer were already on file.
Goncharuk, 62 So. 3d at 681-682 (citations omitted).
This is also the law in the Fourth District. See, e.g., Miles v. Robinson, 803 So.
2d 864 (Fla. 4 DCA 2002) wherein this Court citedMadison v. Haynes, 220 So. 2d 44th
(Fla. 4 DCA 1969) for the proposition that, When plaintiffs moved for summaryth
judgment before an answer was filed, they had the burden of conclusively establishing
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that no answer which the defendants might properly serve could present a genuine issue
of material fact. Miles, 803 So. 2d at 865.
It would be reasonable to conclude that, because the Answer was filed after the
motion for summary judgment, Plaintiff was required to meet this heavy burden. This is
because Plaintiffs motion unquestionably did not preclude the possibility that no possible
answer could raise an issue of material fact. Review of the Plaintiffs motion for
summary judgment reveals only generic allegations. The same is true for the materials
Plaintiff submitted in support. An undated Verification of Jose Pinto as Vice
President of one knows not what appears in the file, (32) and it does include a statement
that the Plaintiff is entitled to enforce the loan. This is the ultimate legal conclusion
which is the sole province of the court; it is not a factual averment based upon personal
knowledge which is properly included within an affidavit or similar document such as this
one. This statement of Pinto constitutes neither an endorsement nor an assignment as
required by Gee, supra, and the cases therein cited. Further, not the slightest capacity is
stated for Pinto, and therefore the statement lacks substance or foundation. The
Verification also conflicts with the exhibits to the Complaint, which: (1) causes the
Complaint to fail to state a cause of action; and, because the exhibits to the Complaint
demonstrate that Plaintiff is notentitled to enforce the loan, (2) creates an issue of fact
precluding summary judgment in favor of Plaintiff. This
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As and for an alternative means of applying the law to the facts, this Court could
reasonably conclude that the trial court was required to consider the Answer in
determining whether to grant summary judgment. Based upon the fact that the Answer
was filed well prior to the hearing on the motion for summary judgment, the
determination of whether issues of material fact exist could reasonably have been made
based upon her actual pleading, rather than the more ephemeral any possible answer.
In this instance, one would take a look at the admittedly verbose and at times difficult to
understand pleading and discover that it actually does make certain relevant and coherent
legal arguments, based upon articulated record facts, including but not limited to attacks
upon standing and the authenticity of the signatures contained in the documentation upon
which Plaintiff purportedly based its claim of entitlement to summary judgment.
One such supporting item filed by Plaintiff is the affidavit of amounts due and
owing. (Rec., p. 87-105). It contains no averment as to Plaintiff either holding or owning
the Note or Mortgage. The closest the affidavit comes is in paragraph 5, wherein the
affiant ambiguously avers, Plaintiff or its assigns, is owed the following sums of money
as of 7/12/2010 . . . . This was woefully inadequate to establish that Plaintiff was the
owner or holder of the Note and that it therefore had standing. Furthermore, Osbelia filed
a motion to strike this affidavit, (222-230) which was never ruled upon by the trial court.
It makes credible and documented assertions as to the lack of foundation and personal
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knowledge. The Motion to Strike emphasizes, inter alia the fact that the affiant, Donohue,
is a VP of Wells Fargo Bank as successor to Wells Fargo Home Mortgage, neither of
which are the Plaintiff.
These facts implicateMcLean v. JP Morgan Chase Bank Natl Assn, case no.
4D10-3429 (Fla. 4 DCA Dec. 14, 2011), wherein summary judgment for the foreclosureth
plaintiff was reversed because the assignment post-dated the filing of the action, and
because the endorsement appeared during the course of litigation and was undated. The
affidavits, etc. in McLean came closer to establishing ownership/holdership than do
Plaintiffs filings herein, and in that case, unlike this one, there was an assignment and
an endorsement. Just likeMcLean, the Lazardis are entitled to reversal of the summary
judgment.
In addition to her motions never being ruled upon by the trial court, Osbelias
request to produce, (244-246), filed September 7, 2011, was never responded to. The
request was reasonably calculated to lead to the discovery of admissible evidence, and it
could not, for this reason, simply be ignored. It is error to grant summary judgment when
a request to produce is outstanding.Henderson v. Reyes, 702 So. 2d 616 (Fla. 3d DCA
1997).
Plaintiff may argue that, because Defendants were defaulted: (1) they have no right
to make arguments on appeal; and/or (2) summary judgment was proper. There are two
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recent cases which tend to support this idea, and which Defendants and their undersigned
counsel believe are incorrect, especially in light of current events as referenced in the
opening sections of this Brief. These cases arePhadael v. Deutsche Bank Trust Company
Americas as Trustee for RALI 2007QS9, case no. 4D11-905 (Fla. 4 DCA, February 8,th
2011) andBeaulieu v. JP Morgan Chase Bank, N.A., case no. 4D10-5288 (Fla. 4 DCA,th
Jan. 11, 2012). Motions for rehearing and rehearing en banc are, as of this writing on the
evening of March 21, 2012, pending inPhadael, and thus that case is not presently final.
Because the plaintiffs in foreclosures have engaged in tactics, such as pretend
document reviews, which are designed to hold cases in a suspended animation of sorts
until the one-year limitations period applicable to motions to vacate final judgments under
Fla. R. Civ. P. 1.540(b)(3) has expired, because servicers commonly pretend as if they are
modifying loans, thus lulling borrowers into complacency as to their foreclosure actions
such that defaults can be obtained, and for several other reasons, the undersigned counsel
believes that the motion for rehearing should be granted, and new decisions should be
issued in Phadaeland Beaulieu. Given the 1.540(b)(3) limitation, this Court should
conclude, in line with numerous authorities, that final judgments in favor of plaintiffs
which lacked standing are judgments entered without jurisdiction. See, e.g., Garcia v.
Stewart, 906 So. 2d 1117 (Fla. 4 DCA 2005);Lovett v. Lovett, 112 So. 768 (Fla. 1927);th
Dept of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994). If judgments entered without
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standing and jurisdiction are void, rather than voidable, they may be attacked at any time
under Fla. R. Civ. P. 1.540(b)(4).
Cases like this one shouldNOTbe decided in deference to defaults - - by clerks of
court - - which are never again mentioned by plaintiffs as they move for SUMMARY
judgments under an entirely different rule. Not only does Rule 1.510 require that the
grounds for summary judgment be stated with particularity, the pattern and practice of the
foreclosure mills - a pattern and practice followed in this case by the Plaintiff and its
counsel - to obtain clerks defaults and then proceed to litigate the matter and move for
final judgments under a different rule - constitutes abandonment of the defaults.
So thoroughly did Plaintiff abandon the default that, on September 21, 2011, 7 days
prior to the summary judgment hearing, it set Defendants Motion to Dismiss for hearing
to occur on November 2 . (Appendix 1). After obtaining summary judgment onnd
September 28 , Plaintiffs counsel, the Florida Default Law Group, sent out its noticeth
cancelling the hearing. (Appendix 2). Despite having made no reference whatsoever to
the default in its motion for summary judgment, Plaintiff may contend thatBeaulieu and
Phadaelsupport affirmance based upon the default entered by the clerk of the lower
court. Those cases are either wrongfully decided, or are distinguishable because counsel
did not make this argument - - that because Fla. R.Civ. P. 1.510 requires that the grounds
for summary judgment be completely and explicitly stated, and because Plaintiff did not
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use the default to establish that there were no questions of material fact below, the
summary judgment is unsupportable on that basis.
Even where a default has been entered, final judgment is not available where the
complaint at issue fails to state a claim. Becerra and Horizon Corp. v. Equity Imports,
Inc., 551 So. 2d 486 (Fla. 3d DCA 1989) provides that failure to state a cause of action,
unlike formal or technical deficiencies, is a total pleading deficiency not curable by a
default judgment. Indeed, even a party in default does not admit that the plaintiff in a
foreclosure action possesses the original promissory note. Venture Holdings &
Acquisitions Group, LLC v. AIM Funding Group, LLC, case no.s 4D10-1848, 4D10-832,
4D10-1159 (Fla. 4 DCA, Nov. 23, 2011).th
Furthermore, a final judgment entered on a complaint which fails to state a cause
of action is void, and it may therefore be attacked at any time. Southeast Land
Developers, Inc. v. All Florida Site and Utilities, Inc., 28 So. 3d 166, 168 (Fla. 1 DCAst
2010) citingMoynet v. Courtois, 8 So. 3d 377 (Fla. 3d DCA 2009) and other cases. The
Amended Complaint in this case fails to state a cause of action:(1) because it is not
verified as required by Fla. R. Civ. P. 1.110; and (2) because its exhibits conflict with its
narrative allegations concerning the question of who owns or holds the Note and
Mortgage. It appears that there is a split among the various courts of appeal as to what
constitutes a void, versus voidable, judgment. This conflict is between Southeast
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Land Developers andMoynet(from the First and Third districts respectively) andPhaedel
and Beaulieu (from this Court.) Defendants ask that this question, given the massive
extent and significance of the current foreclosure crisis and the apparent conflicts among
the district courts of appeal, be certified to the Florida Supreme Court as requiring
resolution.
Defendants respectfully submit thatPhadaelandBeaulieu seem quite incorrect on
standing and jurisdiction matters. Perhaps it is better said that the jurisprudence is
hopelessly conflicted on this muddled, yet highly important, topic. In Defendants view,
standing is a question of subject matter jurisdiction, and attacks upon it may be made and
will be entertained by the courts, no matter when brought. Jurisdiction may be raised at
any time, evensua sponte on appeal, and cannot be waived. See Fla. R. Civ. P. 1.140(b);
see also State of Florida, Dept of Health and Rehabilitative Services v. Schreiber, 561
So. 2d 1236, 1241 (Fla. 4 DCA 1990); Taylor v. Siebert, 615 So. 2d 800 (Fla. 1 DCAth st
1993);In re: Harrold, 296 B.R. 868 (U.S. Bankr. Ct., M.D. Fla. 2003);Klos v. Paulson,
2009 WL 205622 (11 Cir. 2009); Hernandez v. Coopervision, Inc., 661 So. 2d 33 (Fla.th
2d DCA 1995) citing State ex rel. BF Goodrich Co. v. Trammell, 192 So. 175 (Fla. 1939)
and 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994), which the
Hernandezcourt characterized as holding that subject matter jurisdiction is so vital to
a courts power to adjudicate that its absence can be raised at anytime. Indeed, the
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issue of jurisdiction over the subject matter is never waived. Dept of Revenue v.
Daystar Farms, Inc., 803 So. 2d 892, 896 (Fla. 5 DCA 2002); see also Mishoe v.th
Mishoe, 591 So. 2d 1100, 1101 (Fla. 1 DCA 1992); cf. Beaumont v. Bank of New York
st
Mellon, case no. 5D10-3471 (Fla. 5 DCA, Feb. 17, 2012).th
Even where a defendant is in default, an appellate court may entertain its challenges
to subject matter jurisdiction and standing. Global Aerospace, Inc. v. Platinum Jet
Management, LLC, 2011 WL 248543 (S.D. Fla. 2011) at n. 1, citingHerskowitz v. Reid,
187 Fed. Appx 911 (11 Cir. 2006) and Stalley v. Orlando Regl Healthcare Systems,th
Inc., 524 F.3d 1229 (11 Cir. 2008).th
Although Beaumont v. Bank of New York Mellon, case no. 5D10-3471 (Fla. 5th
DCA, Feb. 17, 2012) does not support Defendants position with regard to the question
of whether standing can be waived, itstrongly supports reversal of the summary judgment
on another ground: the failure of Plaintiff to meet the requirements for re-establishment
of a lost note. UnderBeaumont, a plaintiff fails to establish its right to re-establish (and
then enforce) a lost note where it does not prove who lost the note and when it was lost,
among other requirements. Further, a trial court in a final judgment re-establishing the
note must include provisions to protect the defendant in case the note is later sought to
be enforced by a third party. Beaumont. This, the court did not do.
The Notice of Filing should be disregarded as a nullity, as the version served upon
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Defendants did not contain the affidavit or the Note. It should also be disregarded
because the version filed with the trial court did not contain a service list or the Note
about which the affiant purportedly testified. Under Fla. R. Civ. P. 1.510[c],
The movant shall serve the motion at least 20 days before the time fixed
for the hearing, and shall also serve at that time a copy of any summary
judgment evidence on which the movant relies that has not already been
filed with the court.
This portion of the rule was not satisfied because at no time did Plaintiff serve
Defendant with the summary judgment evidence upon which it relied, in particular the
affidavit which was supposed to be attached to the Notice of Filing.
And further, under Rule 1.510[e],
Supporting and opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith.
(Emphasis added). This portion of the rule was violated by the fact that (1) the
Affidavit and the Note were not served at any time and (2) by the fact that, as
reflected in pages 71-73 of the Record, the Note was not attached to the Notice of
Filing or to the Affidavit which was filed (but not served) as an attachment thereto.
Because the Note was not properly re-established, a decree of foreclosure was
entered foreclosing a mortgage not legally associated with a corresponding debt.
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This brings this case in close proximity to Venture Holdings & Acquisitions Group,
LLC v. AIM Funding Group, LLC, case no.s 4D10-1848, 4D10-832, 4D10-1159
(Fla. 4 DCA, Nov. 23, 2011), wherein foreclosure was entered without the Note
th
being re-established. In that case, this Court reversed all four summary judgments at
issue, and took the additional step of dismissing the case without prejudice as to
those defendants which were not in default. This Court should find that, by setting
her Motion to Dismiss for hearing, and by responding to her affirmative defenses by
filing its Motion to Strike (247-249), Plaintiff waived and rendered inoperative the
default as to Osbelia. This being the case, this Court should reverse the summary
judgment as to both Defendants and dismiss the case without prejudice as to Osbelia.
At a minimum, this Court should reverse the Final Judgment as to both Defendants.
Conclusion
There can be no disputing that just as in Venture Holdings, the final
foreclosure judgment must be - -
Reversed and Remanded.
Respectfully submitted this __________ day of March, 2012.
KENNETH ERIC TRENT, P.A.831 East Oakland Park Blvd.
Fort Lauderdale, FL 33334
(954)567-5877; (954)567-5872 [fax]
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By: /s/ Kenneth Eric Trent, Esq.Fla. Bar No. 693601
Certificate of Service
I certify that true and correct copies of the foregoing were sent by U.S. Mail
and facsimile transmission on this ________ day of March, 2012 to Dean A.
Morande, Esq., at 525 Okeechobee Blvd., Ste. 1200 West Palm Beach, FL 33401-
6350 and at (561)659-7368
By: /s/ Kenneth Eric Trent, Esq.
Fla. Bar No. 693601
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