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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR MIAMI-DADE COUNTY

BANK OF AMERICA, N.A. Plaintiff, v. ROY P. WHITE A/K/A/ ROY WHITE, ET AL Defendants. ____________________________/

Case No.: 2013-2012-CA-038856

VERIFIED MOTION TO SET ASIDE DEFAULT, CONTINUE THE TRIAL DATE, AND FOR LEAVE TO FILE THE ATTACHED RESPONSE Comes now, Defendants, ROY P. WHITE ("Defendants "), pursuant to Rules l.190(a) and (e), l .500(d), l.540(b)(l ) and (3), Fla .R.Civ.P. moves this Court to set aside the default entered herein again ROY P. WHITE, to vacate the trial date currently set for August 20th, 2013 at 8:45 am, and for leave to file the attached response and states: 1. As is more particularly set forth below there have been several instances of either mistake, misrepresentation or other misconduct which occurred in this case leading up to the entry of the April 4th, 2013 entry of default, including, but not limited to, the Plaintiff illegally and in violation of the Consent Decree, dual tracked this case; while the Plaintiff Lender and the Defendant are in active loss mitigation, the Plaintiffs attorneys continued in a course of seeking a default against the Defendant, ROY P. WHITE . 2. Said conduct is in direct violation of the Consent Judgment, entered against the Plaintiff, Bank of America, whereby they were not only ordered to pay $35 billion

dollars, but ordered to cease and desist from any further conduct which is identical to that complained of herein. 3. The conduct of Bank of America is horrific and unjust, and includes, but is not limited to: a. Plaintiff knew that the Defendant and Plaintiff were in active loss mitigation and are regularly corresponding. Attached hereto and incorporated herein is the Affidavit of Kethia Hicks, a professional working for Aragon Law Group in assisting the Defendant in obtaining his loan modification or other potential loss mitigation attempts. Her affidavit clearly shows this matter should be resolved through that method with Bank of America. Bank of America has agreed in the consent JUDGMENT that this is the proper venue for resolution, not litigation; b. Plaintiff s representation to the Court that a default should be entered against Mr. ROY P. WHITE without notifying the Court that a response was served upon Plaintiff and Plaintiff and Defendant were working in loss mitigation; c. Defendant, ROY P. WHITE has a good and meritorious defense to the action, and has attached hereto a Motion to Dismiss which he seeks a ruling upon prior to his answer being required, if at all; d. ROY P. WHITE has matters which raise factual issues not addressed in the form summary judgment motion; 4. Plaintiff is seeking a foreclosure summary judgment without proper proof of ownership of the mortgage and mortgage note; and Plaintiffs seeking a foreclosure judgment against property that was not properly security for the mortgage.

5.

ROY P. WHITE has a meritorious defenses and has a basis for questioning this Court's subject matter jurisdiction as is more particularly described below. Pursuant to the attached, the Defendant is making a Motion to dismiss for lack of subject matter jurisdiction. Rule l.140(h)(2), Fla.R. Civ.P. provides that the defense of lack of jurisdiction of the subject matter may be raised at any time. Maynard v. The Florida Board of Education , 2008 Fla. App. LEXIS 5890; 33 Fla. L. Weekly D 1110 (Fla. 2"d DCA 2008) (Standing may be raised even after a verdict is entered as long as it is preserved at the trial court).

6.

Among other matters raised in the Defendants motion, Plaintiff has filed an action in equity1 seeking foreclosure of certain real property located in Miami Dade County, Florida.

7.

Plaintiffs complaint should be dismissed for failure to state a cause of action, failure to comply with conditions precedent in both the note and mortgage, and lack of standing and failure of the proper plaintiff to prosecute this action; admitted fraud by the Plaintiff, Bank of America2, which clearly shows they have unclean hands and therefore are barred forever from bringing an action for equitable relief.

8.

Initially, plaintiffs complaint should be dismissed for lack of standing and the failure of the proper party to file the lawsuit. Although the note and mortgage clearly identify now defunct and criminally prosecuted Countrywide Home Loan Inc., as the

702.01 Equity. All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee. The foreclosure claim shall, if tried, be tried to the court without a jury. History.RS 1987; GS 2501; RGS 3844; CGL 5747; s. 7, ch. 22858, 1945; s. 2, ch. 87-217. 2 SEE EXHIBITS A-E AND THE PLETHORA OF FRAUD COMPLAINTS, COUNTERCLAIMS AND SUITS PENDING AGAINST BANK OF AMERICA FOR FRAUD, TOO NUMEROUS TO LIST HEREIN.

Lender and Owner of the note and mortgage, the complaint specifically states that the owner of the note and mortgage is BANK OF AMERICA, NA which is incorrectly identified as the Plaintiff and as a result the complaint should be dismissed. 9. Plaintiffs complaint should also be dismissed for the failure to attach the original note and mortgage which contain the key terms and conditions of the underlying agreements as well as possible notations and/or amendments identified solely in the original note and mortgage. Rather plaintiff attached as its exhibit what it refers to as a copy of the note, whatever that may actually be. 10. Plaintiffs complaint should further be dismissed for failure to comply with two mandatory conditions precedent required before filing suit and/or accelerating the terms of the note. a. Paragraph 20 of the mortgage requires written notice when the loan servicer has been changed. Although the documents are intentionally confusing, it appears that the original servicer of the loan was changed to Bank of America, N.A. without the requisite written notice; and b. Paragraphs 18 and 22 of the mortgage state in bold black print that specific notice containing mandatory language must be provided to the borrower before filing a lawsuit or accelerating the terms of the note. No such notice was ever provided to borrowers, no copy of such notice is attached to the lawsuit as an exhibit and the complaint must be dismissed as a result. 11. As a result of these deficiencies, plaintiffs have failed to state a cause of action and the complaint should be dismissed.

12.

Plaintiff has committed a plethora of fraud; paid 25 billion dollars in settlements for the fraud the Plaintiff admitted to committing; been convicted in a multiplicity of Federal, State and private causes of action for fraud; therefore barring them from any right of recovery since Florida Statute Section 702.01. "He who comes into equity must come with clean hands." This maxim bars relief for anyone guilty of improper conduct in the matter at hand. It operates to prevent any affirmative recovery for the person with "unclean hands," no matter how unfairly the person's adversary has treated him or her. The maxim is the basis of the clean hands doctrine. Its purpose is to protect the integrity of the court. It does not disapprove only of illegal acts but will deny relief for bad conduct that, as a matter of public policy, ought to be discouraged. A court will ask whether the bad conduct was intentional. This rule is not meant to punish carelessness or a mistake. It is possible that the wrongful conduct is not an act but a failure to act. For example, someone who hires an agent to represent him or her and then sits silently while the agent misleads another party in negotiations is as much responsible for the false statements as if he himself or she herself had made them. Equity will not relieve a plaintiff who was also trying to evade taxes or defraud creditors with a business deal, even if that person was cheated by the other party in the transaction. Equity will always decline relief in cases in which both parties have schemed to circumvent the law. In one very old case, a robber filed a bill in equity to force his partner to account for a sum of money. When the real nature of the claim was discovered, the bill was dismissed with costs, and the lawyers were held in Contempt of court for bringing such an action. This famous case has come to be called The Highwayman (Everet v. Williams, Ex. 1725, 9 L.Q. Rev. 197), and judges

have been saying ever since that they will not sit to take an account between two robbers. 13. Defendant respectfully requests that in the event that this court denies this motion, it certify for immediate appeal the issue: That Bank of America, N.A. should be forever barred from seeking or obtaining equitable relief of foreclosure pursuant to Florida Statute Section 702.01 against Defendant because Plaintiff has unclean hands. 14. Finally, while the Defendant is involved in active loss mitigation efforts, the Plaintiff by the consent decree should have stayed the pending action and dual tracking is strictly prohibited. 15. Because ROY P. WHITEs' loan is an FHA-insured loan, Plaintiff was required to comply with the payment forbearance, mortgage modification, and other foreclosure prevention loan servicing or collection requirements imposed on Plaintiff and the subject FHA mortgage by federal regulations promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C.171O(a). These requirements must be followed before a mortgagee may commence foreclosure. 24 C.F.R. Part 203(C), Servicing Responsibilities Mortgagee Action and Forbearance and Paragraph 9(a) of the subject mortgage. (Lender may, except as limited by regulations issued by the Secretary in the case of payment default....") 16. Plaintiff is required by HUD regulation to ensure that all of the servicing requirements of 24 C.F.R. Part 203(C) have been met before initiating foreclosure. 24 C.F.R.203.606, published August 2, 1982, 47 FR 33252.

17.

Plaintiff failed to carry out its federally-imposed duties which are owed to ROY P. WHITE prior to filing this instant foreclosure lawsuit, and dual tracked while he was actively pursuing loss mitigation.

18.

This raises factual issues relating to these failures and the unclean hands defense, and Plaintiff intentionally did not file the pages of the mortgage which refer Plaintiff's obligations relating to the FHA loan. According to the regulations and mortgage Plaintiff is required to adapt effective collection techniques designed to meet the defendants' individual differences and take account of their peculiar circumstances to minimize the default in their mortgage payments as required by 24 C.F.R. 203.600.

19.

Plaintiff failed to make any reasonable efforts as required by federal regulation to arrange a face to face meeting with ROY P. WHITE before three full monthly installments were unpaid to discuss his circumstances and possible foreclosure avoidance. 24 C.F.R. 203.604, published June 16, 1986, 51 FR 2 1866.

20.

Plaintiff failed to inform ROY P. WHITE that it would make loan status and payment information available to local credit bureaus and prospective creditors, failed to inform Defendant of other assistance, and failed to inform him of the names and addresses of HUD officials to whom further communication could be addressed as required by federal law. 24 C.F.R. 203.604.

21.

Plaintiff is required under federal law to adapt its collection and loan servicing practices to ROY P. WHITES' individual circumstances and to re-evaluate these techniques each month after default and Plaintiff failed to do this also. 24 C.F.R. 203.605, effective August 2, 1996.

22.

Plaintiff failed to perform its servicing duty to the ROY P. WHITE to manage the subject mortgage as required by FHA's special foreclosure prevention workout programs which must include and allow for the restructuring of the loan whereby the borrower pays out the delinquency in installments or advances to bring the mortgage current.

23.

Plaintiff further denied the Defendant with access to repayment plan or special forbearance in the form of a written agreement that would reduce or suspend his monthly mortgage payments for a specific period to allow them time to recover from the financial hardship they were suffering through no fault of his own. Such a plan can involve changing one or more terms of the subject mortgage in order to help ROY P. WHITE bring the claimed default current thereby preventing foreclosure.

24.

Plaintiff s failure to comply with the FHA repayment plan or special forbearance workout programs denied the Defendant with the required access to explore alternatives to avoid foreclosure prior to the addition of additional foreclosure fees and costs.

25.

The Defendant requested that Plaintiff provide him with options to help them save his home and while the loss mitigation process was active, the Plaintiff continued in litigation.

26.

Plaintiff failed to comply with its mortgage servicing responsibilities and the terms of the subject mortgage and as a proximate result, ROY P. WHITES delinquency, if any there is, has been improperly inflated by mortgage foreclosure filing, legal fees, court costs, service and other fees and that Defendant cannot afford to pay. Therefore, ROY P. WHITE remains at the risk of losing his home due to this illegal conduct in

violation of the statutes and Consent Judgment entered against BANK OF AMERICA. 27. Defendant has acted as quickly as possible once they learned of the pending trial date, and is not filing this motion for purposes of delay. WHEREFORE, the Defendant, ROY P. WHITE respectfully requests this court set aside the default entered herein against ROY P. WHITE, set aside and vacate the trial date currently scheduled for August 20th, 2013, and permit the Defendant to file the attached Motion to Dismiss, and for such other and further relief and this Court deems equitable. Respectfully Submitted, VERIFICATION AND CERTIFICATE OF SERVICE WHEREFORE, Defendant ROY P. WHITE A/K/A/ ROY WHITE, respectfully requests the Court to grant the instant Motion to Dismiss and for such other and further relief as this Court deems just and proper. I HEREBY CERTIFY that I have read the foregoing, and the same is true and correct, except as to those matters which are clearly alleged based on information and belief, and I believe them to be true; and a true and correct copy of the foregoing was furnished via US Mail this _____ day of ___________, 2014 to: VAN NESS LAW FIRM, P.A. 1239 E. NEWPORT CENTER DRIVE, SUITE 110 DEERFIELD BEACH, FL 33442 PHONE 954-571-2031 FAX 954 571-2033 EMAIL Pleadings@vanlawfl.com Dated this ______th day of ______, 201_. THE ARAGON LAW GROUP Attorneys for Defendant

777 S. Flagler Dr. Suite 800 West Palm Beach, Florida 33401 Ph: (954) 590-1246 Fax: (954) 590-1229 By: ______________________ Robert L. Ostrov Florida Bar No.: 0078353

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR MIAMI-DADE COUNTY

BANK OF AMERICA, N.A. Plaintiff, v. ROY P. WHITE A/K/A/ ROY WHITE, ET AL Defendants. ____________________________/

Case No.: 2013-2012-CA-038856

DEFENDANT ROY P. WHITE A/K/A/ ROY WHITE'S MOTION TO DISMISS, MOTION TO STRIKE, OR IN THE ALTERNATIVE, MAKE MORE DEFINITE AND CERTAIN COMES NOW Defendant ROY P. WHITE A/K/A/ ROY WHITE, Pro Se, file this Motion to Dismiss Plaintiffs complaint, and pursuant to Rule 2.515 of the Florida Rules of Judicial Administration and Florida Rules of Civil Procedure 1.130, 1.210(a) and 1.140(b)(6), and move to dismiss the complaint and strike the prayer for attorney fees and other equitable relief as to Defendant; or in the alternative, make more definite and certain as the Plaintiff's complaint is so vague and ambiguous that Defendants cannot reasonably required to frame a responsive pleading and state: Specifically, the Defendants hereby move the Court to: A. 1. 2. 3. 4. Dismiss for failure to state a cause of action based on: Lack of standing, Lack of capacity, Lack of Acceleration, That the Court is requested to take judicial notice of the $25 BILLION DOLLAR SETTLEMENT paid by Bank of America, N.A., and others for their commission of fraud, clearly showing that Bank of America, N.A. has unclean hands as a matter of law, and is therefore BARRED FOREVER from seeking or obtaining any equitable relief.

B.

Strike: 5. Complaint for equitable relief.

and as grounds therefore state(s): 28. Plaintiff has filed an action in equity3 seeking foreclosure of certain real property located in Miami Dade County, Florida. 29. Plaintiffs complaint should be dismissed for failure to state a cause of action, failure to comply with conditions precedent in both the note and mortgage, and lack of standing and failure of the proper plaintiff to prosecute this action; admitted fraud by the Plaintiff, Bank of America4, which clearly shows they have unclean hands and therefore are barred forever from bringing an action for equitable relief. 30. Initially, plaintiffs complaint should be dismissed for lack of standing and the failure of the proper party to file the lawsuit. Although the note and mortgage clearly identify now defunct and criminally prosecuted Countrywide Home Loan Inc., as the Lender and Owner of the note and mortgage, the complaint specifically states that the owner of the note and mortgage is BANK OF AMERICA, NA which is incorrectly identified as the Plaintiff and as a result the complaint should be dismissed. 31. Plaintiffs complaint should also be dismissed for the failure to attach the original note and mortgage which contain the key terms and conditions of the underlying agreements as well as possible notations and/or amendments identified solely in the original note and

702.01 Equity. All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee. The foreclosure claim shall, if tried, be tried to the court without a jury. History.RS 1987; GS 2501; RGS 3844; CGL 5747; s. 7, ch. 22858, 1945; s. 2, ch. 87-217. 4 SEE EXHIBITS A-E AND THE PLETHORA OF FRAUD COMPLAINTS, COUNTERCLAIMS AND SUITS PENDING AGAINST BANK OF AMERICA FOR FRAUD, TOO NUMEROUS TO LIST HEREIN.

mortgage. Rather plaintiff attached as its exhibit what it refers to as a copy of the note, whatever that may actually be. 32. Plaintiffs complaint should further be dismissed for failure to comply with two mandatory conditions precedent required before filing suit and/or accelerating the terms of the note. a. Paragraph 20 of the mortgage requires written notice when the loan servicer has been changed. Although the documents are intentionally confusing, it appears that the original servicer of the loan was changed to Bank of America, N.A. without the requisite written notice; and b. Paragraphs 18 and 22 of the mortgage state in bold black print that specific notice containing mandatory language must be provided to the borrower before filing a lawsuit or accelerating the terms of the note. No such notice was ever provided to borrowers, no copy of such notice is attached to the lawsuit as an exhibit and the complaint must be dismissed as a result. 33. As a result of these deficiencies, plaintiffs have failed to state a cause of action and the complaint should be dismissed. 34. Plaintiff has committed a plethora of fraud; paid 25 billion dollars in settlements for the fraud the Plaintiff admitted to committing; been convicted in a multiplicity of Federal, State and private causes of action for fraud; therefore barring them from any right of recovery since Florida Statute Section 702.01. "He who comes into equity must come with clean hands." This maxim bars relief for anyone guilty of improper conduct in the matter at hand. It operates to prevent any affirmative recovery for the person with "unclean hands," no matter how unfairly the person's adversary has treated him or her. The maxim is the basis of the clean hands doctrine. Its purpose is to protect the integrity of the court. It does not

disapprove only of illegal acts but will deny relief for bad conduct that, as a matter of public policy, ought to be discouraged. A court will ask whether the bad conduct was intentional. This rule is not meant to punish carelessness or a mistake. It is possible that the wrongful conduct is not an act but a failure to act. For example, someone who hires an agent to represent him or her and then sits silently while the agent misleads another party in negotiations is as much responsible for the false statements as if he himself or she herself had made them. Equity will not relieve a plaintiff who was also trying to evade taxes or defraud creditors with a business deal, even if that person was cheated by the other party in the transaction. Equity will always decline relief in cases in which both parties have schemed to circumvent the law. In one very old case, a robber filed a bill in equity to force his partner to account for a sum of money. When the real nature of the claim was discovered, the bill was dismissed with costs, and the lawyers were held in Contempt of court for bringing such an action. This famous case has come to be called The Highwayman (Everet v. Williams, Ex. 1725, 9 L.Q. Rev. 197), and judges have been saying ever since that they will not sit to take an account between two robbers. 35. Defendant respectfully requests that in the event that this court denies this motion, it certify for immediate appeal the issue: That Bank of America, N.A. should be forever barred from seeking or obtaining equitable relief of foreclosure pursuant to Florida Statute Section 702.01 against Defendant because Plaintiff has unclean hands. 36. PLAINTIFF HAS NO STANDING TO BRING THIS ACTION: Florida Rules of Civil Procedure 1.210(a) provides: (a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a

personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that persons own name without joining the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as Plaintiffs and any person may be made a Defendant who has or claims an interest adverse to the Plaintiff. Any person may at any time be made a party if that persons presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as Plaintiffs or Defendants, and anyone who refuses to join may for such reason be made a Defendant. Florida Rules of Civil Procedure 1.130 states: (a) Instruments Attached. All bonds, notes, bills of exchange, contracts accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments. (b) Part for All Purposes. Any exhibit attached to a pleading shall be considered a part thereof for all purposes. Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion. 37. When exhibits are inconsistent with Plaintiffs allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983). 38. Every mortgage loan is composed of two documents the note instrument and the mortgage instrument. No matter how much the mortgage instrument is acclaimed as the basis of the agreement, the note instrument is the essence of the debt. Sobel v.

Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA, 1975); Pepe v. Shepherd, 422 So. 2d 910 (Fla. 3 DCA 1982); Margiewicz v. Terco Prop., 441 So. 2d 1124 (Fla. 3 DCA 1983); RESTATEMENT (THIRD) OF PROPERTY (MORTGAGES) 5.4 (1997). The promissory note is evidence of the primary mortgage obligation. The mortgage is only a mere incident to the note. Brown v. Snell, 6 Fla. 741 (1856); Tayton v. American Natl Bank, 57 So. 678 (Fla. 1912); Scott v. Taylor, 58 So. 30 (Fla. 1912); Young v. Victory, 150 So. 624 (Fla. 1933); Thomas v. Hartman, 553 So. 2d 1256 (Fla. 5 DCA 1989); RESTATEMENT (THIRD) OF PROPERTY (MORTGAGES) 1.01 (1997) The mortgage instrument is only the security for the indebtedness. Grier v. M.H.C. Realty Co., 274 So. 2d 21 (Fla. 4 DCA 1973); Mellor v. Goldberg, 658 So. 2d 1162 (Fla. 2 DCA 1995); Century Group Inc. v. Premier Fin. Services East L. P., 724 So. 2d 661 (Fla. 2 DCA 1999) 39. The subject promissory note is a negotiable instrument because it is an unconditional promise to pay a fixed amount of money and it was payable to the order of First Franklin at the time it was first issued. ( 673.1041(1), Fla. Stat. (2009); 673.1041(2), Fla. Stat. (2009); 673.1041(5),Fla. Stat. (2009); and 673.1091(2), Fla. Stat. (2009)) Neither the mortgage instrument nor the unrecorded and unproduced assignment of mortgage are negotiable instruments as the term "instrument" as used in 673, Fla. Stat. (2009), et. seq., only means a negotiable instrument. ( 673.1041(2), Fla. Stat. (2009)) The promissory note clearly states the intent of the Appellant to make the Lender, First Franklin, the Payee. ( 673.1101(1), Fla. Stat. (2009)) That's because the document specifically identifies First Franklin as the Payee.

40.

Florida law defines those who are entitled to enforce a negotiable instrument as either a holder of the instrument, a non-holder in possession who has the rights of a holder or a person not in possession who is entitled to enforce it as a lost instrument. ( 673.3011, Fla. Stat. (2009)) Florida law goes so far as to permit a person to be entitled to enforce an instrument even though that person is not the owner of the instrument or is in wrongful possession of the instrument. However, the subject promissory note is more restrictive in its' characterization of who may enforce it because the subject promissory note and the subject mortgage instrument together were designed to have been sold in fractional interests on the secondary market. The subject mortgage instrument provides The Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. Having multiple parties attempting to enforce a single promissory note could destroy the entire secondary market system in mortgages. In order to prevent that from happening, the subject promissory note does not make a mere possessor of it a holder, rather, one becomes a holder only upon transfer of the promissory note along with the right to enforce it. The subject promissory note provides The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the Note Holder.5 This is consistent with Florida Statutes 673.2031(1) which provides that an instrument is transferred

In the case of In Re Hayes, 393 B.R. 259, 266-268 (Bankr. D. Mass. 2008), the movant seeking relief from stay failed to show that it ever had any interest in the note at issue. In that case the court found the movant lacked standing altogether because it failed to show that the note was ever transferred to it, and thus had no rights of its own to assert. Having a note in one's possession is not synonymous with transfer.

when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 41. The obligation of an issuer of a note owes that obligation to a person entitled to enforce the instrument or to an indorser who paid the instrument under Florida Statutes 673.4151. ( 673.4121, Fla. Stat. (2009)) A transfer of possession of a bearer instrument is sufficient to transfer enforceable rights in the instrument. ( 673.2011(2), Fla. Stat. (2009)) That stands in stark contrast to a promise or order that is payable to order, which is payable to the identified person. ( 673.1091(2), Fla. Stat. (2009)) In the case of an instrument payable to a specifically identified person, transfer of possession of the instrument along with an indorsement is necessary.6 ( 673.2011(2), Fla. Stat. (2009) & 673.2031(3), Fla. Stat. (2009)) Without that necessary indorsement, the transferee still receives an enforceable interest however, it's not enforceable against the issuer, rather, the enforceable interest is the specifically enforceable right to the unqualified indorsement of the transferor.7 ( 673.2031(3), Fla. Stat. (2009)) 42. In the case at hand, if the subject promissory note had been delivered to the Plaintiff by Countrywide with the purpose of giving the Plaintiff rights to enforce it
6

An "indorsement" means a signature, other than that of a signer as maker, drawer, or acceptor, made on an instrument for the purpose of negotiating the instrument. ( 673.2014(1), Fla. Stat. (2009)) 7 Addressing the same issue, the Court in the case of In re Kang Jin Hwang, 396 B.R. 757, 763 (Bankr.C.D.Cal., 2008) stated The transfer of a negotiable instrument has an additional requirement: the transferor must indorse the instrument to make it payable to the transferee. In the case of In re Wilhelm, Case No. 08-20577-TLM (Bankr.Idaho, 2009) the Court recognized that if the note instrument, by its terms, is not payable to the transferee, then before the transferee can enforce it the transferee must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it. (At page 18) The Court in In re Carlyle, 242 B.R. 881 (Bankr. E.D.Va., 1999) came to the same conclusion at page 887 of the Opinion.

against the Defendants, before Plaintiff could enforce the promissory note against the Defendants it had to either obtain an indorsement from Countrywide or get an Order from a court of competent jurisdiction enforcing it's right to the unqualified indorsement of First Franklin the end result either way is that the promissory note still must be indorsed. 43. Florida Rules of Civil Procedure 1.210(a) provides the basis for standing to bring an action, but the Plaintiff meets none of these criteria. No Florida case holds that a separate entity can maintain suit on a note payable to another entity unless the requirements of Rule 1.210(a) of the Florida Rules of Civil Procedure and applicable Florida law are met. Corcoran v. Brody, 347 So. 2d 689 (Fla. 4th DCA 1977). 44. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. This entitlement to prosecute a claim in Florida courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et. al., 462 So. 2d 1178, (Fla. 3d DCA 1985). In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Plaintiff is not entitled to maintain an action in which it seeks to foreclose on a note which Plaintiff does not own. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975). 45. Plaintiff has not established that it is the real party in interest, is in privity of contract with the true holder of the note or is shown to be authorized to bring this action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr. S. D. Fla. 1985) [It is axiomatic that a suit cannot be prosecuted to foreclose a mortgage which secures the

payment of a promissory note, unless the Plaintiff actually holds the original note, citing Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla. 1955)]; Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975), See also 37 Fla. Jur. Mortgages and Deeds of Trust 240 (One who does not have the ownership, possession, or the right to possession of the mortgage and the obligation secured by it, may not foreclose the mortgage).

THIS ACTION SHOULD BE DISMISSED BECAUSE BANK OF AMERICA NAS LACK OF CAPACITY TO BRING THIS ACTION 46. In addition to the Plaintiffs clean hands, which is a bar to capacity to sue; the Plaintiff further lacks the capacity to bring this action, as it is neither licensed to do business, nor registered to do business in the State of Florida; and is seeking to enforce a note and mortgage that were fraudulently obtained by Countrywide. 47. Florida Rules of Civil Procedure, 1.120(a) was derived from Federal Rule of Civil Procedure 9(a). The issue of capacity to sue may be raised by motion to dismiss where the defect appears on the face of the complaint. Herschel California Fruit Products Co. v. Hunt Foods, 111 F. Supp. 603 (1975), quoting Coburn v. Coleman, 75 F. Supp. 107 (1974); Klebanow v. New York Produce Exchange, 344 F.2D 294 (2nd Cir., 1965). Failure to raise the issue of a Plaintiff's capacity by a specific negative averment has been held to constitute a waiver of that defense. McDonough Equip. Corp. v. Sunset Amoco West, Inc., 669 So.2d 300 (Fla. 3d D.C.A. 1996) ; Plumbers Loc. U.N. 519, Miami, Fla. v. Service Plbg. Co., Inc. 401 F.Supp. 1008 (S.D. Fla., 1975); and see Sun Valley

Homeowners Inc., v. American Land Lease, Inc., 927 So.2d 259 (Fla. App. 2d Dist. 2006); Shaw v. Stuckman, 105 Nev. 128 (1989). 48. Florida Rules of Civil Procedure, 1.120(a) states: Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleaders knowledge. Florida Rules of Civil Procedure, 1.110(b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the courts jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, 49. Capacity to sue is an absence or a legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties, 31, (1971). This is in contrast to standing which requires that a party have a sufficient interest in the outcome of litigation to warrant the court's consideration of it's position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla. App. 4 Dist., 1982). Because BANK OF AMERICA HAS UNCLEAN HANDS, IT IS BARRED FROM RECOVERY. 50. Defendant respectfully requests that in the event that this court denies this motion, it certify for immediate appeal the issue: That Bank of America, N.A. has no capacity to sue for equitable relief, and therefore should be forever barred from seeking or

obtaining equitable relief of foreclosure pursuant to Florida Statute Section 702.01 against Defendant because Plaintiff has unclean hands. 51. BANK OF AMERICA IS BARRED FROM RECOVERY FOR LACK OF ACCELLERATION AND COMPLIANCE WITH THE CONDITIONS PRECEDENT CONTAINED IN THE DOCUMENTS IT ATTACHED TO THE COMPLAINT. 52. Plaintiff uses its Complaint as Notice of Acceleration. (Complaint, par. 9) The Complaint is devoid of an allegation that Notice of Acceleration has been given as required by the Mortgage. The Mortgage requires Notice of Acceleration be given prior to instituting suit. (Complaint, Mortgage, par. 18, 20 & 22) Notice of Acceleration is both a condition precedent and a covenant. 53. The Mortgage provides that no suit may be commenced until acceleration notice has been given pursuant to the terms of the Mortgage. (Complaint, Mortgage, par. 20) That notice must be at least 30 days prior to the initiation of the suit. (Reference in par. 20 to par. 22 of the Mortgage which states 30 days notice required) Additionally, the notice that is required is that sent by first class mail to the defendants. (Pl. Complaint, Mortgage par. 15). 54. The requirement of notice prior to acceleration is both a condition and a covenant. The Plaintiff admits in its complaint that the Complaint itself is notice of acceleration. That is a material violation of the terms of the Mortgage which provide that no suit may be commenced prior to that notice being given. Additionally, there is no reference in the Complaint that any document was sent by first class mail to the Defendant. 55. Based on 22 of the Mortgage and the definition of lender" set forth on page I

of the Mortgage, Amedas v. Brown, 505 So.2d 1091 (Fla. 2nd DCA 1987), a default notice from the "lender" is a condition precedent prior to filing this complaint, Dykes v Trustbank Savings. F.S,B., 567 So.2d 958 (Fla. 2nd DCA 1990); Gomez v. American Savings and Loan Ass`n, 515 So.2d 301 (Fla, 4th DCA 1987): Rashid v. Newberry Federal Savings and Loan Association, 502 So.2d 1316 (Fla. 3rd DCA 1987); Rashid v. Newberry Federal Savings and Loan Association, 526 So.2d 772 (Fla. 3rd DCA 1988). 56. Because no notice was sent, Plaintiff was further barred from obtaining the relief sought and the complaint should be dismissed on that basis. Respectfully Submitted, VERIFICATION AND CERTIFICATE OF SERVICE WHEREFORE, Defendant ROY P. WHITE A/K/A/ ROY WHITE, respectfully requests the Court to grant the instant Motion to Dismiss and for such other and further relief as this Court deems just and proper. I HEREBY CERTIFY that I have read the foregoing, and the same is true and correct, except as to those matters which are clearly alleged based on information and belief, and I believe them to be true; and a true and correct copy of the foregoing was furnished via US Mail this _____ day of ___________, 2014 to: VAN NESS LAW FIRM, P.A. 1239 E. NEWPORT CENTER DRIVE, SUITE 110 DEERFIELD BEACH, FL 33442 PHONE 954-571-2031 FAX 954 571-2033 EMAIL Pleadings@vanlawfl.com Dated this ______th day of ______, 201_. THE ARAGON LAW GROUP Attorneys for Defendant

777 S. Flagler Dr. Suite 800 West Palm Beach, Florida 33401 Ph: (954) 590-1246 Fax: (954) 590-1229 By: ______________________ Robert L. Ostrov Florida Bar No.: 0078353

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR MIAMI-DADE COUNTY

BANK OF AMERICA, N.A. 038856 Plaintiff, v. ROY P. WHITE A/K/A/ ROY WHITE, ET AL Defendants. ____________________________/ EXHIBITS

Case No.: 2013-2012-CA-

Defendant, respectfully requests that this Court take judicial notice8 of the following cases, convictions and other reprehensible conduct of Bank of America, NA and Countrywide
8

Fla. Stat. 90.201 Matters which must be judicially noticed

The Court SHALL take judicial notice of: o Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States. (ex. Fla. Stat. 90.201-Matters which must be Judicially Noticed) o Florida rules of court that have statewide application, its own rules, and the rules of United States courts adopted by the United States Supreme Court. (ex. Fla. R. Fam. Law R. Proc. 12.450-Evidence) o Rules of court of the United States Supreme Court and the United States Courts of Appeal (ex. Rule 5. of the U.S. Supreme Court Rules-Admission to the bar) Fla. Stat. 90.202 Matters which may be judicially noticed The Court May take judicial notice of: o Special, local, and private acts and resolutions of the Congress of the United States and of the Florida Legislature o Decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the United States. o Contents of the Federal Register o Laws of foreign nations and of an organization of nations. o Official actions of the legislative, executive, and judicial departments of the United States and of any state, territory, or jurisdiction of the United States

o Records of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States o Rules of court of any court of this state or of any court of record of the United States or of any other state, territory, or jurisdiction of the United States o Provisions of all municipal and country charters and charter amendments of this states, provided they are available in printed copies or as certified copies. o Rules promulgated by governmental agencies of this state which are published in the Florida Administrative Code or bound written copies o Duly enacted ordinances and resolutions of municipalities and countries located in Florida, o Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court. (ex. Fleming Island is in Clay County) o Facts that are not subject to dispute because they are capable of accurate and ready determinations by resort to sources whose accuracy cannot be questioned. (The distance between the office and the courthouse.) o Official seals of governmental agencies and departments of the United States and of any state, territory, or jurisdiction of the United States. Fla. Stat. 90.203 Compulsory Judicial Notice upon request A court SHALL take judicial notice of any matter in Fla. Stat. 90.202 when a party requests it and: o Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare toe meet the request. o Furnishes the court with sufficient information to enable it to take judicial notice of the matter. Fla. Stat. 90.204 Determination of propriety of judicial notice and nature of matter noticed When a court determines the take judicial notice of a matter on its own motion, or when a party requests judicial notice and fails to comply with Fla. Stat. 90.203(1), the court must give each party an opportunity to present argument why the court should or should not take judicial notice. Court can use any information it wants when deciding whether to take judicial notice of a matter with the exception of privileged information, or information that is excluded as irrelevant under Fla. Stat. 90.403. When the court relies on information not received in open court the court is required to make the information relied upon a part of the court record, afford each party an opportunity to challenge the information, and allow each party to offer additional information before judicial notice is taken. Fla. Stat. 90.205 Denial of a request for judicial notice. When a court is going to deny a request for judicial notice, the court shall inform the parties at the earliest practicable time and indicate for the record that it has denied the request for judicial notice. Fla. Stat. 90.206 Instructing jury on judicial notice. The court may instruct the jury during the trial to accept as a fact a matter judicially noticed.

Home Loans, which forever bars Plaintiff from seeking or obtaining equitable relief from the Defendant: THE ARAGON LAW GROUP Attorneys for Defendant 777 S. Flagler Dr. Suite 800 West Palm Beach, Florida 33401 Ph: (954) 590-1246 Fax: (954) 590-1229 By: ______________________ Robert L. Ostrov Florida Bar No.: 0078353

Fla. Stat. 90.207 Judicial notice by trial court in subsequent proceedings even if a court fails to take judicial notice of a matter in one proceeding does not preclude the court from taking judicial notice in a later proceeding.

EXHIBIT A UNITED STATES OF AMERICA DEPARTMENT OF THE TREASURY COMPTROLLER OF THE CURRENCY ) ) ) AA-EC-11-12 ) ) ) ) CONSENT ORDER The Comptroller of the Currency of the United States of America ("Comptroller"), his national bank examiners and other staff of the Office of the Comptroller of the Currency OCC"), as part of an interagency horizontal review of major residential mortgage servicers, has an examination of the residential real estate mortgage foreclosure processes of Bank of America, N.A., Charlotte, NC ("Bank"). The OCC has identified certain deficiencies and unsafe or unsound practices in residential mortgage servicing and in the Banks initiation and handling of foreclosure proceedings. The OCC has informed the Bank of the findings resulting from the examination. The Bank, by and through its duly elected and acting Board of Directors ("Board"), has executed a Stipulation and Consent to the Issuance of a Consent Order, dated April 13, 2011 (Stipulation Consent), that is accepted by the Comptroller. By this Stipulation and Consent, which is incorporated by reference, the Bank has consented to the issuance of this Consent Cease and Desist Order ("Order") by the Comptroller. The Bank has committed to taking all necessary and appropriate steps to remedy the deficiencies and unsafe or unsound practices identified by the OCC, and to enhance the Banks residential mortgage servicing and foreclosure processes. The Bank has begun implementing procedures to remediate the practices addressed in this Order. ARTICLE I COMPTROLLERS FINDINGS The Comptroller finds, and the Bank neither admits nor denies, the following: (1) The Bank is among the largest servicers of residential mortgages in the United States, and services a portfolio of 13,500,000 residential mortgage loans. During the recent housing crisis, a substantially large number of residential mortgage loans serviced by the Bank became delinquent and resulted in foreclosure actions. The Banks foreclosure inventory grew substantially from January 2009 through September 2010.

In the Matter of: Bank of America, N.A. Charlotte, NC

(2)

In connection with certain foreclosures of loans in its residential mortgage servicing portfolio, the Bank: (a) filed or caused to be filed in state and federal courts affidavits executed by its employees or employees of third-party service providers making various assertions, such as ownership of the mortgage note and mortgage, the amount of the principal and interest due, and the fees and expenses chargeable to the borrower, in which the affiant represented that the assertions in the affidavit were made based on personal knowledge or based on a review by the affiant of the relevant books and records, when, in many cases, they were not based on such personal knowledge or review of the relevant books and records; filed or caused to be filed in state and federal courts, or in local land records offices, numerous affidavits or other mortgage-related documents that were not properly notarized, including those not signed or affirmed in the presence of a notary; litigated foreclosure proceedings and initiated non-judicial foreclosure proceedings without always ensuring that either the promissory note or the mortgage document were properly endorsed or assigned and, if necessary, in the possession of the appropriate party at the appropriate time; failed to devote sufficient financial, staffing and managerial resources to ensure proper administration of its foreclosure processes; failed to devote to its foreclosure processes adequate oversight, internal controls, policies, and procedures, compliance risk management, internal audit, third party management, and training; and failed to sufficiently oversee outside counsel and other third-party providers handling foreclosure-related services.

(b)

(c)

(d)

(e)

(f)

(3)

By reason of the conduct set forth above, the Bank engaged in unsafe or unsound banking practices

EXHIBIT B Federal prosecutors slapped Bank of America with a $1 billion-plus civil mortgage fraud lawsuit Wednesday, accusing the bank of engineering a scheme that defrauded federally-backed mortgage buyers Fannie Mae and Freddie Mac during the national financial crisis. The complaint filed in U.S. District Court in New York accuses the bank of using a loan-origination program called the "Hustle" to process mortgage applications at high speed with little checking for fraud, misstatements or other wrongdoing. Prosecutors charge the program, allegedly in operation from at least 2007 through 2009, was begun under Countrywide Financial and Countrywide Home Loans, and was continued by Bank of America when it bought Countrywide's operations in a controversial July 2008 acquisition. The result, the suit alleges, was defective mortgage loans that defaulted after Bank of America sold them to Fannie and Freddie, causing more than $1 billion in losses and thousands of foreclosures, according to the 46-page complaint filed in Manhattan. "Countrywide and Bank of America made disastrously bad loans and stuck taxpayers with the bill," said Manhattan U.S. Attorney Preet Bharara, who announced the lawsuit with Steve Linick, inspector general of the Federal Housing Finance Agency (FHFA), and Christy Romero, special inspector general of the Troubled Asset Relief Program (TARP). "Countrywide and Bank of America systematically removed every check in favor of its own balance - they cast aside underwriters, eliminated quality controls, incentivized unqualified personnel to cut corners and concealed the resulting defects," said Bharara. "These toxic products were then sold to the government sponsored enterprises as good loans." Citing internal Countrywide documents, prosecutors said the aim of "Hustle" - officially HSSL, or High Speed Swim Lane - was to have loans "move forward, never backward," and to remove "toll gates" that could slow the loan process. "In lieu of underwriter review, Countrywide assigned critical underwriting tasks to loan processors who were previously considered unqualified even to answer borrower questions," the lawsuit charged. The scheme also contained a speed incentive. Employees involved in mortgage processing were awarded bonuses based on volume, eliminating previous metrics that helped calculate loan quality. The lawsuit says Countrywide executives were aware of the problems. For example, a quality review in January 2008 showed that 57% of "Hustle" loans defaulted. Instead of notifying Fannie and Freddie, Countrywide, the suit alleges, deliberately concealed the quality of the loans it sold to Bank of America. The suit says Countrywide even offered a bonus to quality-control workers who could "rebut" defaults found under review. Countrywide, and later Bank of America, of sold "thousands" of "Hustle" loans to Fannie and Freddie. Fannie and Freddie buy mortgages from banks, package them and then sell the packaged securities to investors. When Fannie and Freddie buy loans from banks, banks can make new loans to aspiring home owners. Fannie and Freddie, in addition to mortgages they issue, earn profits selling pooled loans of differing credit quality to institutional investors. Fannie and Freddie guarantee loans that are packaged into securities sold to investors. But, Fannie and Freddie also didn't review the mortgages before they were purchased from banks. The agencies relied on banks' statements asserting the loans met certain qualifications. The case is the sixth filed in the past 18 months by the Manhattan U.S. Attorney's office against major banks over allegations of reckless mortgage practices that contributed to the financial crisis. Meantime, a coalition of fair housing agencies has amended an earlier complaint against the nation's largest bank, accusing it of failing to maintain and market foreclosed homes in black and Latino neighborhoods. The coalition evaluated more than 500 homes Bank of America owns in 13 cities and found

significant disparities in how houses in predominately non-white neighborhoods were maintained and marketed compared with houses in mostly white neighborhoods. "It's illegal for Bank of America to provide far worse maintenance or repairs in communities of color," said Peter Romer-Friedman, an attorney representing the fair housing agencies. "There is simply no legal justification for failing to address these basic maintenance and marketing issues."

EXHIBIT C As part of a consent order with federal bank regulators, the Office of the Comptroller of the Currency (OCC), the Office of Thrift Supervision (OTS) (independent bureaus of the U.S. Department of the Treasury), and the Board of Governors of the Federal Reserve System, fourteen mortgage servicers and their affiliates are identifying customers who were part of a foreclosure action on their primary residence during the period of January 1, 2009 to December 31, 2010. The Independent Foreclosure Review is providing homeowners the opportunity to request an independent review of their foreclosure process. If the review finds that financial injury occurred because of errors or other problems during their home foreclosure process, the customer may receive compensation or other remedy.

EXHIBIT D Late last year, the country's bank regulators launched a massive program to evaluate millions of foreclosure cases and compensate homeowners who fell victim to the banks' flawed or illegal practices. Regulators dubbed it the "Independent Foreclosure Review" to emphasize that the banks would not be making key decisions about loans they had made or serviced. But a raft of evidence internal Bank of America memos and emails obtained by ProPublica, interviews with two bank staff members who have worked on the review, and little-noticed documents released late last year by a federal banking regulator throw the independence of the review into serious doubt. Together, they indicate that Bank of America the financial giant with the largest number of homeowners eligible for the program is performing much of the work itself.
Do You Work in Mortgage Servicing or as a Foreclosure File Reviewer?
If youve worked for a servicer or on the Independent Foreclosure Review, contact our lead reporter.

Resources

The State of HAMP See the performance of all the mortgage servicers. Making Home Affordable.gov The administrations web site for the foreclosure prevention program. Provides an FAQ, homeowner examples, and other tools to see whether you might qualify for the program. Foreclosure Avoidance Counselors A list of HUD-approved housing counseling agencies nationwide. FTC Tips for Mortgage Servicing Consumers Tips for homeowners from the Federal Trade Commission. Program Guidelines for Mortgage Servicers These rules lay out how mortgage servicers are supposed to conduct the program. Calculated Risk A finance and economics blog that provides news and metrics on the state of the housing market.

Did Your Bank Wrongfully Seek to Foreclose on You? We'd like to hear fromcurrent and former homeowners who wrongfully faced foreclosure in the last couple of years. Do You Work in Mortgage Servicing or as a Foreclosure File Reviewer? If youve worked for a servicer or on the Independent Foreclosure Review,contact our lead reporter.

The ultimate decision as to whether and how much a homeowner will be compensated is not made by Bank of America, the evidence shows, but is based largely on work that the bank itself performs. One current employee called that crucial judgment "only a matter of double checking" the bank's work. Moreover, the bank gets a chance to challenge that key decision before it becomes final an opportunity not given to homeowners. Bank of America strongly objects to ProPublica's analysis. It insists that the independence of the review has never been compromised. It maintains that its role "has been and remains gathering documents." While it may discover "an error" in the course of that work, the bank says that an independent review conducted by an outside firm "is the sole and final basis" for determining whether homeowners have been harmed and how much compensation they merit.

A bank spokesman questioned ProPublica's fairness, writing that "there are no facts to support your claim. Yet it seems you have made a decision to move forward with a story based on speculation and a preconceived notion of this issue." Bank of America's regulator, the Office of the Comptroller of the Currency (OCC), also maintained that the review was independent. After seeing the internal bank documents obtained by ProPublica, the OCC investigated, officials said. The OCC concluded that the documents, which include a memo sent by Bank of America executives to the hundreds of bank employees working on the Independent Foreclosure Review, are "incomplete and inaccurate," said Deputy Comptroller for Large Bank Supervision Morris Morgan. But the documents and interviews tell a sharply different story, and the stakes are high. The maximum cash compensation a homeowner can win through the foreclosure review is $125,000. Regulators set different amounts for the various errors and abuses homeowners endured, and those distinctions can result in widely differing payments for instance $15,000 instead of $125,000 for homeowners who suffered very similar abuses. ProPublica provided the internal Bank of America documents to Sen. Robert Menendez, who chaired a congressional hearing overseeing the foreclosure reviews. He said, "Congress was led to believe that the consultants would be analyzing homeowner foreclosures completely independently of the Wall Street banks, but these memos raise serious questions as to whether that's true. If banks are trying to skew the results in their favor, regulators should stop that immediately." The senator also said that regulators "should ensure that homeowners have the same opportunities banks do to influence and contest the findings of the foreclosure reviews." The Document Trail Federal regulators designed the program to work like this: Each of the big banks would hire an "independent consultant" to conduct reviews of the bank's foreclosure cases. To ensure that these consultants really were independent, the regulators had to approve them. In September 2011, Bank of America hired Promontory Financial Group to be its independent consultant. Two months later, the OCC released the contract between Bank of America and Promontory. The 118-page document received little notice, but it clearly spells out that Promontory will make its decision only after reviewing the bank's own analysis of each homeowner's claim. When a homeowner sends in a complaint about the way Bank of America handled his or her foreclosure, the contract states, the bank "will process the complaint and provide the complaint, supporting resolution documentation, report of its findings, and proposed resolution to Promontory for independent review and decision concerning the complaint at issue." Promontory, the contract continues, will then review the "complaints and claims, together with [Bank of America's] recommended resolution and supporting documentation, and provide a decision on the complaint." Job ads posted in the fall of 2011 for "Foreclosure File Reviewer" positions at Bank of America reflect this scope of work. Among the job duties listed in one ad were "Complete Claim Review and perform Harm Evaluation according to Promontory/OCC definitions"; "If there was financial injury, determine the amount"; and "Perform final

determination of Harm." The ads were posted by staffing companies, but the bank confirmed to ProPublica it was the ultimate employer. An internal bank document created to train employees on their role in the reviews also describes a "claim review" process at the bank. Employees would be running tests on the files to see if there was "harm done to the customer as a result of faulty servicing." Seven months after the review program had been underway, regulators released their plan for how homeowners would be compensated for abuses and errors. The bank's role then changed, the internal documents say. A June 2012 internal memo from Bank of America executives to its employees working on the review says the bank will perform all analyses except the final determination of how much, if any, compensation the homeowner deserved. The OCC has specified eight tests to evaluate whether a homeowner was harmed by a bank, ranging from wrongly rejecting attempts to win loan modifications to charging bogus fees. Bank of America would perform seven of these tests, the memo states, but the final test the decision of what compensation the homeowner would receive would be performed by Promontory. The bank executives wrote that moving the final test over to Promontory would make the entire process more efficient. Bank of America would be able to devote more resources to its seven tests and especially "the highly complex and time consuming" test of whether the homeowner was correctly reviewed for a loan modification. The division of labor with Bank of America analyzing the files for problems and Promontory deciding on the appropriate compensation based on those problems meant that homeowners who qualified for compensation would get their checks sooner, they wrote. The executives hailed the move as bolstering the integrity of the reviews. The change "ensures that harm and financial injury determinations are made solely by the Independent Consultant, further underscoring our commitment to the independence of the [Independent Foreclosure Review]." Employees who have worked on Bank of America's foreclosure review told ProPublica the memo reflects what they've been hired to do: analyze homeowners' claims, not merely fetch documents for Promontory to analyze. Following a procedure set out by Promontory, they perform tests to see if the bank properly handled the loan. Their work, Bank of America training materials and managers told them, is crucial to the final decision of how much if any compensation homeowners will receive. As for Promontory's role in making the final determination, a Bank of America employee said the widespread understanding among bank staff working on the review was that "it's only a matter of double-checking." Bank of America appears to have far more employees working on the review than does Promontory. The bank's employees number about 1,750 according to a spokesman, while Promontory's contract for the review estimates it will need 469. Promontory declined to say how many staff are currently working on the review. Its contract estimated that roughly 290,000 files would need to be reviewed over about a year. OCC deputy comptroller Morris said banks might have more staff for the reviews than the consultants because gathering all necessary documents can be time consuming. The Bank of America memo also announced another change: the creation of a de facto appeals procedure for the bank. Designed in part "as a response" to Promontory

deciding homeowner compensation, the bank would be adding an "Additional Information" unit, the executives wrote. The unit's job, an employee said, is to respond when Promontory finds that a homeowner deserves compensation by producing any evidence that the bank didn't commit the abuse or error. In contrast, homeowners who file a complaint will have no opportunity to appeal the determination of whether they deserve compensation or not. ProPublica asked Bank of America and Promontory to provide any additional internal documents that would shed more light on the roles played by the bank and Promontory. They declined to make any available.

EXHIBIT E Landry v. Countrywide Home Loans, Inc.


731 So. 2d 137 - Fla: Dist. Court of Appeals, 1st Dist., 1999 - Google Scholar 731 So.2d 137 (1999). Dale R. LANDRY and wife, Ulrike P. Landry, Appellants, v. COUNTRYWIDE HOME LOANS, INC., Appellee. No. 98-1594. District Court of Appeal of Florida, First District. April 27, 1999. Douglas L. Smith ... Cited by 14 How cited Related articles Cite

Collins v. Countrywide Home Loans, Inc.


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Silver v. Countrywide Home Loans, Inc.


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Mortellaro & Sinadinos, PLLC v. Countrywide Home Loans


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Kaminik v. Countrywide Home Loans, Inc.


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Betaco, Inc. v. Countrywide Home Loans, Inc.


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Dixon v. Countrywide Home Loans, Inc.


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Zegers v. Countrywide Mortg. Ventures, LLC


569 F. Supp. 2d 1259 - Dist. Court, MD Florida, 2008 - Google Scholar

569 F.Supp.2d 1259 (2008). Jean ZEGERS, Suzanne Peterson, and Doug Shukers, Plaintiffs, v. COUNTRYWIDE MORTGAGE VENTURES, LLC, d/b/a Countrywide KB Home Loans, and Countrywide Home Loans, Inc., Defendants. Case No. 6:07-cv-1893-Orl-22DAB. ... Cited by 36 How cited Related articles Cite

American Gen. Home Equity, Inc. v. COUNTRYWIDE LOANS, INC.


769 So. 2d 508 - Fla: Dist. Court of Appeals, 5th Dist., 2000 - Google Scholar 769 So.2d 508 (2000). AMERICAN GENERAL HOME EQUITY, INC., Appellant, v. COUNTRYWIDE HOME LOANS, INC., etc., et al., Appellees. No. 5D00-549. District Court of Appeal of Florida, Fifth District. October 20, 2000. John C. Englehardt, Orlando, for Appellant. ... Cited by 5 How cited Related articles Cite

Evans v. Walter Industries, Inc.


449 F. 3d 1159 - Court of Appeals, 11th Circuit, 2006 - Google Scholar ... CAFA does not change the traditional rule that the party seeking to remove the case to federal court bears the burden of establishing federal jurisdiction. See Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir.2005). ... Cited by 202 How cited Related articles All 2 versions Cite