IN THE CURCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

CIVIL DIVISION CASE NUMBER 51-2010-CA-2281-WS-J-2
MIDFIRST BANK, N.A., Plaintiff
Vs.
ANDY KLAUS, DEFENDANT 1

RESPONSE TO PLAINTIFFs MOTION FOR SUMMARY

JUDGMENT
MOTION TO DENY
Comes now, Andy Klaus, pro-se, in forma pauperis, and
Defendant 1 in this case, files this Response to Plaintiffs
Motion for Summary Judgment and hereby objects to such
motion and denies that such motion has sufficient merit for
favorable ruling from this Court.
1. On or about January 03, 2012, Plaintiff has filed a
Motion for Summary Judgment against this
Defendant.

2. This Defendant asserts that the Plaintiff has failed to

demonstrate the absence of genuine issues of
material fact and has failed sustain its burden to be
entitled to the entry of summary judgment.

A) On or about March 8, 2011, the process of this

above styled action was served upon this
Defendant.

B) On or about March 25, 2011, this Defendant filed

an answer to this complaint and provided
affirmative defenses and other defenses in
response to the above styled action.
C) This Defendant, in its answer of this complaint,
provided the following The Plaintiff, Midfirst Bank,
has no financial interest in the note or mortgage.

i) On or about March 25, 2011, this Defendant

requested production of the original note and
mortgage referenced in this foreclosure
complaint.

ii)On or about December 30, 2011, the Plaintiff

provided notice of filing the original note,
original mortgage, and original assignments of
the mortgage.

iii)This Defendant asserts that the note and

mortgage filed with this Court is NOT the
original, and likewise objects and denies that
the original note and mortgage has been filed
with this Court.

iv)This Defendant has filed contemporaneously

with this Court a Motion to Determine
Sufficiency that aforementioned original note
and original mortgage has been filed according
to the Plaintiffs claim.
D)Until this Court determines the sufficiency of
Plaintiffs production of such note and mortgage as
original, this Defendant asserts that the Plaintiffs

legal interest in the mortgage is still at issue and

thereby Plaintiffs legal standing in this matter is
still at issue.

E) Until such Motion to Determine Sufficiency can be

adjudicated by this Court, this Defendant pleads
that granting Plaintiffs Motion for Summary
Judgment is not appropriate and prays that
Plaintiffs Motion for Summary Judgment is denied
by this Court

F) Further, this Defendant asserts that the Plaintiff

lacks standing to sue this Defendant as it was not
a party to the mortgage contract attached to the
Complaint.

G) There is no document attached to the Complaint

that evidences the Plaintiffs relationship to the
original lender.
H)The inability to attach the documentation
evidencing the Plaintiffs right to bring this action
violates Florida Rules of Civil Procedure and is not
in compliance with Florida Rules of Civil Procedure
1.130, evidencing any assignment of right to the
Plaintiff to file this action.
I) This Defendant asserts that previous case law
supports this supposition.
i)

The prosecution of a foreclosure action is by

the owner and holder of the mortgage and
the note. Plaintiff is not entitled to maintain
this action in which it seeks to foreclose on a
note which Plaintiff does not own. (Gross,
316 So.2d 596 (Fla. 4th DCA 1975)).

ii)

Standing requires that the party prosecuting

the action have a sufficient stake in the
outcome and that the party bring the claim
be recognized in the law as being the real
party in interest entitled to bring the claim.

iii)

This entitlement to prosecute a claim 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).

J) As such, the Plaintiff fails to maintain any of the

criterias of Florida Rules of Civil Procedure
1.210(a) which provides, in pertinent part, 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.
K) Accordingly, this Defendant respectfully states
that a Summary Judgment would not be
appropriate as the Plaintiff has failed to maintain
its burden to be entitled to a Summary Judgment
based on aforementioned statute.

L) Further, as the Plaintiff lacked legal standing to

institute this mortgage foreclosure action, ab
initio, this issue of material fact warrants the
denial of Plaintiffs Motion for Summary Judgment.

M)
In addition, this Defendant, in its answer of
this complaint provided the following, The
mortgage note contains numerous violations with
regard to the Truth in Lending Act of 1968.

N) Under the Federal Rules of Civil Procedures,

i)

It may be sufficient to plead that the TRUTH

IN LENDING ACT has been violated. (Fed.R.
Civ. P. 8(a)).

ii)

Specific violations do not necessarily

have to be alleged with particularity,
until time as appropriate to the actual
defense
of
the
case.
(Brown
v.
Mortgagestar, 194 F. Supp. 2d 473 (S.D. W.
Va. 2002)).

iii)

Pro se need not specify specific statute

or regulations that entitle him to relief.
(Brown v. Mortgagestar, 194 F. Supp. 2d 473
(S.D. W. Va. 2002)).

iv)

Respectfully,
the
Court
will
examine
complaint for relief on any possible legal
theory (Hill v. GFC Loan Co., 2000 U.S. Dist.
Lexis 4345 (N.D. Ill. Feb. 15, 2000)).

O)An overview of TRUTH IN LENDING ACT is by

design to remedy fraudulent practices in the
disclosure of the cost of consumer credit, assure
meaningful disclosure of credit terms, ease credit
shopping, and balance the lending scales weighted
in favor of lenders.

P) TRUTH IN LENDING ACT creates several

substantive consumer rights and gives consumers
actual damages for Truth In Lending errors in
connection with disclosure of any information.
Q) TRUTH IN LENDING ACT allows a consumer to
rescind home secured non-purchase credit for any
reason within three business days from
consummation and if a creditor gives inaccurate
required information, TRUTH IN LENDING ACT
extends the rescission right for three days from
the date the creditor delivers the accurate
material.
R) Creditors must strictly comply with TRUTH IN
LENDING ACT. A single violation of TRUTH IN
LENDING ACT gives rise to full liability for
statutory damages, which include actual damages
incurred by the debtor plus a civil penalty. (15
U.S.C.A. 1640(a)(1)(2)(A)(i)).
S) Moreover, a violation may permit a borrower to
rescind a loan transaction, INCLUDING a
rescission of the security interest the creditor has
in the borrower's principal dwelling. (15 U.S.C.A.
1635(a)).
T) As violations of the TRUTH IN LENDING ACT are
determined on an objective standard, based on
the representations in the relevant disclosure
documents, with no necessity to establish the
subjective misunderstanding or reliance of this
Defendant, and as this Defendant is in the
process of identifying TRUTH IN LENDING ACT
violations in the mortgage contained therein, this
Defendant pleads that this granting Plaintiffs
Summary Judgment is not appropriate.

U) As such, as TRUTH IN LENDING ACT violations

are identified throughout the process of Discovery
and proven to this Courts satisfaction, this
Defendant respectfully submits that a Summary
Judgment would prevent due process and
therefore should not be granted as motioned by
the Plaintiff.
3. As Plaintiff has filed a Motion for Summary Judgment
to this Court against this Defendant, Andy Klaus, this
Defendant asserts that the Plaintiff has failed to
sustain its burden for Discovery in this case.

A) Specifically, the Plaintiff has failed to sustain its

burden for production, for admissions, and to fully
answer interrogatories as requested by this
Defendant.

B) On or about March 25, 2011, this Defendant

submitted to the Plaintiff requests for Production.

i) Pursuant to Florida Rules of Civil Procedure

, Any party represented by an attorney is
subject to discovery pursuant to Florida Rules
of Civil Procedure 1.28-1.380 directed at said
party, without order of court. If a party
proceeding without an attorney directs
discovery to a party represented by an
attorney, the represented party may also use
discovery pursuant to the above-mentioned
rules without leave of court.

ii) On or about April 19, 2011, the Plaintiff

has provided incomplete articles of
production or objections to this Defendants

production requests filed on aforementioned

date of March 25, 2011.

iii) On or about May 24, 2011, this Defendant

provided a response to Plaintiffs incomplete
articles of production and objections and
expressly stated and outlined Plaintiffs
insufficiency of Production.
C) On or about March 25, 2011, this Defendant
submitted to the Plaintiff requests for Admissions.

i) Pursuant to Florida Rules of Civil Procedure

, Any party represented by an attorney is
subject to discovery pursuant to Florida Rules
of Civil Procedure 1.28-1.380 directed at said
party, without order of court. If a party
proceeding without an attorney directs
discovery to a party represented by an
attorney, the represented party may also use
discovery pursuant to the above-mentioned
rules without leave of court.

ii) Florida Rules for Civil Procedures Rule

1.340 (a) allows the party who has
requested the admissions move to
determine the sufficiency of the answers or
objections.

iii) On or about May 25, 2011, this Defendant

moved this Court to determine the sufficiency
of the answers and objections provided by
the Plaintiff.

iv) As of the date of this filing, the Plaintiff

has NOT provided complete answers and has
provided objections to this Defendants
request for admissions.

v) Further, as of the date of the filing of this

Response, this Court has not determined the
sufficiency of Plaintiffs responses and
objections to this Defendants Requests for
Admissions.

D)On or about March 25, 2011, this Defendant

submitted to the Plaintiff requests for
Interrogatories.

i)

Pursuant to Florida Rules of Civil Procedure ,

Any party represented by an attorney is
subject to discovery pursuant to Florida Rules
of Civil Procedure 1.28-1.380 directed at said
party, without order of court. If a party
proceeding without an attorney directs
discovery to a party represented by an
attorney, the represented party may also use
discovery pursuant to the above-mentioned
rules without leave of court.

ii)

Florida Rules for Civil Procedures Rule 1.340

prescribes the required time period under
which Discovery must be responded to, 30
days after service. The court may allow a
shorter or longer time.

iii)

This Defendant has not received notification

from the Plaintiff, they object to Discovery.

iv)

On or about August 31, 2011, the Plaintiff

provided insufficient and incomplete answers
to this Defendants Request for
Interrogatories.

v)

The Plaintiff in its response either denied or

objected to critical questions designed to
provide answers for and evidence to the
support of this Defendants Answer filed on
March 25, 2011, of this above styled action.

vi)

On or about October 31, 2011, this

Defendant provided a response to Plaintiffs
incomplete answers to interrogatories and
objections and expressly stated and outlined
Plaintiffs insufficiency of Production.

E) As such and seen in aforementioned sequence of

events as documented in EXHIBIT A, an outline of
the Court docket in the above styled action, the
Plaintiff has not sufficiently answered this
Defendants REQUEST for Production, Admissions,
and Interrogatories.

F) Accordingly, this Defendant respectfully submits

that Plaintiffs Motion for Summary Judgment be
denied.

WHEREFORE, I, Andy Klaus, Defendant 1 in the above styled

action, pray that based upon the Plaintiffs failure to
demonstrate the absence of genuine issues of material fact
in this case, that based upon the Plaintiffs failure to sustain

its burden to be entitled to the entry of summary judgment,

that based upon the Plaintiffs failure to prove or show its
proper standing in this complaint, that based upon TRUTH IN
LENDING ACT violations in the execution of such instrument,
and that based upon the Plaintiffs failure to comply with this
Defendants Discovery requests, this Court hereby DENY
Plaintiffs Motion for Summary Judgment and motions this
Court to deny Plaintiffs pleading.

I certify that a copy of this RESPONSE and MOTION TO

DENY was mailed to Douglas Clark, Esquire, attorney for the
Plaintiff, located at 12425 28th Street North, Suite 200, Saint
Petersburg, Florida, 33716, by US MAIL on or before
Monday, January 23, 2012, at or before 5:00PM EST.

With respect to and for this Court,

Andy Klaus

SIGNATURE

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