IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY, FLORIDA DEUTSCHE BANK NATIONAL

TRUST COMPANY, AS TRUSTEE FOR THE REGISTERED HOLDERS OF IMPAC SECURED ASSETS CORP. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-2, Plaintiff, v. OSAGE GARDEN APARTMENTS, LLC, a California limited liability company, et al., Defendants. ______________________________________/ DEFENDANTS MOTION TO DISMISS COMPLAINT AND VERIFIED COMPLAINT FOR LACK OF STANDING AND SUBJECT MATTER JURISDICTION AND FOR FRAUD ON THE COURT Defendants, Osage Garden Apartments, LLC; Richard T. Smith; Asmita K. Devani; DACA, LLC; Bert Whitfield; Jauncie Whitfield; Michael S. Segal and Aileen V. Segal, as Trustees of the ASM Trust Dated 5-9-2003; Todd Silverstein; Kenneth McAlpine; Brenda McAlpine, and Tak Yokoiby (Defendants), by and through their undersigned counsel, move this Honorable Court to dismiss the Complaint filed in the instant matter for lack of standing and subject matter jurisdiction pursuant to Fla.R.Civ.P. 1.140, and in support states as follows: 1. This Court lacks subject matter jurisdiction to proceed. Subject matter jurisdiction has never been established on the record. The jurisdictional question can be raised at any time and can never be time-barred. DeClaire v. Yohanan, 453 So. 2d 375 (Fla. 1984). Plaintiffs, Deutsch Bank National Trust Company, as Trustee for the Registered Holders of IMPAC Secured Assets Corp. Mortgage Pass-Through Certificates Series 2006-2
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Case No.: 2009-CA-8947-WS

(Plaintiff), has not established its standing on the record, and Defendants contest both standing and subject matter jurisdiction. 2. The Court should dismiss this action pursuant to Rules 1.210(a) and 1.140(1) of the Florida Rules of Civil Procedure because: a. the record is clear from the exhibits submitted as evidence by Plaintiff that a party

other than Plaintiff is the true owner of the claim sued upon and that Plaintiff is not the real party in interest and is not shown to be authorized to maintain this foreclosure action; and b. The Amended Verified Complaint fails to support the allegation there has been a

valid assignment of and delivery of the original of the promissory note by IMPAC Commercial Corporation to Deutsch Bank National Trust Company, as Trustee for the Registered Holders of IMPAC Secured Assets Corp. Mortgage Pass-Through Certificates Series 2006-2. Unless Plaintiff can prove it had, Plaintiff cannot prove it was properly assigned the promissory note. See State Street Band and Trust Co. v. Lord, 851 So. 2d 790 (Fla. 4th DCA 2003); Slizyk v. Smilack, 825 So. 2d 428 (Fla. 4th DCA 2002). c. The verification of Amended Verified Complaint indicates the loan documents

may actually be in the possession of Cohen Financial, the servicer, in the State of Kansas. The Note is or may be in the possession of Cohen Financial, the servicer, rather than Plaintiff. There is no evidence other than heresay affidavit that Cohen Financial is holding the note for the benefit of Plaintiff, and it is abundantly clear the assignments attached to the original Verified Complaint and to the Amended Verified Complaint are invalid and are legal nullities. In the absence of credible evidence that Cohen Financial has authority to hold the Note for the account of Plaintiff and a valid chain of

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assignments from the original holder of the Note to Plaintiff, the Court should be unable to find that Plaintiff has standing to bring this action. 3. Rule 1.210(a) of the Florida Rules of Civil Procedure 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 In this action, Plaintiff meets none of these criteria. I. 4. Facts Plaintiff filed its original Verified Complaint and Notice of Lis Pendens in the above-

captioned foreclosure action against Defendants, dated September 18, 2009, and filed September 21, 2009. 5. Plaintiffs original Verified Complaint (emphasis added) revealed the following

allegation in Paragraph 11: On or about April 13, 2006, Original Lender executed and delivered to DEUTSCHE BANK that certain assignment of Mortgage (the Assignment of Mortgage), assigning all of its rights and interest therein to DEUTSCHE BANK. A true and correct copy of the Assignment of Mortgage is attached [to the Complaint] as Exhibit D. [Emphasis in original.] 6. The attached Exhibit D to Plaintiffs original Verified Complaint, sworn to by its

alleged servicer, which was purported to be an Assignment of Mortgage, revealed the Original Lender was an entity known as IMPAC Commercial Capital Corporation and not the separate entity IMPAC Secured Assets Corp. for whom Plaintiff alleged it was trustee. 7. The attached Exhibit D to Plaintiffs original Verified Complaint, sworn to by its

alleged servicer, also revealed that the purported Assignment of Mortgage did not deliver the Mortgage to Deutsche Bank. In fact, the name DEUTSCH BANK did not appear anywhere on
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the purported Assignment of Mortgage.

The purported Assignment of Mortgage did not

designate any assignee or a lender whatsoever. 8. Plaintiffs original Verified Complaint did not allege or otherwise provide any evidence

that the purported Assignment of Mortgage was duly recorded as required by Florida Statute 48.23(3). 9. Plaintiffs failure to establish standing on the original Verified Complaint renders this

action void in abnitio and Plaintiff may not cure standing by a filing subsequent amended complaint. If a plaintiff cannot establish standing, its claims must be dismissed for lack of subject matter jurisdiction. Central States Southeast & Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2d Cir. 2005)). Standing is

determined as of the time the complaint is filed. Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir. 2001), cert. denied, 535 U.S. 971 (2002). 10. Plaintiffs original Verified Complaint (emphasis added) reveals the following allegation

in Paragraph 12: On or about June 18, 2008, in order to further secure the indebtedness evidenced by the Note, the Guarantors individually executed and delivered to DEUTSCHE BANK a Guaranty (the Guaranty) guaranteeing payment to DEUTSCHE BANK of all the Borrowers indebtedness (as that term is defined in the Guaranty) and all other indebtedness of the Borrowers under the Loan Document. A true and correct copy of the Guaranty is attached hereto as Exhibit E. 11. The attached Exhibit E to Plaintiffs Verified Complaint revealed the Guarantee was

not executed in favor of DEUTSCH BANK, but, rather, was executed in favor of IMPAC Commercial Capital Corporation. DEUTSCH BANK was clearly not a party to the contract attached by Plaintiff to its Verified Complaint. Plaintiff failed to allege or to provide any

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evidence of any assignment of the Guaranty to DEUTSCH BANK or any other party in its Verified Complaint. 12. On February 17, 2010, Plaintiff served an Amended Verified Complaint with a different

assignment instrument appearing to add in information missing from the first already notarized assignment attached to the original Verified Complaint, demonstrating a clear fraud on the Court in an effort to cover up its original failures. One fraud attempted to be covered by a second worse fraud. The assignment: a. Purports to be executed in 2006 by Paul Cleary in front of a California notary, but

was not recorded until after Defendants Motion to Dismiss put Plaintiff on notice as to the utterly void assignments defects. b. Purports to be executed on behalf of IMPAC Commercial Capital Corporation

and not IMPAC Secured Assets Corp., for which Plaintiff purports to be trustee; c. d. e. Reflects no documentary stamp tax was paid until January 14, 2010; Reflects it was not recorded until January 14, 2010; Purports that on April 13, 2006, Paul Cleary, on behalf of IMPAC Commercial

Capital Corporation, in California, transferred a mortgage that was not recorded until April 18, 2006, with Mr. Cleary giving the OR Book and Page Number that would have been assigned on that future date by Pinellas County, Florida. The execution of the document is internally conflicting and a factual chronological impossibility. document is void on its face. f Purports to add an attesting signature of Linda Novack that was not on the The

original sworn-to documents filed with this Court. g. Also adds to the original sworn-to document filed with this Court an asterisk in

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the assignee section of the document purporting to reference a typed-in assignee Deutsche Bank National Trust Company as Trustee for the registered holder of Impac Secured Assets Corp Mortgage Pass-Through Certificates, Series 2006-2, it successor or assigns; h. A handwritten notation of Ruden McClosky, 111 N. Orange Ave. Ste 1750,

Orlando, FL 32801; i. and j. fails to comply with Florida Statutes 692.01 in that it fails to bear any corporate Purports to be recorded in Pascoe County, a non-existent political subdivision;

seal indicating corporate approval or authority to enter into the instrument. 13. The Verified Complaint and its attachments fail to deraign chain of title from IMPAC

Commercial Capital Corp. to Deutsche Bank National Trust Company, as Trustee for the Registered Holders of IMPAC Secured Assets Corp. Mortgage Pass-Through Certificates. 14. 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). When exhibits are inconsistent with a plaintiffs allegations of material fact as to who the real party in interest is, such allegations cancel each other out. II. 15. The Assignment of Mortgage is Void as a Matter of Law The purported Assignment of Mortgage is so factually and chronologically impossible

and conflicting as to render the instrument a nullity and legally void. Moreover, the purported

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assignment calls into question its authenticity to such a serious degree that the Court should find as a matter of law that no reasonable person could afford the document any weight or credibility whatsoever. 16. For the foregoing reasons, the Assignment of Mortgage instrument fails as a matter of

law for vagueness and want of expression of any meeting of the minds of alleged parties to the conveyance and is thus void as to be non-existent. III. 17. Standing and Subject Matter Jurisdiction Plaintiff has the burden of establishing standing. Loren v. Blue Cross & Blue Shield of

Michigan, No. 06-2090, 2007 WL 2726704 at *7 (6th Cir. Sept. 20, 2007). If a plaintiff cannot establish standing, its claims must be dismissed for lack of subject matter jurisdiction. Id. (citing Central States Southeast & Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2d Cir. 2005)). 18. Standing is determined as of the time the complaint is filed, not after the complaint is

filed. Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir. 2001), cert. denied, 535 U.S. 971 (2002). While a determination of standing is generally based upon allegations in the complaint, when standing is questioned, courts may consider evidence thereof. See Id. at 523-30; Senter v. General Motors, 532 F.2d 511 (6th Cir. 1976), cert denied, 429 U.S. 870 (1976). 19. The minimum requirements for standing under Article III of the U.S. Constitution are as

follows: (1) proof of injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) causation; and (3) redressability. In re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (N.D. Ohio 2007). This requires a plaintiff to show that they have personally suffered, or are imminently about to suffer, some actual injury as a result of the illegal conduct of

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the defendant and that the court can remedy the injury. 20. hen dealing with a foreclosure case, then, the plaintiff must be able to demonstrate that

they were the actual owner of the loans as of the date the foreclosure action is filed. See In re Foreclosure Cases, 521 F. Supp.2d at 650. As held in In re Foreclosure Actions, the appropriate documentation required to effectuate an equitable assignment and having legal standing to bring a foreclosure action must be thorough assignment documents executed before the action was commenced. Id. 21. Where a plaintiff can not demonstrate that it owns a mortgage or has any interest in the

mortgage at the time of filing a foreclosure action, the case must be dismissed for failing to comply with the statutory requirements of standing. See Davenport v. HSBC Bank, 275

Mich.App. 344, 347-348, 739 N.W. 2d 383, 385 (Mich.App., 2007) (Where the defendant did not own the mortgage or an interest in the mortgage at the time in which they commenced foreclosure proceedings). 22. In Florida, the prosecution of a foreclosure action is by the owner and holder of the

mortgage and the note at the time of filing a complaint. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975). Plaintiff is not entitled to maintain this action in which it seeks to foreclose on a mortgage and note which Plaintiff did not own and hold at the time of filing its Complaint. Id.. IV. 23. Plaintiff Does Not Have Standing to Bring This Lawsuit Plaintiff in this case did not have standing at the time this Complaint was filed, and its

claims must be dismissed for lack of standing and subject matter jurisdiction. 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

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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). 24. Plaintiff lacks standing in this case because it has not shown that it will have personally

suffered, or is imminently about to suffer, some actual injury as a result of the illegal conduct of the Defendants in such a way as to enable this Court to remedy such injury. 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). 25. Plaintiff has not met its burden to demonstrate, by its own Exhibits to its own Complaint,

that DEUTSCH BANK has any interest at all in the subject Mortgage or at the time this action was filed. Mortgage. 26. Plaintiff has not met its burden to demonstrate that it was or is the actual legal or In fact, Deutsch Bank is not named anywhere on the purported Assignment of

equitable owner of the Mortgage which is the subject of this foreclosure action, and thus Plaintiff does not have standing to bring this lawsuit. 27. Plaintiff has not met its burden to demonstrate, by its own Exhibits to its own Complaint,

that Deutsch Bank has any interest at all in the subject loan and Guaranty Agreement. DEUTSCH BANK is not a party to the Guaranty Agreement, and Plaintiffs have not alleged that any assignment from IMPAC Commercial Capital Corp. took place. 28. Based on the record, this Court should conclude Plaintiff lacks standing to prosecute this

foreclosure action. The purported Assignment of the Mortgage DOES NOT assign the mortgage to Plaintiff, DEUTSCH BANK. The purported Assignment of Mortgage is void as a matter of

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law for failing to name an assignee and for a laundry list of other reasons as enumerated herein, including the fraud on the Court for altering a notarized alleged instrument and presenting them to the Court as the basis for Plaintiffs claim. Moreover, DEUTSCH BANK is not a party to the Guaranty Agreement, and Plaintiff has not alleged any assignment of the Guaranty took place. Because Plaintiff has demonstrated no ownership of the subject debt and no personal, imminent injury which this Court can remedy, this Complaint should be dismissed for lack of standing and subject matter jurisdiction and be dismissed with prejudice. WHEREFORE, Defendants respectfully requests that: 1. Defendants Motion to Dismiss Verified for Lack of Standing and Subject Matter Jurisdiction and for Fraud on the Court be GRANTED; 2. Plaintiffs Complaint and Verified Complaint be DISMISSED with prejudice, and

grant any and all other relief this Court deems appropriate, including but not limited to attorney fees. CERTIFICATE OF SERVICE I certify a copy of the foregoing was sent via U.S. mail to the following: Cal State Investment Ltd. Partnership Silvia Cardona C/O Nevada Corporate Headquarters, Inc., as R/A 525 Main Street 101 Convention Center Drive, Suite 700 El Segundo, CA 90245 Las Vegas, NV 89109 Martha Hunt 18389 Wayne Road Odessa, FL 33556 W. Scott Callahan, Esq. & Suzanne Liotta, Esq. Ruden, McClosky P.O. Box 4950 Orlando, FL 32802 Fax 407-244-8112

on this ____ day of ________ 20___.

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