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IN THE COURT OF APPEALS OF THE STATE OF FLORIDA, FOURTH DISTRICT

OSBELIA LAZARDI and ANDRES LAZARDI,

Defendants/Appellants,

v.

Case No. 4D11-3996 LT Case No. 10-CA-24433(11)

WACHOVIA MORTGAGE CORPORATION,

Plaintiff/Appellee.

/

AMENDED INITIAL BRIEF

Submitted by:

Kenneth Eric Trent, Esq. Attorney for Appellants 831 East Oakland Park Blvd. Fort Lauderdale, FL 33334 (954)567-5877; (954)567-5872 [fax] Ken@ForeclosureDestroyer.com Fla. Bar No. 693601

Table of Contents

Preface

2

Introduction

3

Table of Citations

3-6

Statement of the Case and Facts

6-9

Summary of Argument

9-10

Argument

10-26

Conclusion

27

Certificate of Service

28

Preface

The parties to this appeal are, first, the Appellants, Osbelia Lazardi and Andres

Lazardi. They are husband and wife and shall hereinafter be referred to collectively

as “Defendants.” Defendant Osbelia Lazardi is hereinafter referred to as “Osbelia.”

The

second

party

is

the

Appellee,

Wachovia

Mortgage

Corporation,

(“Plaintiff”).

It obtained a summary final judgment of foreclosure against the

Defendants and their homestead real property on September 28, 2011. This “Final

Judgment” is the subject of this appeal.

2

Introduction

This case presents multiple issues of great public importance. Defendants

and their undersigned attorney believe, and respectfully submit, that this Court’s

decisionmaking process should take into consideration the extraordinary times in

which we as Americans find ourselves. The questions raised in this case, and in the

numerous authorities cited in this Brief, will have a great impact on the parties before

the courts both now and for many years into the uncertain future before us. While in

usual times, the decisions herein attacked and critiqued, including the one below, may

be in certain respects defensible, in light of current affairs they are simply unjust. The

matters presented implicate heavily the most fundamental of all judicial precepts:

jurisdiction.

It is the abiding hope of Defendants and their advocate that this Court will have

the wisdom to reverse the decision of the court below. While this hope is of course

motivated in good part by their own interests, Defendants also urge reversal for the

collective Good of the People of the United States of America.

Luckily the precedents are with us.

Table of Citations

Fla. R. Civ. P. 1.110

23

Fla. R. Civ. P. 1.140(b)

24

3

Fla. R. Civ. P. 1.510

15,

22, 26

Fla. R. Civ. P. 1.540(b)(3)

Fla. R. Civ. P. 1.540(b)(4)

84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994)

BAC Funding Consortium Inc ISAOA/ATIMA v. Jean Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010)

Beaulieu v. JP Morgan Chase Bank, N.A., case no. 4D10-5288 (Fla. 4 DCA, Jan. 11, 2012)

th

21

22

24

17

21,

22, 24

Beaumont v. Bank of New York Mellon, case no. 5D10-3471

(Fla. 5

th

DCA, February 17, 2012)

Becerra and Horizon Corp. v. Equity Imports, Inc.,

551 So. 2d 486 (Fla. 3d DCA 1989)

Carapezza v. Pate, 143 So. 2d 346 (Fla. 3d DCA 1962)

Dep’t of Revenue v. Daystar Farms, Inc.,

803 So. 2d 892, 896 (Fla. 5

th

DCA 2002)

Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994)

Dreggors v. Wausau Ins. Co., 995 So. 2d 547(Fla. 5

th

DCA 2008)

Edwards v. Simon, 961 So. 2d 973 (Fla. 4

th

DCA 2007)

Garcia v. Stewart, 906 So. 2d 1117 (Fla. 4

th

DCA 2005)

Gee v. U.S Bank Nat’l Ass’n as Trustee, case no. 5D10-1687 (Fla. 5 DCA, September 30, 2011)

th

25

23

16

25

21

15

15

21

15,

16, 18

Global Aerospace, Inc. v. Platinum Jet Management, LLC,

4

2011 WL 248543 (S.D. Fla. 2011)

25

Goncharuk v. HSBC Mortgage Services, Inc., 62 So. 3d 680 (Fla. 2d DCA 2011)

Henderson v. Reyes, 702 So. 2d 616 (Fla. 3d DCA 1997)

Hernandez v. Coopervision, Inc., 661 So. 2d 33 (Fla. 2d DCA 1995)

Herskowitz v. Reid, 187 Fed. App’x 911 (11

th

Cir. 2006)

Howell v. Ed Bebb, Inc., 35 So. 3d 167 (Fla. 2d DCA 2010)

In re: Harrold, 296 B.R. 868 (U.S. Bankr. Ct., M.D. Fla. 2003)

Klos v. Paulson, 2009 WL 205622 (11

th

Cir. 2009)

Lizio v. McCullom, 36 So. 3d 927 (Fla. 4

th

DCA 2010)

Lovett v. Lovett, 112 So. 768 (Fla. 1927)

Madison v. Haynes, 220 So. 2d 44 (Fla. 4

th

DCA 1969)

McLean v. JP Morgan Chase Bank Nat’l Ass’n,

case no. 4D10-3429 (Fla. 4

th

DCA Dec. 14, 2011)

Miles v. Robinson, 803 So. 2d 864 (Fla. 4

th

DCA 2002)

Mishoe v. Mishoe, 591 So. 2d 1100, 1101 (Fla. 1

st

DCA 1992)

Moynet v. Courtois, 8 So. 3d 377 (Fla. 3d DCA 2009)

Phadael v. Deutsche Bank Trust Company Americas as Trustee for RALI 2007QS9, case no. 4D11-905 (Fla. 4 DCA, February 8, 2011)

th

5

17

20

24

25

17

24

24

15

21

17

 

15,

20

17

25

23

21,

22, 24

Philogene v. ABN AMRO Mortgage Group, Inc.,

948 So. 2d 45 (Fla. 4

th

DCA 2006)

Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932

(Fla. 4

th

DCA 2010)

Sandoro v. HSBC Bank, USA Nat’l Ass’n, 55 So. 3d 730 (Fla. 2d DCA 2011)

Southeast Land Developers, Inc. v. All Florida Site and Utilities, Inc.28 So. 3d 166, 168 (Fla. 1

st

DCA 2010)

Stalley v. Orlando Reg’l Healthcare Systems, Inc.,

524 F.3d 1229 (11

th

Cir. 2008)

State ex rel. BF Goodrich Co. v. Trammell,

192 So. 175 (Fla. 1939)

State of Florida, Dep’t of Health and Rehabilitative Services

v. Schreiber, 561 So. 2d 1236, 1241 (Fla. 4

th

DCA 1990)

Taylor v. Siebert, 615 So. 2d 800 (Fla. 1

st

DCA 1993)

The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006)

Venture Holdings & Acquisitions Group, LLC v. AIM Funding Group, LLC, case no.’s 4D10-1848,

4D10-832, 4D10-1159 (Fla. 4

th

DCA, Nov. 23, 2011)

Verizzo v. Bank of N.Y., 28 So. 3d 976 (Fla 2d DCA 2010)

16

16

17

23-24

25

24

24

24

15

23, 27

15, 16

Volusia County. v. Aberdeen at Ormond Beach, L.P.,

760 So. 2d 126 (Fla. 2000)

15

Statement of the Case and Facts

On or about July 31, 2007,

Defendant Osbelia Lazardi executed an Initial

6

Interest Adjustable Rate Note, (Rec., p. 4-7), and both she and her husband, Andres

Lazardi, executed an accompanying Mortgage. (7-31). The “Lender” named in these

loan documents was and is “AMNET MORTGAGE, INC., DBA AMERICAN

MORTGAGE NETWORK OF FLORIDA.” (4, 8). Copies of these loan documents,

which did not include any endorsements or assignments, were attached to the original

Complaint which Plaintiff filed on June 10, 2010.

(1-31).

This Complaint was

ostensibly verified by the filing of a separate “Verification,”signed by Jose Pinto as

Vice President of an undefined entity. (32). In paragraph 4 of the Complaint, Plaintiff

alleged the following in an effort to establish standing: “Mortgagee shown on the

Mortgage attached as an exhibit is the original Mortgagee. Plaintiff is now entitled to

enforce Mortgage and Mortgage Note pursuant to Florida Statutes § 673.3011.” (2).

On October 28, 2010, Plaintiff filed its Amended Complaint, (35-70), which

added a count to re-establish lost note. (37-38). The Amended Complaint was not

verified. Also on October 28, 2010, Plaintiff filed a “Notice of Filing” and therein

made reference to having filed the “attached” “Affidavit as to Lost or Misplaced

Original Note,” although the attachments were incomplete. (71-73; see also Appendix

1).

The Notice of Filing filing appears in the Index as “NOTICE OF FILING

AFFIDAVIT/ COPY OF NOTE.” The Notice of Filing states that an affidavit of lost

note, a copy of the original Note, and a service list are attached. As to the original

7

Notice of Filing in the Record (71-73) no Note or service list are included. The copy

in Defendants’ possession consists of only the Notice and the service list, and omits the

affidavit. (Appendix 1).

On December 3, 2010 a clerk’s default was entered against the Defendants. (86).

On May 10, 2011, Plaintiff filed an Affidavit of Amounts Due and Owing (87-105) and

on June 1, 2011 it filed its motion for summary judgment (106-131), wherein it made

no reference whatsoever to the default. Id.

On September 7, 2011, Defendant Osbelia Lazardi, pro se, filed her “Confirmed

Answer, Affirmative Defenses, Motion to Dismiss Foreclosure Action With Prejudice

Count I, II [sic] and Demand for Jury Trial,” (134-217), which shall hereinafter be

referred to as “the Answer.”

th

On this same date, September 7 , Osbelia filed her

Motion to Strike Affidavit of Amounts Due and Owing (222-230), her “Motion for

Production,” (244-246), and her “Motion to Dismiss Foreclosure Action With Prejudice

,” (233-243) (“the Motion to Dismiss.”)

On September 20, 2011, Plaintiff filed its Motion to Strike Osbelia’s Affirmative

Defenses. (247-249). Although it is absent from the record index, on September 21,

2011, Plaintiff filed and served a notice setting the Motion to Dismiss for hearing to

occur on November 2, 2011. (Appendix 2). On September 28, 2011, Plaintiff filed its

Memorandum of Law in Support of Motion for Final Summary Judgment (250-256).

8

Final Summary Judgment of Mortgage Foreclosure, granting foreclosure and re-

establishing the lost Note, was entered on that same date (260-265), and the property

was sold to Plaintiff at foreclosure sale occurring on November 2, 2011.

There is no sign in the record that the following motions were ever heard or ruled

upon by the trial court: (1) the Motion to Dismiss; (2) the Motion to Strike Affidavit

of Amounts Due and Owing; and (3) Plaintiff’s Motion to Strike Affirmative Defenses.

There is also no evidence in the record that Plaintiff ever responded to the (incorrectly

named) request for production.

Summary of Argument

The trial court erred in granting summary judgment, in that Plaintiff failed to

establish that it had standing to foreclose, either as an owner or holder of the Note. The

Amended Complaint failed to state a claim. Plaintiff was not the original payee or lender

named in the Note. The record reveals no endorsement of the Note, no assignment of

the Mortgage, and no affidavit of ownership. Because Plaintiff claimed that the Note was

lost, it could not possibly have held the Note at the time the Complaint was filed.

Because the Note was not properly re-established, the Final Judgment forecloses a

mortgage which has no debt associated with it.

corresponding debt is clear error.

Foreclosing a mortgage without a

Summary judgment should not have been granted due to the fact that discovery

9

was outstanding.

Plaintiff failed to meet its prima facie burden to demonstrate standing, and for this

reason summary judgment was not proper and the judgment which was entered was void

and subject to attack at any time. Under the circumstances, the fact that a default was

entered against Defendants does not preclude this Court from considering their

arguments on the merits, especially as to standing and related jurisdictional questions.

Not only should the Final Judgment be reversed, the case should be dismissed for

a total absence of jurisdiction or standing.

Argument

It is unquestionably the case based on a panoply of reports that in recent years,

from sea to shining sea, foreclosure plaintiffs have been filing false sworn documents by

the tens of thousands, primarily on the issue of standing. These documents purport to

establish that these foreclosure plaintiffs have an interest in, and therefore have a right

to enforce and foreclose, mortgages and notes originated by entities other than

themselves.

Consider, for example, the written “Statement of the Hon. Arthur M.

Schack, New York State Supreme Court[:] ‘Failure to Recover: the State of Housing

Markets, Mortgage Servicing Practices, and Foreclosures’[;] Hearing [of] March 19,

2012[;] The United States House of Representatives Committee on Oversight and

10

1

Governmental Reform[,]” :

In 2007, before the recession, I observed the bursting of the housing bubble and the growth in foreclosure filings. In Supreme Court, Kings County, we went from about 3,000 to 3,500 foreclosure filings per year to more 7,000 foreclosure filings per year.

New York is a judicial foreclosure state and the power to order a judgment of foreclosure is vested in the New York State Supreme Court, which, despite its lofty title, is the Court of general jurisdiction in this state and equivalent to Superior Court or Circuit Court in other states. The Court of Appeals is the highest court in New York. There are more than 300 Supreme Court Justices in New York State, allocated by population to each county. Since Kings County has about 15% of the New York State’s population, it has about 15% of the Supreme Court Justices.

My experience dealing with residential foreclosures has given me a unique perspective on what is happening with the housing market. While I will not discuss any specific cases, lenders or homeowners, I have observed many foreclosure problems, including, but not limited to: shoddy paperwork by lenders and/or mortgage servicers; determining the actual owners of mortgages and notes and the disproportionate impact of foreclosures upon minorities and neighborhoods that have predominant minority population.

As a judge I am neutral. My role is to apply the law equally to all parties, on a level playing field. For a lender to receive a judgment of foreclosure, like any other type of judgment, due process of law must be followed. When taking office, I took an oath to uphold the constitution, which, as we know, states in the XIVth Amendment ‘nor any State shall deprive any

person of

within its jurisdiction the equal protection of the laws.’ The Honorable John Leventhal of the New York Appellate Division, Second Department, last June, in his decision for a unanimous court, in Bank of New York v

property, without due process of law nor deny to any person

1 Available at http://stopforeclosurefraud.com/2012/03/19/ testimony-of-hon-arthur-m-schack-before-the-us-house-of-rep-committee-on-oversight-and-gove

rnment-reform/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Forecl

osureFraudByDinsfla+%28FORECLOSURE+FRAUD+|+by+DinSFLA%29&utm_content=Yah

oo!+Mail

11

Silverberg, 86 AD3d 274, 283, holding that an assignee of a lender who was never the actual holder or the assignee of the underlying note lacked standing to commence a foreclosure action, stated that ‘the law must not must not yield to expediency and the convenience of lending institutions. Proper procedures must be followed to ensure the reliability of the chain of ownership to secure the dependable transfer of property, and the assure the enforcement of the rules that govern real property.’

For a Plaintiff to receive a judgment of foreclosure it must demonstrate three things to the Court: (1) the existence of a mortgage and note; (2) plaintiff’s ownership of the mortgage and note; and (3) defendant’s default. This might sound relatively simple, but in this age of mortgage securitization and numerous assignments of mortgages and notes, it is not easy in many cases to demonstrate plaintiff’s ownership of the mortgage and note. Further, the plaintiff must demonstrate standing, that it or a predecessor in interest owned the mortgage and note when the foreclosure case commenced.

Judges, with the proliferation of mortgage securitization and assignments of mortgages and notes, are confronted in many instances to examine a lengthy chain of title to determine how the purported plaintiffs secured ownership of the mortgages and notes that they sue upon I have seen a plethora of cases with: defective assignments of mortgages and notes by “robosigners.” Robosigners are individuals who sign thousands of mortgage documents and wear numerous corporate hats. Further, I continue to see conflicts of interests, in which a robosigner might assign a mortgage and note as an officer of assignee entity B. Additionally, I have observed:

defective notarials of assignments and affidavits; missing powers of attorney or defective powers of attorney to mortgage servicers who submit affidavits on behalf of alleged plaintiffs; retroactive assignments of mortgages and notes to attempt to legitimatize foreclosures that are commenced prior to the plaintiff owning a mortgage and note; and, the failure to produce pooling and servicing agreements that detail the powers allegedly given to mortgage servicers.

I have had foreclosure cases in which in I have held conferences with bank

12

lawyers and defendants attempting to achieve a modification and settlement. When a change in interests rates or mortgage length was proposed, bank lawyers informed me that they had to check on the modification terms with “the investor,” the actual owner of the mortgage and note, which is part of a securitization. This piqued my curiosity and I inquired who is “the investor?” Too many times I would receive the bank lawyer’s puzzled response, “I don’t know.”

Too many times this lack of knowledge of the actual ownership is caused by Mortgage Electronic Registrations Systems, Inc. (MERS). Probably, more than half of the mortgages in the country are recorded by MERS, as the nominee of the lender. MERS in many cases assigned the mortgage and note many times within the MERS system, but did not record the assignments with the local recording authority. Thus, it cannot be determined who owns the mortgage and note. Therefore, the MERS system lends itself to cases of fraud with respect to home ownership, because, in New York State, for mortgages and assignments to be enforceable they do not have to be recorded. Plaintiffs in New York only have to prove that they possessed the mortgage and note when the foreclosure action commenced.

MERS, created in the early 1990's, has cost localities, usually counties several billion dollars in unpaid recording fees. To paraphrase the late Senator Everett Dirksen of Illinois, who allegedly said something to the effect of ‘a billion here, a billion there, and pretty soon you’re talking about real money,’ fifty dollars in recording fees here, fifty dollars in recording fees there, and pretty soon you’re talking about real money for counties and localities.

[

.

.

.

]

Also, we have in New York State a logjam in moving forward foreclosures. In October 2010, to address the abuses of robosigning, the New York court system, by administrative order, required an affirmation in foreclosures by plaintiff’s counsel that counsel communicated with a named representative of the plaintiff, who informed counsel that he or she personally reviewed plaintiff’s documents and records for factual accuracy and confirmed the factual accuracy of the allegations set forth in the complaint, and any supporting affidavits or affirmations, as well as the accuracy of the

13

notarizations contained in the supporting documents. Then, plaintiff’s counsel, based upon counsel’s communication with plaintiff’s representative, must inspect the documents and affirm under the penalty of perjury that all the papers filed with the Court contain no false statements of fact or law.

In announcing this affirmation requirement, New York’s Chief Judge Jonathan Lippman, in his October 20, 2010 press release stated, ‘we cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs- such as family home- during this period of economic crisis.’

[

.

.

.

]

(Emphases added).

In this Florida case, the Defendants suffered exactly what Judge Schack described:

a “deeply flawed process.” The Defendants’ Mortgage and Note name a non-party,

Amnet Mortgage, Inc. d/b/a American Mortgage Network of Florida, as the Lender. (37-

70). The Note contains no endorsement. The affidavit attached to the original Notice of

Filing, which was not served upon Defendants, attests to the fact that the Note “has not

been satisfied, pledged, assigned or hypothecated.” (71-73).

2 There is no assignment of

the Mortgage or of the Note in the record. Similarly, the record is devoid of any affidavit

attesting to Plaintiff owning or holding the loan. Plaintiff fell far short of satisfying the

2 On March 27, 2012, the undersigned obtained a copy of the version of the Notice of Filing, which includes an affidavit but no service list or Note, from the clerk of the lower court.

14

summary judgment standard.

To obtain summary judgment, the moving party must establish that there is no

material fact in dispute, and that it is entitled to judgment as a matter of law. Fla. R. Civ.

P. 1.510. “When reviewing a final summary judgment, an appellate court must examine

the record in the light most favorable to the non-moving party.” McLean v. JP Morgan

Chase Bank Nat’l Ass’n, case no. 4D10-3429 (Fla. 4

th

DCA, Dec. 14, 2011).

The

standard of review is de novo. As stated in the case of Gee v. U.S. Bank Nat’l Ass’n as

Trustee, case no. 5D10-1687 (Fla. 5

th

DCA, September 30, 2011):

This Court reviews an order granting summary judgment de novo. See The Fla.

Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006).

appropriate only ‘if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.’ Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The court may consider ‘affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence’ on which the parties rely.’ Fla. R. Civ. P.

Summary judgment is

1.510[c]. But in doing so, the court must draw ‘every possible inference’ in favor of the non-moving party. Dreggors v. Wausau Ins. Co., 995 So. 2d 547, 549 (Fla.

5

th

DCA 2008); Edwards v. Simon, 961 So. 2d 973, 974 (Fla. 4

th

DCA 2007).

To establish the right to foreclose, a plaintiff bears the burden of proving that it

either owns or holds the note and mortgage in question. In this instance, Plaintiff has

failed to clear this hurdle. “The party seeking foreclosure must present evidence that it

owns and holds the note and mortgage in question in order to proceed with a foreclosure

action.” Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4

15

th

DCA 2010) citing Verizzo v.

Bank of N.Y., 28 So. 3d 976 (Fla. 2d DCA 2010) and Philogene

v. ABN AMRO

Mortgage Group, Inc., 948 So. 2d 45 (Fla. 4

th

DCA 2006). Where a defendant facing

foreclosure denies that the plaintiff has an interest in the mortgage, “ownership

bec[omes] an issue that

plaintiff[] [is] required to prove.” Gee, supra, citing Lizio,

supra, and Carapezza v. Pate, 143 So. 2d 346 (Fla. 3d DCA 1962).

“If the note does not name the plaintiff as the payee, the note must bear an

endorsement in favor of the plaintiff or a blank endorsement.” Gee, supra, citing Riggs

th

v. Aurora Loan Services, LLC, 36 So. 3d 932, 933 (Fla. 4 DCA 2010) (emphasis added).

“Alternatively, the plaintiff may submit evidence of an assignment from the payee to the

plaintiff or an affidavit of ownership to prove its status

.” Gee, supra, citing, inter

alia, Verizzo v. Bank of N.Y., 28 So. 3d 976 (Fla. 2d DCA 2010).

As more specifically delineated above, Osbelia filed her Answer, containing

affirmative defenses, after the Plaintiff filed its Motion for Summary Judgment but

before the hearing thereupon. Disregarding, for the moment, the default, which will be

addressed in portions of this brief to follow, there are two different starting points for this

Court’s inquiry into the propriety of the summary judgment. Regardless of whether this

Court believes the trial court should have considered the Answer in ruling on summary

judgment, the result is the same.

First, “[I]f a plaintiff moves for summary judgment before the Defendant has filed

16

an answer, ‘the burden is upon the plaintiff to make it appear to a certainty that no

answer which the defendant might properly serve could present a genuine issue of fact.’”

Howell v. Ed Bebb, Inc., 35 So. 3d 167, 168 (Fla. 2d DCA 2010) citing BAC Funding

Consortium Inc ISAOA/ATIMA v. Jean Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010). As

stated in Goncharuk v. HSBC Mortgage Services, Inc., 62 So. 3d 680 (Fla. 2d DCA

2011):

As we explained in Sandoro [v. HSBC Bank, USA, Nat’l Ass’n, 55 So. 3d 730 (Fla. 2d DCA 2011)] and in several earlier cases, a plaintiff who moves for summary judgment before the defendant files an answer has a difficult burden.

When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff ‘must not only establish that no genuine

issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the

defendant were permitted to answer the complaint. [

]

The plaintiff must essentially anticipate the content of the defendant’s answer and establish that the record would have no genuine issue of material fact even if the answer were already on file.

Goncharuk, 62 So. 3d at 681-682 (citations omitted).

This is also the law in the Fourth District. See, e.g., Miles v. Robinson, 803 So.

2d 864 (Fla. 4

th

DCA 2002) wherein this Court cited Madison v. Haynes, 220 So. 2d 44

(Fla. 4

th

DCA 1969) for the proposition that, “When plaintiffs moved for summary

judgment before an answer was filed, they had the burden of conclusively establishing

17

that no answer which the defendants might properly serve could present a genuine issue

of material fact.” Miles, 803 So. 2d at 865.

It would be reasonable to conclude that, because the Answer was filed after the

motion for summary judgment, Plaintiff was required to meet this heavy burden. This is

because Plaintiff’s motion unquestionably did not preclude the possibility that no possible

answer could raise an issue of material fact.

Review of the Plaintiff’s motion for

summary judgment reveals only generic allegations. The same is true for the materials

Plaintiff submitted in support.

An undated “Verification” of “Jose Pinto” as “Vice

President” of one knows not what appears in the file, (32) and it does include a statement

that the “Plaintiff is entitled to enforce the loan.” This is the ultimate legal conclusion

which is the sole province of the court; it is not a factual averment based upon personal

knowledge which is properly included within an affidavit or similar document such as this

one. This statement of Pinto constitutes neither an endorsement nor an assignment as

required by Gee, supra, and the cases therein cited. Further, not the slightest capacity is

stated for Pinto, and therefore the statement lacks substance or foundation. The

“Verification” also conflicts with the exhibits to the Complaint, which: (1) causes the

Complaint to fail to state a cause of action; and, because the exhibits to the Complaint

demonstrate that Plaintiff is not “entitled to enforce the loan,” (2) creates an issue of fact

precluding summary judgment in favor of Plaintiff. This

18

As and for an alternative means of applying the law to the facts, this Court could

reasonably conclude that the trial court was required to consider the Answer in

determining whether to grant summary judgment. Based upon the fact that the Answer

was filed well prior to the hearing on the motion for summary judgment, the

determination of whether issues of material fact exist could reasonably have been made

based upon her actual pleading, rather than the more ephemeral “any possible answer.”

In this instance, one would take a look at the admittedly verbose and at times difficult to

understand pleading and discover that it actually does make certain relevant and coherent

legal arguments, based upon articulated record facts, including but not limited to attacks

upon standing and the authenticity of the signatures contained in the documentation upon

which Plaintiff purportedly based its claim of entitlement to summary judgment.

One such supporting item filed by Plaintiff is the affidavit of amounts due and

owing. (Rec., p. 87-105). It contains no averment as to Plaintiff either holding or owning

the Note or Mortgage. The closest the affidavit comes is in paragraph 5, wherein the

affiant ambiguously avers, “Plaintiff or its assigns, is owed the following sums of money

as of 7/12/2010

.” This was woefully inadequate to establish that Plaintiff was the

owner or holder of the Note and that it therefore had standing. Furthermore, Osbelia filed

a motion to strike this affidavit, (222-230) which was never ruled upon by the trial court.

It makes credible and documented assertions as to the lack of foundation and personal

19

knowledge. The Motion to Strike emphasizes, inter alia the fact that the affiant, Donohue,

is a “VP of Wells Fargo Bank as successor to Wells Fargo Home Mortgage,” neither of

which are the Plaintiff.

These facts implicate McLean v. JP Morgan Chase Bank Nat’l Ass’n, case no.

4D10-3429 (Fla. 4

th

DCA Dec. 14, 2011), wherein summary judgment for the foreclosure

plaintiff was reversed because the assignment post-dated the filing of the action, and

because the endorsement appeared during the course of litigation and was undated. The

affidavits, etc. in McLean came closer to establishing ownership/holdership than do

Plaintiff’s filings herein, and in that case, unlike this one, there was an assignment and

an endorsement. Just like McLean, the Lazardis are entitled to reversal of the summary

judgment.

In addition to her motions never being ruled upon by the trial court, Osbelia’s

request to produce, (244-246), filed September 7, 2011, was never responded to. The

request was reasonably calculated to lead to the discovery of admissible evidence, and it

could not, for this reason, simply be ignored. It is error to grant summary judgment when

a request to produce is outstanding. Henderson v. Reyes, 702 So. 2d 616 (Fla. 3d DCA

1997).

Plaintiff may argue that, because Defendants were defaulted: (1) they have no right

to make arguments on appeal; and/or (2) summary judgment was proper. There are two

20

recent cases which tend to support this idea, and which Defendants and their undersigned

counsel believe are incorrect, especially in light of current events as referenced in the

opening sections of this Brief. These cases are Phadael v. Deutsche Bank Trust Company

Americas as Trustee for RALI 2007QS9, case no. 4D11-905 (Fla. 4

th

DCA, February 8,

2011) and Beaulieu v. JP Morgan Chase Bank, N.A., case no. 4D10-5288 (Fla. 4

th

DCA,

Jan. 11, 2012). Motions for rehearing and rehearing en banc are, as of this writing on the

evening of March 21, 2012, pending in Phadael, and thus that case is not presently final.

Because the plaintiffs in foreclosures have engaged in tactics, such as pretend

document reviews, which are designed to hold cases in a suspended animation of sorts

until the one-year limitations period applicable to motions to vacate final judgments under

Fla. R. Civ. P. 1.540(b)(3) has expired, because servicers commonly pretend as if they are

modifying loans, thus lulling borrowers into complacency as to their foreclosure actions

such that defaults can be obtained, and for several other reasons, the undersigned counsel

believes that the motion for rehearing should be granted, and new decisions should be

issued in Phadael and Beaulieu.

Given the 1.540(b)(3) limitation, this Court should

conclude, in line with numerous authorities, that final judgments in favor of plaintiffs

which lacked standing are judgments entered without jurisdiction. See, e.g., Garcia v.

Stewart, 906 So. 2d 1117 (Fla. 4

th

DCA 2005); Lovett v. Lovett, 112 So. 768 (Fla. 1927);

Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994). If judgments entered without

21

standing and jurisdiction are void, rather than voidable, they may be attacked at any time

under Fla. R. Civ. P. 1.540(b)(4).

Cases like this one should NOT be decided in deference to defaults - - by clerks of

court - - which are never again mentioned by plaintiffs as they move for SUMMARY

judgments under an entirely different rule. Not only does Rule 1.510 require that the

grounds for summary judgment be stated with particularity, the pattern and practice of the

foreclosure mills - a pattern and practice followed in this case by the Plaintiff and its

counsel - to obtain clerks’ defaults and then proceed to litigate the matter and move for

final judgments under a different rule - constitutes abandonment of the defaults.

So thoroughly did Plaintiff abandon the default that, on September 21, 2011, 7 days

prior to the summary judgment hearing, it set Defendants’ Motion to Dismiss for hearing

nd

to occur on November 2 .

(Appendix 1).

After obtaining summary judgment on

th

September 28 , Plaintiff’s counsel, the Florida Default Law Group, sent out its notice

cancelling the hearing. (Appendix 2). Despite having made no reference whatsoever to

the default in its motion for summary judgment, Plaintiff may contend that Beaulieu and

Phadael support affirmance based upon the default entered by the clerk of the lower

court. Those cases are either wrongfully decided, or are distinguishable because counsel

did not make this argument - - that because Fla. R.Civ. P. 1.510 requires that the grounds

for summary judgment be completely and explicitly stated, and because Plaintiff did not

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use the default to establish that there were no questions of material fact below, the

summary judgment is unsupportable on that basis.

Even where a default has been entered, final judgment is not available where the

complaint at issue fails to state a claim. Becerra and Horizon Corp. v. Equity Imports,

Inc., 551 So. 2d 486 (Fla. 3d DCA 1989) provides that “failure to state a cause of action,

unlike formal or technical deficiencies, is a total pleading deficiency not curable by a

default judgment.” Indeed, “even a party in default does not admit that the plaintiff in a

foreclosure action possesses the original promissory note.”

Venture Holdings &

Acquisitions Group, LLC v. AIM Funding Group, LLC, case no.’s 4D10-1848, 4D10-832,

4D10-1159 (Fla. 4

th

DCA, Nov. 23, 2011).

Furthermore, a final judgment entered on a complaint which fails to state a cause

of action is void, and it may therefore be attacked at any time.

Southeast Land

Developers, Inc. v. All Florida Site and Utilities, Inc., 28 So. 3d 166, 168 (Fla. 1

st

DCA

2010) citing Moynet v. Courtois, 8 So. 3d 377 (Fla. 3d DCA 2009) and other cases. The

Amended Complaint in this case fails to state a cause of action:(1) because it is not

verified as required by Fla. R. Civ. P. 1.110; and (2) because its exhibits conflict with its

narrative allegations concerning the question of who owns or holds the Note and

Mortgage. It appears that there is a split among the various courts of appeal as to what

constitutes a “void,” versus “voidable,” judgment. This conflict is between Southeast

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Land Developers and Moynet (from the First and Third districts respectively) and Phaedel

and Beaulieu (from this Court.) Defendants ask that this question, given the massive

extent and significance of the current foreclosure crisis and the apparent conflicts among

the district courts of appeal, be certified to the Florida Supreme Court as requiring

resolution.

Defendants respectfully submit that Phadael and Beaulieu seem quite incorrect on

standing and jurisdiction matters.

Perhaps it is better said that the jurisprudence is

hopelessly conflicted on this muddled, yet highly important, topic. In Defendants’ view,

standing is a question of subject matter jurisdiction, and attacks upon it may be made and

will be entertained by the courts, no matter when brought. Jurisdiction may be raised at

any time, even sua sponte on appeal, and cannot be waived. See Fla. R. Civ. P. 1.140(b);

see also State of Florida, Dep’t of Health and Rehabilitative Services v. Schreiber, 561

So. 2d 1236, 1241 (Fla. 4

th

DCA 1990); Taylor v. Siebert, 615 So. 2d 800 (Fla. 1

st

DCA

1993); In re: Harrold, 296 B.R. 868 (U.S. Bankr. Ct., M.D. Fla. 2003); Klos v. Paulson,

2009 WL 205622 (11

th

Cir. 2009); Hernandez v. Coopervision, Inc., 661 So. 2d 33 (Fla.

2d DCA 1995) citing State ex rel. BF Goodrich Co. v. Trammell, 192 So. 175 (Fla. 1939)

and 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994), which the

Hernandez court characterized as holding that “subject matter jurisdiction is so vital to

a court’s power to adjudicate that its absence can be raised at anytime.”

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Indeed, “the

issue of jurisdiction over the subject matter is never waived.”

Dep’t of Revenue v.

Daystar Farms, Inc., 803 So. 2d 892, 896 (Fla. 5

th

DCA 2002); see also Mishoe v.

Mishoe, 591 So. 2d 1100, 1101 (Fla. 1

st

DCA 1992); cf. Beaumont v. Bank of New York

Mellon, case no. 5D10-3471 (Fla. 5

th

DCA, Feb. 17, 2012).

Even where a defendant is in default, an appellate court may entertain its challenges

to subject matter jurisdiction and standing.

Global Aerospace, Inc. v. Platinum Jet

Management, LLC, 2011 WL 248543 (S.D. Fla. 2011) at n. 1, citing Herskowitz v. Reid,

187 Fed. App’x 911 (11

th

Inc., 524 F.3d 1229 (11

th

Cir. 2006) and Stalley v. Orlando Reg’l Healthcare Systems,

Cir. 2008).

Although Beaumont v. Bank of New York Mellon, case no. 5D10-3471 (Fla. 5 th

DCA, Feb. 17, 2012) does not support Defendants’ position with regard to the question

of whether standing can be waived, it strongly supports reversal of the summary judgment

on another ground: the failure of Plaintiff to meet the requirements for re-establishment

of a lost note. Under Beaumont, a plaintiff fails to establish its right to re-establish (and

then enforce) a lost note where it does not prove “who lost the note and when it was lost,”

among other requirements. Further, a trial court in a final judgment re-establishing the

note must include provisions to protect the defendant in case the note is later sought to

be enforced by a third party. Beaumont. This, the court did not do.

The Notice of Filing should be disregarded as a nullity, as the version served upon

25

Defendants did not contain the affidavit or the Note.

It should also be disregarded

because the version filed with the trial court did not contain a service list or the Note

about which the affiant purportedly testified. Under Fla. R. Civ. P. 1.510[c],

The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court.

This portion of the rule was not satisfied because at no time did Plaintiff serve

Defendant with the summary judgment evidence upon which it relied, in particular the

affidavit which was supposed to be attached to the Notice of Filing.

And further, under Rule 1.510[e],

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

(Emphasis added). This portion of the rule was violated by the fact that (1) the

Affidavit and the Note were not served at any time and (2) by the fact that, as

reflected in pages 71-73 of the Record, the Note was not attached to the Notice of

Filing or to the Affidavit which was filed (but not served) as an attachment thereto.

Because the Note was not properly re-established, a decree of foreclosure was

entered foreclosing a mortgage not legally associated with a corresponding debt.

26

This brings this case in close proximity to Venture Holdings & Acquisitions Group,

LLC v. AIM Funding Group, LLC, case no.’s 4D10-1848, 4D10-832, 4D10-1159

(Fla. 4

th

DCA, Nov. 23, 2011), wherein foreclosure was entered without the Note

being re-established. In that case, this Court reversed all four summary judgments at

issue, and took the additional step of dismissing the case without prejudice as to

those defendants which were not in default. This Court should find that, by setting

her Motion to Dismiss for hearing, and by responding to her affirmative defenses by

filing its Motion to Strike (247-249), Plaintiff waived and rendered inoperative the

default as to Osbelia. This being the case, this Court should reverse the summary

judgment as to both Defendants and dismiss the case without prejudice as to Osbelia.

At a minimum, this Court should reverse the Final Judgment as to both Defendants.

Conclusion

There can be no disputing that just as in Venture Holdings, the final

foreclosure judgment must be - -

Reversed and Remanded.

Respectfully submitted this

day of March, 2012.

KENNETH ERIC TRENT, P.A. 831 East Oakland Park Blvd. Fort Lauderdale, FL 33334 (954)567-5877; (954)567-5872 [fax] Ken@ForeclosureDestroyer.com

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By: /s/

Kenneth Eric Trent, Esq. Fla. Bar No. 693601

Certificate of Service

I certify that true and correct copies of the foregoing were sent by U.S. Mail

and facsimile transmission on this

day of March, 2012 to Dean A.

Morande, Esq., at 525 Okeechobee Blvd., Ste. 1200 West Palm Beach, FL 33401-

6350 and at (561)659-7368

By: /s/

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Kenneth Eric Trent, Esq. Fla. Bar No. 693601