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Response to Plaintiff’s Motion for Summary Judgment
IN THE CIRCUIT COURT OF THE
20TH JUDICIAL CIRCUIT IN AND
FOR COLLIER COUNTY, FLORIDA
DEUTSHCE BANK NATIONAL TRUST CASE NO: 07-xxxx-CA
COMPANY, AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITALI, INC., TRUST
2006-HE6, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-HE6,
DEFENDANTS’, De.O and Do.O, RESPONSE/MEMORANDUM OF LAW TO PLAINTIFF’S MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE, ETC
The Defendants, D.O., by and through undersigned counsel, file this Response/Memorandum of Law to Plaintiff’s Motion for Summary Final Judgment of Foreclosure and Taxation of Attorney’s Fees and Costs as follows:
1. At this time there is a genuine issue of material fact as to whether the Plaintiff is the holder of the note and mortgage and, therefore, whether it has standing to bring this action.
2. Plaintiff attached as Exhibit “A” to its Motion for Summary Judgment an affidavit from a Vice President of Countrywide Home Loan Servicing, LP. Although the affiant, Pathan, stated that she has direct access or has been provided with business records of the Plaintiff and that Plaintiff is the designated holder of said note and mortgage, Plaintiff has failed to attach or provide any recorded assignments of the note and mortgage proving that Plaintiff is the owner and holder of the note and mortgage. The mortgage attached to the complaint indicates that the lender is New Century Mortgage Corporation. Plaintiff has not produced any admissible evidence to prove that the Plaintiff has been properly assigned the note and the mortgage in compliance with Florida law, Plaintiff’s trust requirements as well as Internal Revenue Service requirements. Indeed, the lawsuit is subject to dismissal as the complaint fails to comply with Rule 1.130, Fla. R. Civ. P. Jeff-Ray Corporation v. Jacobson, 566 So. 2d 885 (Fla. 4DCA 1990) (where note and mortgage attached to complaint showed the payee to be an entity different from the Plaintiff and no copy of an assignment is attached to the complaint, then the complaint fails to comply with Rule 1.130, even if a specific assignment was alleged in the body of the complaint).
3. There are two very recent cases from the Second District Court of Appeal which strongly support denial of the summary judgment motion and even support dismissal of the case. In BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 2010 WL 476641 (Fla. App. 2nd Dist.), summary judgment was improperly granted as there was a genuine issue of material fact as to whether the Plaintiff had standing to foreclose the mortgage. In BAC Funding, the bank alleged in its unverified complaint that it was the holder of the note and the mortgage, but the mortgage attached to the complaint identified a different lender and mortgagee. When exhibits are attached to a complaint, exhibits control over the allegations in the complaint. Hunt Ridge at Tall Pines, Inc. v. Hall,, 766 So. 2d 399, 401 (Fla. 2nd DCA 2000).
In Verizzo v. The Bank of New York, 2010 WL 711862 (Fla. App. 2nd Dist.), the failure of the purported assignee of a promissory note to timely file the assignment and the original recorded assignment of mortgage required the denial of the Plaintiff’s motion for summary judgment. Here, there are no assignments proving that the note and mortgage had been properly assigned to the Plaintiff. In fact, there was no note attached to the complaint as an exhibit. The recorded mortgage lists the name of the lender as New Century Mortgage Corporation, not the Plaintiff named herein.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that on March 26, 2010, a true and correct copy of the foregoing was faxed, emailed and mailed to: Michael J. Alterman, Esq., Law Office of David J. Stern, P.A., 900 S. Pine Island Road, Suite 400, Plantation, FL 33324-3920 [Attorneys for Plaintiff]; David E. Leigh, Esq., 5150 Tamiami Trail, North, Suite 501, Naples, FL 34103 [Attorney for Sherwood V., Inc.] and David Brian Levin, Esq., Adorno & Yoss LLP, 2525 Ponce de Leon Blvd Ste 400, Miami, Florida 33134-6044.
Attorney for Defendants
2100 East Hallandale Beach Blvd./Suite 200
Hallandale Beach, FL 33009
Telephone: (954) 455-0800
Facsimile: (954) 455-9649
ALAN D. SACKRIN, ESQ. Florida Bar No. 349070
LARRY TOLCHINSKY, ESQ. Florida Bar No 021997
This is a sample document related to a specific set of facts and circumstances and should not be used or relied upon if any foreclosure, deficiency judgment, short sale or any other real estate matter. We recommend and urge you to consult with an experienced lawyer for professional advice as each case is unique.