WELLS FARGO BANK, N.A., Successor By
Merger to Wells Fargo Bank Minnesota, National
Association, Solely in its Capacity as Trustee,
Under the Pooling And Servicing Agreement
Dated September 1, 1999, Home Equity Loan
Asset Backed Certificates, Series 1999-3,
John Smith al.,
DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S
"ORIGINAL NOTE" AND ALLONGES
COMES NOW the Defendant, John Smith , and pursuant to Rule 1.140(f) moves this honorable Court to strike the documents placed into the court file on October 17, 2009
referred to by the Plaintiff as the "original note," and in support thereof states as follows:
1. When the Plaintiff initially filed its Complaint On July 25, 2008 it failed to
support the Complaint with any original documentation, negotiable instrument, note or mortgage.
Attached to the Complaint was a photocopy of the May 21, 1999 promissory note obligating the Defendant to the "original lender" APPROVED, and a photocopy of an alleged allonge assigningthe note from "Approved Residential Mortgage Inc." (hereinafter "APPROVED") to "NorwestBank Minnesota N.A. As Trustee For Provident Bank Home Equity Loan Trust 1999-3"(hereinafter "NORWEST"). There was no documentation filed with the complaint connectingthe note or mortgage to the named Plaintiff WELLS FARGO BANK, N.A. (hereinafter "WELLS FARGO"). The Plaintiff at that time sought reestablishment of the original note which it claimedwas "lost, destroyed or stolen."
2. On October 17, 2008 the Plaintiff filed a document into the case file purported to
be the "Original Note" along with two allonges, one allonge being identical to the allonge filed with the Complaint, purportedly assigning the note to NORWEST, and the other allonge titled NOTE ALLONGE, which was not initially filed with the complaint, allegedly assigning an attached note from the Plaintiff WELLS FARGO to itself as trustee (hereinafter "WELLS FARGO allonge"). Copies of the note and allonges are attached as Exhibit B.
3. On February 10, 2009 the Plaintiff filed into the case file a copy of an Assignment
of Mortgage which assignment was executed on August 20, 2004 and filed into the Hernando County official records on September 9, 2004, a copy of which is attached herewith as Exhibit A.
4. Regardless of the document's title, the said Assignment of Mortgage assigned both the note and mortgage constituting the subject or res of this action to The Provident Bank, Inc., reading as follows in pertinent part:
"...APPROVED RESIDENTIAL MORTGAGE,...does convey, grant, bargain, sell,
assign, transfer and set over to: THE PROVIDENT BANK, INC., ...The described Mortgage, together with the certain note(s) described therein with all interest, all liens, and any rights due or to become due thereon..."
5. On February 16, 2010 the Defendant inspected the alleged "Original Note" placed in the file and denies its authenticity and that of the purported signature thereon (see "Affidavit of Defendant, Samuel Clay Adams In Opposition to Plaintiff's Motion for Summary Judgment" filed concurrently herewith and incorporated herein by reference thereto.
6. On the same date the Defendant observed that while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges filed with the note were not attached affixed to the note prior to filing.
7. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp. Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. § 673.2041(1) and Booker v. Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998):
"The allonge, ultimately filed with the court had never previously been verified by affidavit or testimony, nor had it been provided to the court or to Booker in the form of an amended complaint. A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991)."
8. Furthermore, even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are contradicted and invalidated by competing evidence entered by the Plaintiff in the recorded
Assignment of Mortgage (Exhibit A), showing another named signatory assigning both the note and mortgage to Provident Bank on August 20, 2004. This fact is corroborated by the aforementioned affidavit of title attorney Gregory D. Clark, Esq., filed concurrently herewith and fully incorporated herein by reference thereto. The allonges filed on October 17, 2008 are therefore not valid and must be stricken.
9. Furthermore the WELLS FARGO allonge filed on October 17, 2008 is a sham on its face as it allegedly assigned the res to itself, was not filed with the Complaint, and the
Plaintiff can not be allowed to amend the record with exhibits that did not exist when the action was filed.
WHEREFORE, the Defendant, John Smith , respectfully moves this court to strike the alleged "original note" along with the allonges filed therewith on October 17, 2008.
Respectfully submitted on this day of March, 2010.
MEMORANDUM OF LAW
Regarding the note and allonges in this instant case: while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges were not previously affixed to the note. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp.
Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. § 673.2041(1) and Booker v.Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998):
 Contrary to other arguments now advanced by Sarasota, Inc., the trial court could not simply assume that Sarasota, Inc. held the note, or that the photocopy of an allonge, filed after the hearing on the motion for summary judgment, was of appropriate evidentiary value. Booker has correctly pointed out that in order to be the real party in interest on a promissory note, the plaintiff must be the holder of the note. See Troupe v. Redner, 652 So. 2d 394, 395-396 (Fla. 2d DCA 1995).Here, the allonge, attached to the complaint, and referred to by Sarasota Inc.'s affidavit in support of its motion for summary judgment, showed an assignment of the note from an institution other than Citizens and Builders. The allonge, ultimately filed with the court had never previously been verified by affidavit or testimony, nor had it been provided to the court or to Booker in the form of an amended complaint.
A Florida court may not consider an unauthenticated document in ruling on a motion for
summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266
(Fla. 1st DCA 1991).
 "An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof." Black's Law Dictionary 76 (6th ed. 1990). Florida's Uniform Commercial Code does not specifically mention an allonge, but notes that "for the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is part of the instrument. § 673.2041(1), Fla. Stat. (1995)." Federal rulings on the Uniform Commercial Code (UCC) in regard to the negotiation and enforcement of negotiable instruments are applicable to this issue in that the UCC is in effect enacted into the Florida statutes.
In Adams v. Madison Realty & Development Inc., 853 F.2d 163
(3rd Cir. 07/22/1988) the 3rd Circuit ruled as follows, with emphasis added:
 Article 3 of the Uniform Commercial Code incorporated many portions ofits predecessor, the Uniform Negotiable Instruments Law (NIL), drafted in 1896 by the National Conference of Commissioners on Uniform State Laws. By 1924, the NIL had been adopted in every state. See 2 F. Hart & W. WiIlier, Commercial Paper Under the Uniform Commercial Code § 1.06, at 1-25 to -26 (1988). When it was transplanted into the 1956 draft of the Uniform Commercial Code, the indorsements provision was altered in only a minor respect. Section 31 of the NIL had specified that a proper indorsement "must be written on the instrument itself or upon a paper attached thereto." The Code substituted the words "so firmly affixed as to become a part thereof" for the phrase "upon a paper attached thereto."...
 A holder in due course must take the instrument for value, in good faith,and without notice that it is overdue, that it has been dishonored, or that a claim or defense to it exists on the part of any person. See U.C.C. § 3-302(1). But preliminarily, a person seeking to become a holder in due course must satisfy the threshold requirements for becoming a "holder," the critical issue on this appeal.  The Code defines a holder as one 'who is in possession of . . . an instrument . . . drawn, issued or indorsed to him or to his order." U.C.C. § 1- Defendant's Motion to Strike Note and Allonges - page 5 of 6
201(20). Mere ownership or possession of a note is insufficient to qualify an individual as a "holder." The instrument must be obtained through a process the Code terms "negotiation," defined as "the transfer of an instrument in such form that the transferee becomes a holder." U.C.C. § 3-202(1). If the instrument is payable to order -- as is the case with the notes here -- negotiation is accomplished "by delivery with any necessary indorsement." Id.
 In explaining the requirement that the indorsement be on or firmly affixed to the instrument, the Official Comment states that the Code "follows decisions holding that a purported indorsement on a mortgage or other separate paper pinned or clipped to an instrument is not sufficient for negotiation. The indorsement must be on the instrument itself or on a paper intended for the purpose which is so firmly affixed to the instrument as to become an extension or part of it. Such a paper is called an allonge." U.C.C. § 3-202 Official Code
 The Code's requirement that an indorsement be "firmly affixed" to its instrument is a settled feature of commercial law, adopted verbatim by every American state, the District of Columbia, and the Virgin Islands. See 5 R. Anderson, Uniform Commercial Code § 3-202:2, at 416 (3d ed. 1984) (citing codifications). With a unanimity unusual in decisional law, the directive has been faithfully observed.
 The historical origins of the provision have been chronicled to the days of the Law Merchant. See Pribus v. Bush, 118 Cal. App. 3d 1003, 173 Cal. Rptr. 747
749 (1981). The practice of multiple indorsements which accompanied the growth in commerce eventually led to acceptance of the use of allonges. See id.; Estrada v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 725 (Tex. Ct. App. - Houston [14th Dist.] 1977, writ ref'd n.r.e.). Even today, however, numerous jurisdictions permit allonges only where, because of multiple indorsements, no additional space for signatures remains on the negotiable instrument. See, e.g., Pribus, 173 Cal. Rptr. at 751; Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263, 187 S.E.2d 320, 321 (1972). But see Crosby v. Roub, 16 Wis. 616, 723-24 (1863) (allonge permitted even where space remains on note).
 When the drafters of the Uniform Commercial Code replaced the term "attached" in the NIL with the phrase "firmly affixed," they intended to make the use of allonges more difficult. See Hills v. Gardiner Savings Institution, 309 A.2d 877, 880-81 (Me. 1973); Estrada, 550 S.W.2d at 728; 5 Anderson, supra, § 3-202:05. Courts have advanced two justifications for the firmly-affixed requirement. The California Court of Appeals reasoned that the provision serves to prevent fraud, remarking that a signature innocently placed upon an innocuous sheet of paper could be fraudulently attached to a negotiable instrument in order to simulate an indorsement. Pribus, 173 Cal. Rptr. at 750. But cf. Lamson v.Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 968 (1975) (allonge consisting of two legal sheets stapled to two small checks held valid because signing on checks valid themselves would have been impossible; "stapling is the modern equivalent of gluing or pasting").
 The affixation requirement has also been cited for its utility in preserving a traceable chain of title, thus furthering the Code's goal of free and unimpeded negotiability of instruments. Nearly a century ago, the Supreme Court of Georgia declared it "indispensably necessary" that negotiable instruments "should carry within them the indicia by which their ownership is to be determined; otherwise, their value as a circulating medium would be largely curtailed, if not entirelydestroyed." Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 46 (1897). See also Crosby, 16 Wis. at 724 (permanently attached indorsements to instrument "travel with it wherever it might go"). Chancellor Hawkland writes that it would be "unreasonable to impose upon the indorsee the risk that the present holder or a prior holder had negotiated the instrument to someone not in the apparent chain of title by virtue of a separate document." 4 W. Hawkland & L. Lawrence, Uniform Commercial Code Series § 3-202:05 (1984).