SOME IDEAS FOR HEARING ARGUMENTS
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The Assignment Not Attached To The Complaint & Is Dated After The Complaint Was Filed
It is important to note here that judges like rulings from the appellate division that cover their circuit or other opinions from WITHIN their circuit (colleagues). Find those cases first and if you can’t and have to use other Florida cases, show the judge WHY they should rule the same. Remember you have 5 minutes to bring it home.
I’m going to use Deutsche Bank National Trust Company as Trustee for FFMLT 2006-3 as the Plaintiff and Marshall C. Watson as their counsel for this example.
Judge: We’re here on Defense Counsel’s Motion to Dismiss. Counsel please proceed.
Defense Counsel: Good morning Your Honor. This Motion is based on 3 points that warrant dismissal of this action (we will only focus on one – Standing)
1) Plaintiff lacks standing to bring this foreclosure action against my client (FACT/OPINION). The allegations in the complaint allege Plaintiff is the OWNER and HOLD of the NOTE that they seem to have apparently LOST (FACT) but have failed to identify, WHEN they became the OWNER and HOLDER of the Note (FACT) and HOW they became the OWNER and HOLDER of the Note (FACT), or the approximate date WHEN they allegedly lost the NOTE (FACT) and explaining HOW they allegedly lost it (FACT). They have attached a copy of a print out from court records AND NOT THEIR CLIENTS FILES of the Mortgage (FACT) which indicates First Franklin as the ORIGINAL Lender (FACT) and does not mention Plaintiff Deutsche Bank anywhere on THAT document (FACT). No NOTE or a CERTIFIED COPY of such nor has a LAWFUL and EQUITABLE ASSIGNMENT been ATTACHED to the Complaint (FACT) in support of their allegation that they are the OWNER and HOLDER of the NOTE (FACT).
STOP RIGHT HERE (EDITORS NOTE): First always state facts and not opinions. If you have to state an opinion it better be extremely persuasive and you need to have sufficient evidence to back it up. Second, if there was a Notice of Filing after the complaint was filed and you filed your Motion to Dismiss of the Assignment you want to say:
In an attempt to cloud the court’s judgment (OPINION), PLAINTIFFS COUNSEL has magically caused an Assignment to appear (FACT) which according to the date was CLEARLY drafted, executed and filed AFTER the filing of this action (FACT) where numerous case-law opinions throughout Florida PROHIBIT such Assignment filings warranting dismissal (FACT)!
STOP RIGHT HERE (EDITORS NOTE): You don’t want to come off as condescending here. Your want to come off as confident to your position and a little fantastical about Opposing Counsel’s Actions (Not PLAINTIFF) in filing the Affidavit this way. You have to end your speaking presentation here because you don’t ever want the judge to cut you off to allow opposing counsel to speak but you want your last words to the judge the prompt the question…what case law and opinions do you have to support your position?
Judge: Plaintiffs Counsel what do you have to say?
Plaintiff’s Counsel: Your Honor, our Complaint clearly states a cause of action (OPINION). Plaintiff is in possession of the original Promissory Note and we are prepared to drop the Re-establishment Count Your Honor. Since we have possession of the Original Note, the Court should find that an equitable assignment occurred prior to the actual dated assignment and the date of the assignment is irrelevant (OPINION). We only need to have possession to be the holder in due course judge which allows us to bring this action. I have numerous case-law to support our position.
Judge: Such as?
Plaintiffs Counsel: Well Your Honor, WM Specialty Mortgage, LLC v. Salomon, 874 So.2d 680 (Fla. 4th DCA 2004) and Johns v. Gillian, 184 So. 140 (Fla. 1938) clearly state that because Plaintiff had possession of the original Promissory Note the Court should find that an equitable assignment of the mortgage occurred prior to the actual dated assignment and the date of the assignment should be deemed irrelevant.
Judge: I see…Defense Counsel?
Defense Counsel: Your Honor, Counsel’s argument is misplaced (FACT/OPINION). WM Specialty Mortgage requires that, whatever the form of the assignment, there MUST first be an “unconditional” transfer of interest BEFORE the assignee may maintain a foreclosure (FACT). Unlike the matter presently before the Court, in WM Specialty Mortgage the Plaintiff alleged facts of a physical transfer of the mortgage to the assignee prior to the Plaintiff filing suit (FACT). The allegation of physical delivery SUPPORTED an equitable assignment (FACT) and based on THAT fact the Court in WM Specialty Mortgage overlooked the late executed assignment and allowed the foreclosure to continue (FACT). In the matter before this Court, the Plaintiff made no allegation IN THE Complaint of physical delivery (FACT) within the holding of WM Specialty Mortgage and the allegations in the Complaint do not rise to the standard of showing an “unconditional” transfer of the assignor’s rights to Plaintiff (FACT) nor has Plaintiff alleged in the Complaint it is the HOLDER IN DUE COURSE which counsel is alleging here.
Your Honor, before Plaintiff’s Counsel responds, I’d like the court to note that PRESENTING Affidavits that are dated AFTER the a Complaint is filed and the foreclosure has been initiated in the manner done so EXACTLY as seen here (FACT/OPINION), is a pattern and practice amongst the law firms Marshal C. Watson, Florida Default Law Group, Law Offices of David J. Stern and Shapiro & Fishman (FACT) who represent over 90% of foreclosures in the State of Florida (FACT). In fact the argument I’ve just expressed to the court comes straight from Judge Anthony Rondolino of the 6th Judicial Circuit in and for Pinellas County BANK OF AMERICA vs. COLLEEN M. MCKENNA Case No. 09-4179-CI-13 (FACT) which Marshall C. Watson was counsel of record for, where His Honor granted Defendant’s Motion to Dismiss against Marshall C. Watson for the very same reason (hand a copy of 16 Fla. L. Weekly Supp. 833c to Judge) (FACT). At a glance I have over ten (10) cases where this tactic has been used and the case was dismissed as a result (FACT) (hand Judge the cases with the points highlighted). Those cases are BRANCH BANKING AND TRUST COMPANY vs. REGINALD JENKINS, 16 Fla. L. Weekly Supp. 642a, CHASE HOME FINANCE, LLC v. JANET DOBSON, 16 Fla. L. Weekly Supp. 428a, CITIMORTGAGE, INC. vs. MICHAEL EASOM, 17 Fla. L. Weekly Supp. 100b, CREDIT BASED ASSET SERVICING AND SECURITIZATION, LLC v. TAMMY D. HARDY, 16 Fla. L. Weekly Supp. 1147a, SUNTRUST MORTGAGE, INC. vs. ELENA V. FULLERTON, 16 Fla. L. Weekly Supp. 1146b, THE BANK OF NEW YORK MELLON v. MARY L. BARNICH, 17 Fla. L. Weekly Supp. 100a, U.S. BANK NATIONAL ASSOCIATION v. BRENDA C. ROSE, 16 Fla. L. Weekly Supp. 1044a, US BANK N.A. v. JESUS TACORONTE, 17 Fla. L. Weekly Supp. 17a and WACHOVIA BANK NATIONAL ASSOCIATION vs. JUANITA NORTON, 16 Fla. L. Weekly Supp. 1043a.
All of these cases support that where an Assignment is filed AFTER the Complaint is filed and the Complaint fails to allege and/or Plaintiff fails to submit other documentary evidence showing conclusively an EQUITABLE TRANSFER of the Note (FACT), Plaintiff lacks standing to bring a foreclosure action and the case should be dismissed (FACT). I would ask the court at this time based on the OVERWHELMING support I have provided to dismiss this case.
STOP RIGHT HERE (EDITORS NOTE): I cannot tell you what the judge will decide or what Opposing Counsel will say after this point…you be the judge. What I will say is that Judges want to hear the FACTS. You have presented the FACTS very well here. The key to success in this example is your flow of words in a strong and confident manner without studder, interruption or indecisive pause.
Another very important point and cross argument I want to point out is the Assignment is 99% of the time from MERS to the Plaintiff. There are two (2) important positions to take on this.
(1) While the Mortgage may name MERS as the Nominee for Lender, it does so only in the Mortgage and the Mortgage interest only. MERS is not mentioned ANYWHERE on the Note hence it can not assign an interest greater than that which it is entitled to. The MERS assignment (outside of the number of fraudulent issues that may exist on the face of it) will casually state in the language that it is transferring ALL beneficial interest in the Mortgage AND Note. Be sure to bring to the court’s attention that MERS name is not mentioned anywhere on the NOTE as the Lenders Nominee and Plaintiff has NOT provided evidence to support MERS ability to transfer the beneficial interest of the Note.
(2) In instances where the Plaintiff is Trustee for a securitized pool of loans, find the Pooling & Servicing Agreement at http://www.secinfo.com/. Show the court that it would be impossible for MERS to transfer interest to Deutsche when it is clear from the case caption that this loan is part of a pool of loans (FYI – just because they allege your loan is part of a pool does not mean it is but for argument sake use this allegation against them). The Pooling and Servicing Agreement will show who the Depositor is, Servicer, Master Servicer and Deutsche as Trustee. This document is evidence that a) the loan transferred from the original lender to at the very least, the Depositor (where is the evidence of this transfer?), and from the Depositor to the parties in the pool (where is the evidence of this transfer or transfers) and that the Trustee gets its alleged power from this pool and agreement which only begs the question…why is counsel here attempting to claim this Note has moved from MERS to Plaintiff directly?
This is a great point to proving the assignment is a fraud. Watch what opposing counsel answers to this because it will probably amount to testimony at which point you need to be quick to say to opposing counsel “unless you intend to recuse yourself as counsel from the Plaintiff please refrain from testifying on their behalf.” Because at this point anything opposing counsel says will not be supported by anything alleged in the complaint or in the court record and that should always be your…”maybe so your honor but Plaintiff has not alleged such in the complaint…Plaintiff has not submitted any documented evidence to support what counsel is saying here today.”
Well my fellow soldiers of the cause, that is my 2 cents. Master this in 5 minutes and I think the outcome will be a positive one. I’d be very interested to hear any comments and feedback on this. My next topic will be Summary Judgment. I hope this helps.
Anthony Martinez Esq.