IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

GENERAL CIVIL DIVISION

CHASE HOME FINANCE, LLC,

Plaintiff

v. Case No. 09-CA-030804

Division D

, et al.,

Defendants

_________________________________________/

DEFENDANTS’ MOTION AND MEMORANDUM OF LAW

IN SUPPORT OF MOTION FOR REHEARING

Defendants, by and through their undersigned attorney, file this motion per Florida Rule of

Civil Procedure 1.530, and request a rehearing for the following reasons:

1. Foreclosure is not appropriate where the mortgage misidentifies the Lender.

Your undersigned truly hopes that the entry of the Uniform Final Judgment in this matter was

the product of inadvertence or mistake because the facts of this case show that the errors that exist are

anything but "uniform.”

Specifically, it was conclusively established at trial, and Plaintiff presented not one shred or

scintilla of evidence or testimony to contradict the fact that E-LOANS 2000, was not in fact the

"Lender" as speficied onthe note:

(Actual photographic representation of Note)

Further, it was conclusively established that E-LOANS 2000 was not the Lender as specificed

in the mortgage.

(Actual photographic representation of Mortgage)

It was further established that Plaintiff's attorney had absolutely no basis to "Prepare" and

subsequently record the "Assignment of Mortgage" which was attached to complaint. Based on the

unchallenged trial testimony, this document must be considered a fraud:

(Actual photographic representation of Assignment)

It is frankly disappointing that after Defendants formally brought these issues directly to the

attention of the court and Plaintiff years ago, the court simply ignores them and grants plaintiff a

Uniform Final Judgment, without any explaination as to how a judgment can be entered foreclosing

on a mortgage that misidentifies the Lender.

II. THE COURT IGNORES ITS OWN RECOGNITION THAT THE PLAINTIFF'S

PLEADINGS ARE FACIALLY DEFICIENT

·THE COURT:· But in terms of what your burden ·7· ·is, especially at this point in the proceedings,

·8· ·Mr. Reder, although I certainly think it's an issue ·9· ·that would merit evidence and argument at trial, at 10· ·this point in the proceedings, I don't believe that

11· ·the summary judgement is appropriate.· I do think 12· ·that certainly you're right, it was either misspoken 13· ·or incorrect.· There's nothing attached to the 14· ·complaint.·

When this court recognizes this issue, and Plaintiff utterly fails to respond, fails to move to

amend, fails to do anything and then the court just enters judgment, its frankly a miscarriage of justice

and a deprivation of andswers defendants are entitled to.

III. THIS COURT ADMITTED INTO EVIDENCE A DOCUMENT WHICH HAS BEEN

MANIPULATED, IS INCOMPLETE AND

(Actual photographic representation of Power of Attorney)

This court will recall that incredibly, Plaintiff pulls out at the last moment a document which

jsut so happens to exclude what could be information helpful to Defendants.

How is this any diffeent than secret evidence or secret tribunal.

Again, deprivation of rights.

III. The presuit notice admitted into evidence does not comply with the condition precedent of paragraph 22 of the mortgage.

The presuit acceleration notice letter Plaintiff submitted into evidence as Exhibit 6 fails to

comply with paragraph 22, which provides:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to

acceleration following Borrower's breach of any covenant or agreement in

this Security Instrument (but not prior to acceleration under Section 18

unless Applicable Law provides otherwise). The notice shall specify: (a) the

default; (b) the action required to cure the default; (c) a date, not less than

30 days from the date the notice is given to Borrower, by which the default

must be cured; and (d) that the failure to cure the default on or before the

date specified in the notice may result in an acceleration of the sums

secured by this Security Instrument, foreclosure by judicial proceeding and

sale of the Property. The notice shall further inform Borrower of the right

to reinstate after acceleration and the right to assert in the foreclosure

proceedings the non-existence of a default or any other defense of Borrower

to acceleration and foreclosure. If the default is not cured on or before the

date specified in the notice, a Lender at its option may require immediate

payment in full of all sums secured by this Security Instrument without

further demand and may foreclose this Security Instrument by judicial

proceeding. Lender shall be entitled to collect all expenses incurred in

pursuing the remedies provided in this Section 22, including, but not

limited to all attorneys' fees and costs of title evidence.

Paragraph 22 is the only full section of the mortgage contract printed in bold font in this mortgage

instrument, underscoring its importance.

Plaintiff’s presuit notice does not comply with this paragraph in that it

Does not specify the action required to cure the default. (The letter is

ambiguous as it states the total amount required to cure the default is $4,032.33,

but then adds: “*Other Fees & Advances include those amounts allowed by

your Note and Mortgage. If you need additional inforamtion regarding the

fees, please contact us at the number provided below.”

Does not grant Defendants thirty days to cure the default. (The letter states:

“You can resolve this matter quickly and avoid further collection efforts by

making the above-referenced payment immediately.”)

Does not specify “that the failure to cure the default on or before the date

specified in the notice may result in an acceleration of the sums secured by

this Security Instrument, foreclosure by judicial proceeding and sale of the

Property.”

Does not “further inform Borrower of the right to reinstate after

acceleration and the right to assert in the foreclosure proceedings the non-

existence of a default or any other defense of Borrower to acceleration and

foreclosure.”

Prior to acceleration of a home loan and foreclosure of a mortgage securing the loan,

Plaintiff has a contractual obligation to provide the notice in accordance with the time and with the

contents specified by paragraph 22 of the mortgage. E.g., Holt v. Calochas, LLC, No. 4D13-2101,

40 Fla. L. Weekly D296 (Fla. 4th

DCA Jan. 28, 2015); Haberl v. 21st Mortgage Corp., 138 So.3d

1192 (Fla 5th DCA 2014); Samaroo v. Wells Fargo Bank, 137 So.3d 1127 (Fla. 5th DCA 2014);

Disavo v. SunTrust Mortgage, Inc., 38 Fla. L. Weekly D1355 (Fla. 2d DCA June 19, 2013),

Kurian v. Wells Fargo Bank, N.A., 38 Fla. L. Weekly D1226 (Fla. 4th DCA June 5, 2013).

In Holt v. Calachas, LLC, the Fourth District Court of Appeal reversed a final judgment of

mortgage foreclosure because, although the bank introduced into evidence a pre-suit acceleration

notice, the court could not take judicial notice that the letter was mailed. In short, the date on the

letter constitutes hearsay upon hearsay so there must be some other evidence that it was mailed on

the date referenced in the letter. In this case, there was no testimony or evidence presented as to

when Exhibit 6 was mailed.

The case of Haberl v. 21st Mortgage Corp., is dispositive. In that case, the Fifth District

Court of Appeal noted that the “notice of default failed to inform Haberl of the right to reinstate

after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default

or other defenses of borrower to accelration and foreclosure.” Id. at fn. 1. The same defects exist

in the notice of default in this case.

Another dispositive case is Samaroo v. Wells Fargo Bank, 137 So.3d 1127 (Fla. 5th DCA

2014). In that case the District Court of Appeal reversed a final judgment of foreclosure because the

pre-suit acceleration letter stated the borrower “may” — not “shall” — have the right to reinstate after

the acceleration. Again that same defect is found in the presuit acceleration notice Plainti submitted

into evidence in this case.

IV. Defendants were entitled to a final summary judgment.

Defendants file a motion for summary judgment and attached to it an affidavit from Gregory

Fierce stating he owned E-Loans and he was not even aware his company had been listed as the

lender on the mortgage Plaintiff seeks to foreclose in this suit. However, such ruling does not

preclude this Court from reconsidering this issue. “[U]ntil a final judgment is entered, a trial court

may revisit any nonfinal ruling.” Larson & Larson, P.A. v. TSE Indus., 22 So. 3d 36, 40 (Fla. 2009).

In this case, Plaintiff failed to file anything five days before the summary judgment hearing as

required by Florida Rule of Civil Procedure 1.510. As Plaintiff failed to do so, there was no disputed

issue of material fact and summary judgment was appropriate. E.g., Spatz v. Embassy Home Care,

Inc., 9 So.3d 697 (Fla. 4th

DCA 2009). Therefore, Defendants request this Court to reconsider its

decision and grant Defendants’ motion for summary judgment.

V. There Is Insufficient Competent Evidence To Support A Judgment For

Mortgage Foreclosure Because No Evidence was Presented to Support the

Complaint’s Allegations that Chase Home Finance, LLC was was the

owner and holder of the Note and Mortgage or was the party entitled to

enforce the note consistent with Chapter 673 of the Florida Statutes.

In a mortgage foreclosure action the plaintiff must not only prove it has the right to foreclose,

but must also prove that the original plaintiff had the right to foreclose at the time the initial complaint

was filed. E.g., Murray v. HSBC Bank USA, 40 Fla. L. Weekly D239 (Fla. 4th

DCA Jan. 21, 2015);

Wright v. Deutsche Bank National Trust Co., 40 Fla. L. Weekly D183 (Fla. 4th

DCA Jan. 7, 2015);.

Kiefert v. Nationstar Mortg., LLC, 39 Fla. L. Weekly D2591 (Fla. 1st DCA Dec. 16, 2014); Sosa v.

U.S. Bank National Association, 39 F.L.W. D2554 (Fla. 4th

DCA Dec. 10, 2014); Boyd v. Wells Fargo

Bank, N.A., 143 So. 3d 1128 (Fla. 4th DCA 2014); Hunter v. Aurora Loan Servs., LLC, 137 So. 3d

570, 573 (Fla. 1st DCA 2014); Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA

2013); McLean v. JP Morgan Chase Bank Nat’l. Ass’n., 79 So.3d 170 (Fla. 4th

DCA 2012).

In this case, Chase Home Finance, LLC alleged in paragraph 8 that it was the “owner and

holder of Note and Mortgage or is the party entitle to enforce the subject Note consistent with Chapter

673 of the Florida Statutes.” In order to prove this allegation, plaintiff would have to prove transfer

and delivery of possession of the note with the intent of transferring the right to enforce it. §

673.2031(1), Florida Statutes. Plaintiff did not present any evidence with respect to possession or

intent to transfer right to enforcement. Indeed plaintiff’s corporate representative Ron Mulholland

testified that plaintiff did not service the loan prior to 2005 (p. 37), that he was not aware of the prior

servicer Chase Manhattan Mortgage Group (p. 38), and that a copy of the promissory note was

imaged into their computer system on April 3, 2007 (pp. 37-38, 42).

Mr. Mulholland acknowledged he did not know anything about the prior mortgage servicer.

Q. Okay. But you provided no testimony about Chase Manhattan Mortgage

Group, correct?

A. Correct.

Q. Okay. And you don’t know anything about Chase Manhattan Group,

correct?

A. Correct.

Q. Okay. And you don’t know anything about Chase Manhattan Mortgage

Group, correct?

A. Regarding this account?

Q. Correct.

A. No. (pp. 38-39)

There are two endorsements on the promissory note signed by Michael Leddy Executive Vice

Preesident of Crescent Bank and Trust Co. One of the endorsements claimed he had power of

attorney for the original lender E-Loans 2000. Mr. Mulholland acknowedged he had searched for that

power of attorney but still has not seen one.

Q. Okay. And in the deposition you’ll recall testimony – or questions

repeatedly by Mr. Reder about the endorsement that appears on the bottom of there in

which a name – and you couldn’t actually read it off, but you surmise that it was

Michael Leddy?

A. Right.

Q. You – and it says as power of attorney, Mr. Reder asked you, “Did you

have a power of attorney?” And you said, “No.” Do you remember that?

A. Listed attorney in fact for – correct.

Q. And Mr. Reder asked whether you had examined your records to see

whether in fact on existed, and you – you said that one didn’t or you couldn’t find one,

correct?

A. Correct.

Q. After that deposition did you undertake to try to find the power of attorneY?

A. I actually did search for on prior to today and still have not seen one. (pp.

68-69).

. . . .

Q. Okay. And you have no basis of knowledge of how Michael Leddy had any

authority, if any at all, to execute that other endorsement, correct?

. . . .

A. Oh, I’m sorry. I don’t know who that person is. So no, I couldn’t. (p. 70).

Because Chase Home Finance, LLC failed to present any evidence of who transferred the

promissory note to it, failed to present any evidence of the intent of the transferor, failed to present

any evidence of when the endorsements on the promissory note were stamped, and failed to present

any evidence that Mr. Leddy had the power of attorney to endorse the note on behalf of E-Loan, 2000,

this Court should enter a final judgment of involuntary dismissal. E.g., Russel v. Aurora Loan

Services, LLC, No. 2D14-3166, 40 Fla. L. Weekly D967 (Fla. 2d DCA April 24,2015); Tilus v. AS

Michai, LLC, 40 F.L.W. D811 (Fla. 4th

DCA April 8, 2015); Jelic v. LaSalle Bank, N.A., 4D13-4040,

40 Fla. L. Weekly D737 (Fla. 4th

DCA March 25, 2015), Matthews v. Federal National Mortgage

Association, 4D13-4645, 40 Fla. L. Weekly D729 (Fla. 4th

DCA March 25, 2015); Lloyd v. Bank of

New York Mellon, No. 4D13-3799, 40 Fla. L. Weekly D732 (Fla 4th

DCA March 25, 2015); Seffar v.

Residential Credit Soluti0ons, Inc., No. 4D13-3514, 40 Fla. L. Weekly D734 (Fla. 4th

DCA March 25,

2015); Murray v. HSBC Bank USA, No. 4D13-4316 (Fla. 4th

DCA Jan. 21, 2015); Deutsche Bank

National Trust Co. v. Boglioli, 4D13-2323, 40 F.L.W. D173 (Fla. 4th DCA Jan. 7, 2014); Tilus v. AS

Michai, LLC, 40 F.L.W. D811 (Fla. 4th

DCA April 8, 2015); Ham v. Nationstar Mortgage, LLC, 40

F.L.W. D1112 (Fla. 1st DCA May 12, 2015).

In Russel v. Aurora Loan Services, LLC, the Second District Court of Appeal reversed a final

judgment of foreclosure after a nonjury trial because the plaintiff servicing company failed to present

any evidence from the Plaintiff that it was authorized to bring the suit stating:

In this case, as in Elston/Leetsdale, Aurora alleged and verified as true that it was the

loan servicer and had authority to bring the foreclosure action. Aurora did not allege

upon what authorization it acted. Nor did Aurora attach to the complaint or file of

record “any evidence, affidavits[,] or other documents, supporting its allegation that it

was authorized to prosecute theBoglioli action on behalf of the trust.” See

Elston/Leetsdale, 87 So. 3d at 17. And, as in Elston/Leetsdale, the complaint was

verified by an employee of Aurora and not by the real party in interest -- Deutsche

Bank.

In Jelic v. LaSalle Bank, N.A., 4D13-4040, 40 Fla. L. Weekly D737 (Fla. 4th

DCA March 25,

2014), the Fourth District Court of Appeal reversed a trial court’s entry of a final judgment of

mortgage foreclosure stating “Bank’s submission of the original note at trial did not prove it had

standing to foreclose.” Again there was no testimony establishing as to when the indorsements were

affixed to the note.

In Matthews v. Federal National Mortgage Association, the Fourth District Court of Appeal

reversed a judgment of mortgage foreclosure stating:

Here, the note attached to the complaint did not establish standing. It was not

made payable to Fannie Mae and contained no endorsements. Additionally, the note

introduced at trial, while establishing Fannie Mae’s standing at that moment in time,

did not establish standing when the suit was commenced. The blank endorsement was

undated. See McLean, 79 So. 3d at 174.

In Lloyd v. Bank of New York Mellon, the Fourth District Court of Appeal reversed a final

judgment of mortgage foreclosure even though a copy of a promissory note with a blank endorsement

was attached to the complaint because the Plaintiff’s witness “was unable to say whether the note

attached to the initial complaint was the most recent copy of that document.”

In Seffar v. Residential Credit Solutions, Inc., the Plaintiff’s witness testified that the current

mortgage servicing company had acquired the note from the previous servicer, but he had not seen the

agreement nor had a copy of it. The basis for his testimony was a “screen shot” that was not produced

at trial. Furthermore, the Fourth District Court of Appeal rejected the argument Plaintiff was a

nonholder in possession stating:

Alternatively, Bayview argues that RCS was a nonholder in

possession. However, Murray shows the fallacy of that claim. In Murray, we

held that the lender, HSBC, had not proved standing where it had alleged

that it was a nonholder in possession of the note and mortgage, because it

did not prove that each prior transfer of the note conferred the right to

enforce it:

In Murray v. HSBC Bank USA, the Fourth District Court of Appeal stated:

A nonholder in possession, however, cannot rely on possession of

the instrument alone as a basis to enforce it…. The transferee does

not enjoy the statutorily provided assumption of the right to enforce

the instrument that accompanies a negotiated instrument, and so the

transferee “must account for possession of the unendorsed instrument

by proving the transaction through which the transferee acquired it.”

Com. Law § 3–203 cmt. 2. If there are multiple prior transfers, the

transferee must prove each prior transfer. Once the transferee

establishes a successful transfer from a holder, he or she acquires the

enforcement rights of that holder. See Com. Law § 3–203 cmt. 2. A

transferee’s rights, however,can be no greater than his or her

transferor’s because those rights are “purely derivative.”

Murray, 40 Fla. L. Weekly D239 (emphasis in original) (internal citations omitted).

In Deutsche Bank National Trust Co. v. Boglioli, the Fourth District Court of Appeal reversed

a final judgment of mortgage foreclosure after a non-jury trial because the bank’s “testifying witness

was unable to testify as to when the note was endorsed and failed to introduce a pooling and servicing

agreement that she claimed was the method through which appellant acquired the assignment of

note.”

In Tilus v. AS Michai, LLC, 40 F.L.W. D811 (Fla. 4th

DCA April 8, 2015), the Fourth District

Court of Appeal ruled on rehearing that the trial court erred in granting summary final judgment of

mortgage foreclosure because the bank’s filing an original note with a blank endorsement over a

month after it filed suit was insufficient to proof it had standing at the inception of the case.

Finally, in the most recent appellate case on this issue, Ham v. Nationstar Mortgage, LLC, 40

F.L.W. D1112 (Fla. 1st DCA May 12, 2015), the First District Court of Appeal held trial court erred

by entering a final judgment of mortgage foreclosure because the filing of the original promissory

note with an undated endorsement by a successor mortgage servicing company was insufficient to

prove that the original plaintiff mortgage servicing company, which filed a complaint with a lost note

count, had standing to commence the lawsuit.

In this case, Plaintiff failed to introduce any evidence of the multiple transfers of possession

and dates of endorsements from the original lender E-Loans 2000 to the current Plaintiff JP Morgan

Chase Bank. Because it failed to meet its burden, this Court should enter a judgment of involuntary

dismissal. E.g., Wolkoff v. American Home Mortgage Servicing, Inc., No. 2D12-6460 (Fla. 2d DCA

May 30, 2014); Correa v. U.S. Bank Nat’l. Ass’n., 118 So.3d 952 (Fla. 2d DCA 2013).

VI. Plaintiff should not have been allowed to sandbag Defendants by

submitting Exhibit 9 into evidence.

At the hearing on May 1, 2015, Plaintiff sought to admit Exhibit 9, which purported to be a

power of attorney, into evidence (p. 33). This exhibit was not on Plaintiff’s exhibit list. It was not

produced in response to Defendant’s request for production of documents. Defendants were not able

to get this document because their request for production of documents from E-Loans was object to

by Plaintiff, which objection this Court sustained. The Exhibit was not produced to Defendants until

2:54 p.m. April 30.

At the hearing, Mr. Weidner objected on the basis the document was incomplete:

23. We have a copy of a Power of Attorney. But

24 the problem is down at the bottom, it cuts off.

25. And the problem is, there's a Power of Attorney,

p. 20

1. 1. but it's -- it cuts off down at the bottom in

2. paragraph four. It says, and I'll quote it, for

3. purposes of limited Power of Attorney in terms

4. of loan, and loans apply only to, and it stops.

5. And, so, that's a critical limitation on

6. there. We don't know whether it says, only

7. loans that were originated during some period,

7. only loans of a certain amount, I don't know.

8. It 's not a complete document (pp. 19-20)

Mr. Fierce further testified that the power of attorney did not give Crescent Trust Co. the power to

lend funds on E-Loans behalf (p. 23).

Plaintiff argued it was appropriate to present the power of attorney to impeach Mr. Fierce. However,

Plaintiff did not follow the proper procedures for impeachment. It did not impeach Mr. Fierce’s credibility.

It was not relevant to the crucial issue raised in defense which is that E-Loans was not the original lender in

this matter. Finally, impeachment testimony cannot be used to support a party’s case-in-chief.

Hence, Plaintiff’s Exhibit 9 should not have been admitted into evidence because:

It is an incomplete document

It was not provided to Defendants ten days before the hearing as required by the Court’s pre-

trial order.

Defendants were prevented from discovering this document by this Court’s sustaining

Plaintiff’s objection to their requests for production from non-parties

The document, which was an attempt to impeach Mr. Fierce’s credibility, cannot be used as

evidence to support Plaintiff’s case in chief and therefore was irrelevant to the crucial issue of

fact in this case which is E-Loans was not the lender

VII. The Plaintiff failed to present any evidence to support the figures listed in

the proposed final judgment.

Finally, Plaintiff failed to present any evidence supporting the damages listed in its proposed

final judgment. See Doyle v. CitiMortgage, Inc., 40 Fla. L. Weekly D790 (Fla. 2d DCA April 1,

2015); Boyette v. BAC Home Loans Servicing, LP, Case No. 2D14-1870, 40 Fla. L. Weekly D674

(Fla. 2d DCA March 18, 2015); Sas v. Fed. Nat’l. Mortg. Ass’n., 112 So. 2d 778 (Fla. 2d DCA 2013).

WHEREFORE Defendants Kiran R. Patel and Usha Patel request this Court to grant this

motion and enter a final judgment dismissing this case and ruling that they are entitled to an award for

attorney’s fees and costs.

I HEREBY CERTIFY that a true and correct copy of the foregoing is being furnished by

electronic mail where address is provided on June 10, 2015, to Jessica Conte, Shapiro, Fishman &

Gache, LLP, 4630 Woodland Corporate Blvd., Suite 100, Tampa, FL 33614 (jconte@logs.com),

attorney for Chase Home Finance, LLC, Nathan A. Frazier, PO Box 3913, Tampa, FL 33601

(nfrazier@bushross.com; mortgageforeclosures@bushross.com), attorney for Lake Woodberry HOA

Inc., Ernest Mueller, 315 East Kennedy Boulevard, Tampa, FL 33602

(ernest.mueller@tampagov.net), attorney for the City of Tampa, and to Aaron Miller, 2901 West

Cypress Creek Road, Suite 101, Fort Lauderdale, FL 33309 (aaronfmiller@bellsouth.net) attorney for

BankAtlantic.

/s/Randall O. Reder

Randall O. Reder

Florida Bar No. 264210

1319 W. Fletcher Ave.

Tampa, FL 33612-3310

phone 813-960-1952

email reder@redersdigest.com

sec. email ABoucher@ERRofTampa.com

__/s/ ____________________

MATTHEW WEIDNER, Esq.

Matthew D. Weidner, P.A.

Attorney for Defendant(s)

250 Mirror Lake Drive North

St. Petersburg, FL 33701

(727) 954-8752

service@mattweidnerlaw.com

FBN: 185957