Lazardi Amended Initial Brief

8/2/2019 Lazardi Amended Initial Brief

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IN THE COURT OF APPEALS OF THE STATE OF FLORIDA,

FOURTH DISTRICT

OSBELIA LAZARDI and

ANDRES LAZARDI, Case No. 4D11-3996

Defendants/Appellants, LT Case No. 10-CA-24433(11)

v.

WACHOVIA MORTGAGE CORPORATION,

Plaintiff/Appellee.

_____________________________________/

AMENDED INITIAL BRIEF

Submitted by: Kenneth Eric Trent, Esq.

Attorney for Appellants831 East Oakland Park Blvd.

Fort Lauderdale, FL 33334

(954)567-5877; (954)567-5872 [fax]

[email protected]

Fla. Bar No. 693601


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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.

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Introduction

This case presents multiple issues ofgreat public importance. Defendants

and their undersigned attorney believe, and respectfully submit, that this Courts

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 ofAmerica.

Luckily the precedents are with us.

Table of Citations

Fla. R. Civ. P. 1.110.......................................................................................23

Fla. R. Civ. P. 1.140(b)..................................................................................24

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Fla. R. Civ. P. 1.510.........................................................................................15, 22, 26

Fla. R. Civ. P. 1.540(b)(3)..............................................................................21

Fla. R. Civ. P. 1.540(b)(4)..............................................................................22

84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994).................24

BAC Funding Consortium Inc ISAOA/ATIMA v. Jean Jacques,

28 So. 3d 936 (Fla. 2d DCA 2010)................................................................17

Beaulieu v. JP Morgan Chase Bank, N.A.,

case no. 4D10-5288 (Fla. 4 DCA, Jan. 11, 2012)........................................21, 22, 24th

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

(Fla. 5 DCA, February 17, 2012)..................................................................25th

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

551 So. 2d 486 (Fla. 3d DCA 1989) ..............................................................23

Carapezza v. Pate, 143 So. 2d 346 (Fla. 3d DCA 1962)...............................16

Dept of Revenue v. Daystar Farms, Inc.,

803 So. 2d 892, 896 (Fla. 5 DCA 2002)......................................................25th

Dept of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994)...........................21

Dreggors v. Wausau Ins. Co., 995 So. 2d 547(Fla. 5 DCA 2008)..............15th

Edwards v. Simon, 961 So. 2d 973 (Fla. 4 DCA 2007)...............................15th

Garcia v. Stewart, 906 So. 2d 1117 (Fla. 4 DCA 2005)..............................21th

Gee v. U.S Bank Natl Assn as Trustee, case no. 5D10-1687

(Fla. 5 DCA, September 30, 2011)...............................................................15, 16, 18th

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

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2011 WL 248543 (S.D. Fla. 2011).....................................................................25

Goncharuk v. HSBC Mortgage Services, Inc.,

62 So. 3d 680 (Fla. 2d DCA 2011)....................................................................17

Henderson v. Reyes, 702 So. 2d 616 (Fla. 3d DCA 1997).................................20

Hernandez v. Coopervision, Inc.,

661 So. 2d 33 (Fla. 2d DCA 1995)..................................................................... 24

Herskowitz v. Reid, 187 Fed. Appx 911 (11 Cir. 2006)...................................25th

Howell v. Ed Bebb, Inc., 35 So. 3d 167 (Fla. 2d DCA 2010).............................17

In re: Harrold, 296 B.R. 868 (U.S. Bankr. Ct., M.D. Fla. 2003).........................24

Klos v. Paulson, 2009 WL 205622 (11 Cir. 2009).............................................24th

Lizio v. McCullom, 36 So. 3d 927 (Fla. 4 DCA 2010).......................................15th

Lovett v. Lovett, 112 So. 768 (Fla. 1927).............................................................21

Madison v. Haynes, 220 So. 2d 44 (Fla. 4 DCA 1969) ....................................17th

McLean v. JP Morgan Chase Bank Natl Assn,

case no. 4D10-3429 (Fla. 4 DCA Dec. 14, 2011)..............................................15, 20th

Miles v. Robinson, 803 So. 2d 864 (Fla. 4 DCA 2002).....................................17th

Mishoe v. Mishoe, 591 So. 2d 1100, 1101 (Fla. 1 DCA 1992)..........................25st

Moynet v. Courtois, 8 So. 3d 377 (Fla. 3d DCA 2009) ......................................23

Phadael v. Deutsche Bank Trust Company Americas

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

(Fla. 4 DCA, February 8, 2011)......................................................................21, 22, 24th

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Philogene v. ABN AMRO Mortgage Group, Inc.,

948 So. 2d 45 (Fla. 4 DCA 2006)....................................................................16th

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

(Fla. 4 DCA 2010)...........................................................................................16

th

Sandoro v. HSBC Bank, USA Natl Assn,

55 So. 3d 730 (Fla. 2d DCA 2011).....................................................................17

Southeast Land Developers, Inc. v. All Florida

Site and Utilities, Inc.28 So. 3d 166, 168 (Fla. 1 DCA 2010).......................23-24st

Stalley v. Orlando Regl Healthcare Systems, Inc.,

524 F.3d 1229 (11 Cir. 2008)..........................................................................25th

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

192 So. 175 (Fla. 1939).....................................................................................24

State of Florida, Dept of Health and Rehabilitative Services

v. Schreiber, 561 So. 2d 1236, 1241 (Fla. 4 DCA 1990).................................24th

Taylor v. Siebert, 615 So. 2d 800 (Fla. 1 DCA 1993)......................................24st

The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006)..............................15

Venture Holdings & Acquisitions Group, LLC v.

AIM Funding Group, LLC, case no.s 4D10-1848,

4D10-832, 4D10-1159 (Fla. 4 DCA, Nov. 23, 2011) .....................................23, 27th

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

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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

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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 clerks 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. On this same date, September 7 , Osbelia filed herth

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 Osbelias 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).

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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) Plaintiffs 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. Foreclosing a mortgage without a

corresponding debt is clear error.

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

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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

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Governmental Reform[,] :1

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 7,000foreclosure 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 States

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

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

Available at1 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

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http://stopforeclosurefraud.com/2012/03/19/http://stopforeclosurefraud.com/2012/03/19/


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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 thereliability 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)

plaintiffs ownership of the mortgage and note; and (3) defendants 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 plaintiffs 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 byrobosigners. 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, thefailure 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

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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 Iinquired who is the investor? Too many times I would receive the bank

lawyers puzzled response, I dont 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 theeffect of a billion here, a billion there, and pretty soon youre talking about

real money, fifty dollars in recording fees here, fifty dollars in recording

fees there, and pretty soon youre 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

plaintiffs counsel that counsel communicated with a named representativeof the plaintiff, who informed counsel that he or she personally reviewed

plaintiffs 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

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notarizations contained in the supporting documents. Then, plaintiffs

counsel, based upon counsels communication with plaintiffs

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 Yorks 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). There is no assignment of2

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

On March 27, 2012, the undersigned obtained a copy of the version of the2

Notice of Filing, which includes an affidavit but no service list or Note, from the

clerk of the lower court.

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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 Natl Assn, case no. 4D10-3429 (Fla. 4 DCA, Dec. 14, 2011). Theth

standard of review is de novo. As stated in the case ofGee v. U.S. Bank Natl Assn as

Trustee, case no. 5D10-1687 (Fla. 5 DCA, September 30, 2011):th

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

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

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.

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

5 DCA 2008); Edwards v. Simon, 961 So. 2d 973, 974 (Fla. 4 DCA 2007).th th

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 DCA 2010) citing Verizzo v.th

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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 DCA 2006). Where a defendant facingth

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

bec[omes] an issue that . . . plaintiff[] [is] required to prove. Gee, supra, citingLizio,

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, citingRiggs

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

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

Courts 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

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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) citingBAC 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, Natl Assn, 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 defendantsanswer 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 DCA 2002) wherein this Court citedMadison v. Haynes, 220 So. 2d 44th

(Fla. 4 DCA 1969) for the proposition that, When plaintiffs moved for summaryth

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

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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 Plaintiffs motion unquestionably did not preclude the possibility that no possible

answer could raise an issue of material fact. Review of the Plaintiffs 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 notentitled to enforce the loan, (2) creates an issue of fact

precluding summary judgment in favor of Plaintiff. This

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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

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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 implicateMcLean v. JP Morgan Chase Bank Natl Assn, case no.

4D10-3429 (Fla. 4 DCA Dec. 14, 2011), wherein summary judgment for the foreclosureth

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

Plaintiffs filings herein, and in that case, unlike this one, there was an assignment and

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

judgment.

In addition to her motions never being ruled upon by the trial court, Osbelias

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

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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 arePhadael v. Deutsche Bank Trust Company

Americas as Trustee for RALI 2007QS9, case no. 4D11-905 (Fla. 4 DCA, February 8,th

2011) andBeaulieu v. JP Morgan Chase Bank, N.A., case no. 4D10-5288 (Fla. 4 DCA,th

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

evening of March 21, 2012, pending inPhadael, 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 Phadaeland 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 DCA 2005);Lovett v. Lovett, 112 So. 768 (Fla. 1927);th

Dept of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994). If judgments entered without

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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 shouldNOTbe 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

to occur on November 2 . (Appendix 1). After obtaining summary judgment onnd

September 28 , Plaintiffs counsel, the Florida Default Law Group, sent out its noticeth

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

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

Phadaelsupport 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 DCA, Nov. 23, 2011).th

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 DCAst

2010) citingMoynet 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 andMoynet(from the First and Third districts respectively) andPhaedel

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 thatPhadaelandBeaulieu 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, evensua sponte on appeal, and cannot be waived. See Fla. R. Civ. P. 1.140(b);

see also State of Florida, Dept of Health and Rehabilitative Services v. Schreiber, 561

So. 2d 1236, 1241 (Fla. 4 DCA 1990); Taylor v. Siebert, 615 So. 2d 800 (Fla. 1 DCAth st

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

2009 WL 205622 (11 Cir. 2009); Hernandez v. Coopervision, Inc., 661 So. 2d 33 (Fla.th

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

Hernandezcourt characterized as holding that subject matter jurisdiction is so vital to

a courts power to adjudicate that its absence can be raised at anytime. Indeed, the

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issue of jurisdiction over the subject matter is never waived. Dept of Revenue v.

Daystar Farms, Inc., 803 So. 2d 892, 896 (Fla. 5 DCA 2002); see also Mishoe v.th

Mishoe, 591 So. 2d 1100, 1101 (Fla. 1 DCA 1992); cf. Beaumont v. Bank of New York

st

Mellon, case no. 5D10-3471 (Fla. 5 DCA, Feb. 17, 2012).th

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, citingHerskowitz v. Reid,

187 Fed. Appx 911 (11 Cir. 2006) and Stalley v. Orlando Regl Healthcare Systems,th

Inc., 524 F.3d 1229 (11 Cir. 2008).th

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

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

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

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

of a lost note. UnderBeaumont, 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

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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.

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

th

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]

[email protected]

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mailto:[email protected]:[email protected]


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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/ Kenneth Eric Trent, Esq.

Fla. Bar No. 693601

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Documents

Lazardi Amended Initial Brief