supreme court of jflortba · this coli n has jurisdiction ... john doe and jane doe, ... and that a...

Supreme Court of Jflortba

CASE NO.: SCI 1-697

On Discretionary Review From The Fourth District Court of Appeal

(4D10-378) (Circuit Court Case No. 50 2008 CA 031691 XXXX MB)

ROMAN PINO,

Petitioner,

v.

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS

TRUSTEE FOR TFIE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-0C8, MORTGAGE PASSTHROUGH

CERTIFICATES, SERIES 2006-0C8, et al.,

Respondents.

APPENDIX TO PETITIONER'S INITIAL BRIEF ON THE MERITS

Respectfully submitted,

ICE LEGAL, P.A. Counsel for Petitioner

1015 N. State Road 7, Suite D

Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Facsimile: (866) 507-9888 [email protected]

mailto:[email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the APPENDIX TO

PETITIONER'S INITIAL BRIEF ON THE MERITS was served by mail this June

9, 2011 to all parties on the attached service list.

ICE LEGAL, P.A.

Counsel for Petitioner

1015 N. State Road 7, Suite D Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Facsimile: (866) 507-9888

oszitrr-B^ d^-f

&** ENRIQUE NIEVES III Florida Bar No. 41736

SERVICE LIST

Forrest G. McSurdy, Esq. Katherine E. Giddings, Esq. LAW OFFICES OF DAVID J. Nancy M. Wallace, Esq. STERN, P.A. AKERMAN SENTERFITT 900 South Pine Island Road, Suite 400 16 East College Avenue, Suite 1200 Plantation, FL 33324-3920 Tallahassee, FL 32301 Telephone: (954) 233-8000 Telephone: (850)425-1626

Telecopier: (850) 325-2526 [email protected] [email protected]

MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC. c/o CT Corporation Systems 1200 South Pine Island Road

Plantation, FL 33324

mailto:[email protected]:[email protected]

INDEX TO APPENDIX

Documents Date Page

Complaint (excerpts of exhibits included for brevity) 10/09/2008 1

Defendants Mot. to Dismiss Complaint 11/10/2008 8

Plaintiffs Resp. to Mot. to Dismiss and Mot. for Award of Attorney Fees Pursuant to F.S. 57.105

2/12/2009 17

Amended Complaint (excerpts of attachments included for brevity) 2/12/2009 19

Defendants Opp. to Plaintiffs Mot. for Award of Attorneys Fees including Exhibits A-J

2/17/2009 27

Notice of Taking Depositions 2/20/2009 49

Defendants Mot. to Dismiss the Amended Complaint 2/23/2009 52

Notice of Voluntary Dismissal 3/09/2009 62

Complaint filed in The Bank of New York Mellon v. Pino, Case No. 50 2009 CA 0274000 XXXX MB (Palm Beach County) (Pino II)(attachments omitted except Assignment)

8/13/2009 65

Assignment of Mortgage attached to Complaint in Pino II 7/14/2009 69

Defendants Mot. to Strike the Notice of Voluntary Dismissal and Dismissal with Prejudice for Fraud Upon the Court (Exhibit C omitted because it is located on page 65 of the appendix)

8/20/2009 70

Plaintiffs Resp. to Roman Pinos Mot. to Strike the Notice of Voluntary Dismissal

1/07/2010 162

Defendants Reply Mem. in Support of Mot. to Strike the Notice of Voluntary Dismissal and Mot. for Dismissal with Prejudice for Fraud Upon the Court

1/12/2010 169

Tr. of Proceedings held before the Honorable Meenu Sasser 1/14/2010 177

Order denying Mot. to Strike the Notice of Voluntary Dismissal 1/12/2010 204

Original Opinion of Fourth District Court of Appeal 2/2/2011 207

Appellees Mot. for Clarification 2/4/2011 220

Opinion of the Fourth District Court of Appeal 3/30/2011 224

IN T HE C IRCUIT CO URT OF THE 15TH JUD IC IAL C IRCU IT, IN AND FOR PALM BEACH COUNTY, FLORIDA GENERA L JURISDICTION DIVI SION

________________ CASE NO:

THE BAN K O F NEW YORK MELLON F/KiA THE BANK OF NEW YORK AS TR USTEE POR TH E CEIH IFICATEHOLDERS C WALT, INC. A LTERNATIVE LOAN T RU ST 2006-0CS, MORTGAGE PASS-TH ROUG H CE RTIF ICATES, SE RIES 200G-OCS.

I'LA INTIPF VS.

RO MAN PIN O; UNKNOWN S POU SE OF ROMAN PINO IP ANY; ANY AND ALL UN KNOlk'N PARTIES C LA IMING BY, TH ROUG H, UNDER, AND AGAfNST TH E HEREIN NA MED IN DIVIDUA L DEI'END/\NT(S) WHO ARE NOT KNOWN TO 13 10 DEAD OR A LI VE, WHETH ER SAI D UNK NOWN PARTIES MAY CLA IM AN INTE REST AS SPO USES, HEIRS, DEV ISEES, G RANTEES O R OTHER CLA IMANTS; MILI"AKE HOMEOWNERS' ASSOC IAT ION , INC.; MORTGAGE ELECTR ON IC REG ISTRAT ION SYSTEMS, INC.; JOIIN DO E AND JANE DOE AS UNKNOWN TENANTS IN POSS ESS ION

DEF ENDANTfS)

502008 CA 03169 1 XXXX MB

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COM I' LAINT TO FOREC LOSE MORTGAGE, TO REPORM MORTG '6 Ii. D ;'01.( AND TO ENPO RCE LOST LOAN DOCUMENTS IV/S/O,tl?

Plaintifr, sues the DcfcndLlnt(s) and all eges:

COUNT I

I. T i llS IS AN ACTION to forec lose a Mortgage on real property in PALM BEACI I County, Florida.

2 . This COli n has jurisdict ion over the subject matter herein .

J. On JULY 25, 2006 ROMAN PINO, A S INGLE MAN executed and de li ve red a Promissory Note and a

PURCII ASE MONEY Mortgage securing payment or the Note to the Payee named thereon. iI . The Mortgage was recorded all AUGUST 8, 2006 in Offic ial Records Book 20705 at page 1653 , of the

Publ ic Records of PALM BEACH County, Florida, alld mortgaged th e property described in it , then own ed

by and possessed by the Mortgagors, a copy or the Mortgage IS altached hereto as "Exhibit "A" . Sa id

mortgage was subsequently ass igned to TH E BANK OF NEW YORK MELLO N F/KiA TH E BANK OF

NEW YO RK AS TR USTEE FOlc TH E CERTI FICA TEHO LDER S C WALT, INC. ALTERNAT IVE

LOAN TRU ST 200G-OCS, MORTGAGE PASS-Til ROUGH CE RTIFI CATES, SE RJES 2006-0CS. by

virtu e of an assignment to be recorded.

5. The Pla intiff owns and holds the Note and Mortgage.

(" The property is now owned by the Dcrendant(s), ROM AN PINO, if li v ing and if dead, th e unknown

spouses , heirs and benefic iaries of ROMAN PINO who hold(s) possess ion .

A. 1

7. There is a default under the terms of the note and mortgage for the MAY 1,2008 payment and all payments

due thereafter.

8. All conditions precedent to the acceleration of this Mortgage Note and to foreclosure of the Mortgage have

been fulfilled or have occurred.

9. The Plaintiff declares the full amount payable under the Note and Mortgage to be due.

lO. The borrowers owe Plaintiff $162,336.68 that is due in principal on the Mortgage Note and Mortgage,

together with interest from APRIL I, 2008, late charges, and all costs of collection including title search

expenses for ascertaining necessary parties to this action and reasonable attorney's fees.

11. Plaintiff is obligated to pay its attorney a reasonable fee for his services rendered.

12. Defendants, John Doe and Jane Doe, may claim an interest in the property described in the Mortgage as

tenants pursuant to a lease agreement, either written or oral. Said interest is subject, subordinate, and

inferior to the lien of the Mortgage held by Plaintiff.

13. In addition to all other named defendants, the unknown spouses, heirs, devisees, grantees, assignees,

creditors, trustees, successors in interest or other parties claiming an interest in the subject property by,

through under or against any of said defendants, whether natural or corporate, who arc not known to be

alive or dead, dissolved or existing, are joined as defendants herein. The claims of any of said parties are

subject, subordinate, and inferior to the interest of Plaintiff.

14. The Defendant, MIL-LAKE HOMEOWNERS' ASSOCIATION, INC., is joined because it may

claim some interest in or lien upon the subject property by virtue of possible association liens and

assessments. Said interest is subject, subordinate, and inferior to the lien of the Mortgage held by the

Plaintiff.

15. The Defendant, UNKNOWN SPOUSE OF ROMAN PINO, is joined because SHE may claim

some interest in or lien upon the subject property by virtue of a possible homestead interest. Said interest is

subject, subordinate and inferior to the interest of the Plaintiffs mortgage.

16. The Defendant(s),MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., IS

joined because IT may claim some interest in or lien upon the subject property by virtue of a MORTGAGE

recorded in Official Records Book 20705 at Page 1676 in PALM BEACH COUNTY which is inferior to

Plaintiffs Mortgage described herein.

WHEREFORE, Plaintiff prays: That an accounting may be had and taken under the direction of this Court

of what is due the Plaintiff for principal and interest on said Mortgage and Mortgage Note, and for the costs, charges

and expenses, including attorney's fees and title search costs, and advancements which Plaintiff may be put to or

incur in and about this suit, and that the Defendants found responsible for same be ordered to pay the Plaintiff herein

the amounts so found to be due it; that in default of such payments, all right, title, interest, claim, demand, or equity

of redemption of the Defendants and all other persons claiming by, through, under or against said Defendants since

the filing of the Lis Pendens herein be absolutely barred and foreclosed and that said mortgage property be sold

under the direction of this Court; that out of the proceeds of said sale, the amounts due the Plaintiff may be paid so

far as same will suffice; and that a deficiency judgment be entered if applicable and only in the event no Order of

Discharge of Personal Liability in Bankruptcy has been entered as to any of the Defendants who signed the subject

Note and Mortgage and a Writ of Possession be issued.

A. 2

COUNT II

17. This is an action to reform the Mortgage.

J 8. Plaintiff hereby realleges and reasserts all of the allegations contained in Count I of Plaintiffs Complaint in

this cause.

19. On JULY 25, 2006 ROMAN PINO, A SINGLE MAN, for valuable consideration, executed a note and

mortgage encumbering the real property in question.

20. The Mortgage was recorded on AUGUST 8, 2006 in Official Records Book 20705 at page 1653 of the

Public Records of PALM BEACH County, Florida, and mortgaged the property described in it, then owned

by and possessed by the Mortgagors, a copy of the Mortgage and Note are attached hereto as "Exhibit A".

21. The Note and Mortgage encumbers the real property located at 3764 MIL RUN COURT, GREENACRES,

FL 33463.

22. The legal description in the mortgage has been omitted.

23. That the correct legal description on the mortgage should read as follows:

LOT 17, MIL LAKE ESTATES, PLAT NO. 3, ACCORDING TOT HE PLAT THEREOF, AS

RECORDED IN PLAT BOOK 45, PAGES 23 AND 24, PUBLIC RECORDS OF PALM BEACH

COUNTY, FLORIDA, LESS THE FOLLOWING SPECIFICALLY DESCR(BED PARCEL OF

LAND:

BEGIN AT THE NORTHEAST CORNER OF SAID L.OT 17; THENCE SOUTH 01 0 43' 35" WEST, ALONG THE

EAST LINE OF SAID LOT 17, A DISTANCE E OF 32.04 FEET; THENCE SOUTH 460 43' 35" WEST, ALONG

THE SOUTHEASTERLY LINE OF SAID LOT 17, A DISTANCE OF 29.0] FEET; THENCE NORTH 490 07' 33"

WEST, A DISTANCE OF 91.57 FEET; THENCE SOUTH 40 52' 27" WEST, A DISTANCE OF 0.96 FEET;

THENCE NORTH 49 01' 33"WEST, A DISTANCE OF 37.00 FEET TO A POINT ON A CURVE CONCAVE

TO THE NORTHWEST, SAID CURVE HAVING A RADIUS 35.00 FEET, A CENTRAL ANGLE OF 200 29' 15"

AND CHORD BEARING OF NORTH 300 37' 50" EAST, THENCE NORTHEASTERLY, ALONG THE ARC OF

SAID CURVE, A DISTANCE OF 12.52 FEET TO THE NORTHWEST CORNER OF SAID LOT 17; THENCE

SOUTH 690 36' 48" EAST, ALONG THE NORTHEASTERLY LINE OF SAID LOT 17, A DISTANCE OF 121.19

FEET TO THE POINT OF BEGINNING.

24. That the reformation of the mortgage will not prejudice any party to this cause of action.

WHEREFORE, PlaintiffrespectfuJly requests this Honorable Court, reform the Mortgage to reflect the

correct legal description.

COUNT III

25. This is an action to enforce a lost, destroyed or stolen promissory note and Mortgage under

Fla.Stat.673.3091.

26. On JULY 25, 2006, ROMAN PINO, A SINGLE MAN, executed and delivered a Promissory Note and

a Mortgage securing payment of the Note to the payee named thereon.

27. The Mortgage was recorded on AUGUST 8,2006 in Official Records Book 20705 at page 1653, of the

Ptlblic Records of PALM BEACH County, Florida, a substantial copy of the Mortgage being attached

hereto as composite Exhibit "A" to the Plaintifrs original Complaint herein. A. 3

28. The Plaintiff is not presently in possession of original Note and Mortgage. However,

a) the Plaintiff was in possession of the Note and Mortgage and was entitled to enforce THEM when

the loss of possession occurred;

b) the loss of possession was not the result of a transfer by Plaintiff or lawful seizure; and

c) the Plaintiff cannot reasonably obtain possession of the Note and Mortgage because THEIR

29.

whereabouts cannot be determ ined. IL. The terms of the Note are shown on the attached ledger of loan marked as Exhibit "--9--".

30. The Plaintiff will agree to entry of a Final Judgment of Foreclosure wherein it will be required to indemnify

and hold harmless Defendant(s), ROMAN PINO, from any loss they may incur by reason of a claim by

another person to enforce the lost Note and Mortgage.

WHEREFORE, Plaintiff requests entry of judgment confirming its right to enforce the lost Note and

Mortgage under Fla. Stat.673.3091.

TO ALL DEFENDANTS: PLEASE NOTE EFFECTIVE OCTOBER 13,2006, 15 U.S.C. 1692G OF THE

FAIR DEBT COLLECTION PRACTICES ACT HAS BEEN AMENDED AS FOLLOWS:

(a) LEGAL PLEADINGS -- Section 809 of the Fair Debt Collection Practices Act (15 U.S.C. 1692g) is

amended by adding at the end the following new subsection:

"(d) Legal Pleadings - A communication in the form of a formal pleading in a civil action shall not

bc treated as an initial communication for purposes of subsection (a)."

08-95787 CWF

"'\GROUPS\FCDOCS\COMPI.AJN\08\08.95787.Cr..iP

Attorney for Plaintiff

900 South Pine Island Road SUITE 400

Plantation, FL 33324-3920

(954) 233-8000

Bar #: 27914

A. 4

Return To: SILVER STATE FINANCIAL SERVICES, DBA'SILVER STATE MORTGAGE 2485 Village View Drive, 3rd Floor. Henderson. NV 89074

This document was prepared by:

Record & Return to:

Citizens Title . . 30 1 210 N UniversIty Dr., SUlte Coral Springs, Fl 33071

, Loan Number: 2200054676

MIN: 100l63J22000546765

"11111 I B 11111111 H IIIIII J I GFN 20060462161-OR BK 20705 PG 1653 RECORDED 08/08/2006 15:22:42 Palm Beach County, Florida AtiT 162,400.00 Deed Doc 568.40 Intang 324.80 Sharon R. Bock,CLERK & CO"PTROLLER Pgs 1653 - 1675; (23pgs)

-----------(SpSCt Above This Line For Recording D8181-----------

MORTGAGE MIN 100163122000546765

DEFINITIONS

Words used in multiple sections of this document are defined below and other words are defined in Sections 3, II, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 16. .

(A) "Security Instrument" means this document, which is dated July 25 , 2006 together with all Riders to this document. / (8) "Borrower" is ROMAN PINO a s1 ng1 e man . ,....

Borrower is the mortgagor under this Security Instrument. (e) tiMERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender-' s successors and assigns. MERS is the mortgagee under this Security Instrument, MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. (D) "Lender" is Silver State Financial Services, Inc. d/b/a Silver State Mortgage

flORIDA-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMelT WITH MERS

-6A{FL) (0005).03 (I)

Page 1 of 16

VMP Mortgage Solutions, Inc.

Initials: \l p

Book20705/Page1653

Fonn3010 1/01

Page 1 of 23 A. 5

Lender is a corporat 1 on organized and existing under the laws of Nevada Lender's address is 2485 Vi1l age V1 ew Dr., 3rd Floor, Henderson, NV 89074

(E) tlNote" means the promissory note signed by Borrower and dated July 25 , 2006 . The Note states that Borr7w (owes Lender one hundred sixty-two thousand four hundred and 00/100 Dollars (U. S. $ 162 .400. 00 ) plus interest. Borrower has prom ised to pay this debt in regular Periodic Payments and to pay the debt in ruJl not later than August 1, 2036 (F) ''Property'' means the property that is described below under the heading "Transfer of Rights in the Property." (G) "Loan ll means the debt evidenced by the Note, plus interest, any prepayment charges and late charges due under the Note, and aU sums due under this Security Instrument, plus interest. (H) ''Riders tl means all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be executed by Borrower [check box as applicable]:

W Adjustable Rate Rider D Balloon Rider DVARider

D Condominium Rider D Second Home Rider D Planned Unit Development Rider D 1-4 Family Rider [j] Prepayment Rider m Other(s) [specify]

INTEREST-ONLY ADDENDUM TO ARM RIDER

(I) "Applicable Lawn means all controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all appJicable final, non-appealable judicial opinions. (J) "Community Association Dues, Fees, and Assessments" means all dues, fees, assessments and other charges that are imposed on Borrower or the Property by a condominium ac;sociation, homeowners association or similar organization. (K) "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic lenninal, telephonic instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers. (L) "Escrow Items" means those items that are described in Section 3. (M) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to, or destruction of, the Property~ (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value andlor condition of the Property. (N) ''Mortgage Insurance" means insurance protecting Lender against the nonpayment of, or default on, the Loan. (0) "Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the Note, plus (ii) any amounts under Section 3 of this Security Instrument.

-6A(R.) (0005).03 ~

Book20705/Page1654

Page 2 of 16 '""."~ Form 3010 1/01

Page 2 of 23 A. 6

COUNTRYWIDE HOME LOANS, INC.

.. .. . ....

eoan No.:

Mortgagor (s) :

Property Address:

Original Balance:

Origination Date:

Payment Amount:

Interest Rate (Percent):

130133456

ROMANPINO

COUNTRYWIDE HOME LOANS, INC. 1I0S CORPORATE DRll', HAIL fTOP Pr%-8-15

PlANO, TX1S014

3764 MIL RUN COURT, GREENACRES, FL 33463

$162,400.00

JULY 25, 2006

$930.05

6.875%

EXHIBIT" B"

1

A. 7

IN THE CIRCUIT COURT FOR THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 20060C8, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-0C8.

Plaintiff,

vs.

ROMAN PINO; UNKNOWN SPOUSE OF ROMAN PINO IF ANY; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; MIL LAKE HOMEOWNERS' ASSOCIATION, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION,

Defendants. ___________________________________/

GENERAL JURISDICTION DIVISION

CASE NO.

50 2008 CA 031691XXXX MB

DEFENDANT, ROMAN

PINOS, MOTION TO DISMISS

COMPLAINT, MOTION TO STRIKE, AND IN THE

ALTERNATIVE, MOTION

FOR SUMMARY JUDGMENT

MOTION TO DISMISS

Defendant, ROMAN PINO, moves to dismiss the Mortgage Foreclosure Complaint of

Plaintiff, THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS

TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN

ICE LEGAL, P.A. 1975 SANSBURYS WAY, SUITE 115, WEST PALM BEACH, FL 33411 TELEPHONE (561)793-5658 FACSIMILE (866) 507-9888

A. 8

CASE NO. 50 2008 CA 031691XXXX MB

TRUST 2006-0C8, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-0C8, on

the grounds that it fails to state a claim upon which relief may be granted and that it fails to

allege sufficient facts to establish that it is the real party in interest. Defendant further moves to

strike the attachment to Plaintiffs complaint which purports to establish the terms of a

promissory note. To the extent that any of these motions require evidence outside the four

corners of the Complaint, Defendant moves, in the alternative, for summary judgment on the

stated grounds. Defendant relies on the Courts power of judicial notice as indicated below. In

support of these motions, the Defendant states as follows:

I. On the Face of the Complaint and Incorporated Documents, Plaintiff Is Not the Real Party in Interest.

The Complaint filed by the Plaintiff seeks to foreclose and to enforce lost loan

documents. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent part:

Every action may be prosecuted in the name of the real party in interest, but ... a party with whom or in whose name a contract has been made for the benefit of another...may sue in the persons own name without joining the party for whose benefit the action is brought...

The style of this action identifies the Plaintiff as: THE BANK OF NEW YORK

MELLON F/K/A THE BANK OF NEW YORK AS TRUSTEE FOR THE

CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-0C8,

MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-0C8. Attached to the

Complaint, however, is an alleged copy of the mortgage which identifies Silver State Financial

Services, Inc. d/b/a Silver State Mortgage as the Lender and Mortgage Electronic Registration

Systems, Inc. as the Mortgagee.

It appears on the face of the Complaint and the incorporated documents that a person

other than the Plaintiff is the true owner of the claim sued upon and that the Plaintiff is not the

real party in interest and is not shown to be authorized to bring this foreclosure action. While

2 ICE LEGAL, P.A.

1975 SANSBURYS WAY, SUITE 115, WEST PALM BEACH, FL 33411 TELEPHONE (561)793-5658 FACSIMILE (866) 507-9888

A. 9


Plaintiff also alleged that it owns and holds the Note and Mortgage and that it owns the

mortgage by virtue of an assignment to be recorded, (Complaint 5, 4) it did not attach a

copy of any such assignment to the complaint. Furthermore, Plaintiff did not attach any

document transferring interest in the mortgage or note to Plaintiff.

Where the attachments conflict with the allegations in the Complaint, the attachments

supersede and negate the allegations. Fladell v. Palm Beach County Canvassing Board, 772

So.2d 1240 (Fla. 2000) ("If an exhibit facially negates the cause of action asserted, the document

attached as an exhibit controls and must be considered in determining a motion to dismiss.");

Greenwald v. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 4th DCA 1983)(When there is

an inconsistency between the general allegations of material fact in the complaint and the

specific facts revealed by the exhibit, and they have the effect of neutralizing each other, the

pleading is rendered objectionable).

Accordingly, in the absence of any documents demonstrating a chain of title, the

allegations regarding an assignment are negated, and Plaintiff has failed to properly allege that it

is the real party in interest.

WHEREFORE, Defendant moves to dismiss this action on the grounds that Plaintiff has

failed to allege sufficient facts to establish that it is the real party in interest and therefore, has

failed to state a cause of action.

II. Plaintiff Failed to State a Cause of Action Because it Did Not Attach a Copy of the Instrument Upon Which the Action is Brought.

a. No copy of a note is attached.

Under Rules 1.140(b)(6) and 1.130(a) of the Florida Rules of Civil Procedure, the

Complaint should be dismissed for failure to attach a copy of the note upon which the allegations

are grounded.

3 ICE LEGAL, P.A.


A. 10


It is axiomatic that, under Rule 1.130(a) Fla.R.Civ.P., a pleading that asserts a claim for

relief based on a written instrument is subject to dismissal for failure to state a cause of action if

the instrument is not attached. Safeco Ins. Co. of America v. Ware, 401 So.2d 1129 (Fla. 4th

DCA 1981). See also, In re Estate of Vickery, 564 So.2d 555 (Fla. 4th DCA 1990) (complaint

which failed to allege or attach agreement did not state cause of action); Patriotcom v. Vega, 821

So.2d 1261 (Fla. 4th DCA 2002) (Court improperly considered documents not attached to

complaint). Here, Plaintiff did not attach a copy of the note. Accordingly, the case should be

dismissed.

b. No copy of an assignment is attached.

Moreover, because Plaintiff is not the real party in interest without an assignment of the

mortgage and note (or other evidence of a transfer of ownership), then such an assignment is one

of the documents upon which the action [is] brought under Rule 1.130(a), and therefore, must

be attached. Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990)(trial court erred in

failing to dismiss action where assignment of mortgage was alleged but not attached to the

complaint). See also, WM Specialty Mortgage, LLC v. Salomon, 874 So.2d 680 (Fla. 4th DCA

2004).

WHEREFORE, Defendant moves to dismiss this action on the grounds that Plaintiff

failed to attach copies of all documents upon which the claim is grounded as required by Rule

1.130(a) Fla.R.Civ.P.

III. Plaintiff Cannot Proceed in this Case Without Registering with the State of Florida or Obtaining a Certificate of Authority.

Defendant asks this Court to take judicial notice of the records of the Florida Department

of State, Division of Corporations which indicate that Plaintiff has not registered with the

Department as required under Florida Statutes 607.1501 (foreign corporations, certificate of

4 ICE LEGAL, P.A.


A. 11


authority), 607.1507 (foreign corporation, registered agent), and 607.0505 (registered agent,

generally).1 Section 607.0501(5) Florida Statutes provides:

(5) A corporation may not maintain any action in a court in this state until the corporation complies with the provisions of this section or s. 607.1507, as applicable, and pays to the Department of State a penalty of $5 for each day it has failed to so comply or $500, whichever is less.

In Empire Electric Co. v. R.J. Hunt Construction Company, 264 So.2d 114 (Fla. 4th DCA

1972), the Fourth District held that a company that failed to comply with statutory requirements

to file reports and pay capital stock taxes, would be barred from maintaining an action in court.2

The court ruled that, even where the delinquent company had already obtained a default

judgment, the proper remedy is to arrest judgment and withhold execution pending the

corporations compliance with the law. Empire, at 118.

Alternatively, 607.1501(1) and 607.1502(1) Florida Statutes provide that a foreign

corporation must obtain a certificate of authority from the Department of State not only to

transact business in Florida, but to access her courts:

A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.

607.1502(1) Florida Statutes.

Plaintiff has not pled any exemption from the registration requirements.

Section 607.1501 Florida Statutes provides some exceptions to the requirement to obtain

a certificate of authority. To survive a motion to dismiss, however, Plaintiff must plead that it

falls within one of the exceptions. Batavia, Ltd. v. U.S. By and Through Dept. of Treasury,

1 Exhibit A. 2 The applicable statute in Empire, 608.35 Florida Statutes, relates to Limited Liability Companies and is similar to the statute applicable here.

5 ICE LEGAL, P.A.


A. 12


I.R.S., 393 So.2d 1207, 1208 (Fla. 1st DCA 1980) (Plaintiff required to allege that it conducts no

business in Florida except that which is exempted from the registration statutes).

IV. Notice That Plaintiff Has Failed to Obtain a Non-Resident Cost Bond.

If Plaintiff seeks to proceed as a foreign corporation which is not doing business in

Florida, it must file a non-resident cost bond. Section 57.011 Florida Statutes states:

Costs; security by nonresidents.--When a nonresident plaintiff begins an action or when a plaintiff after beginning an action removes himself or herself or his or her effects from the state, he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days' notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.

Defendant hereby notifies Plaintiff that a non-resident cost bond is required and has not

been filed within 30 days of commencement of this action. After the expiration of 20 days from

the date of this motion, this additional ground for dismissal will become ripe for argument and

ruling.

MOTION TO STRIKE

Defendant moves to strike Exhibit B from the Complaint under Rule 1.140(f) of the

Florida Rules of Civil Procedure on the grounds that it is immaterial. Exhibit B is simply a self-

serving document that is not a contract or note upon which the action was brought. As such,

inclusion of Exhibit B violates Rule 1.130(a) Fla.R.Civ.P. which provides that No papers shall

be unnecessarily annexed as exhibits.

More importantly, Defendant moves to strike the Exhibit on the grounds that it is not

what it purports to be. The document is entitled Countrywide Home Loans, Inc. along with the

address of this entity in the header, making it appear as if the information on the document was

6 ICE LEGAL, P.A.


A. 13


printed on official letterhead of the company. A review of other complaints filed by the

Plaintiffs law firm, however, reveals that, not only is this kind of attachment commonly added

to Plaintiffs complaints, but that each attachment is remarkably similar, no matter which

plaintiff or servicer was purportedly providing the ledger.

Attached are the loan ledgers provided by Plaintiffs counsel in five different cases

involving different plaintiffs and different servicers:3

Case Name Case Number Servicer according to MERS Identification System4

Subject Case 502008CA031691XXXXMB Countrywide Financial Corporation, Simi Valley, CA.

(Ledger is purportedly generated by: Countrywide Home Loans, Inc. in Plano, Texas)

The Bank of New York Mellon Trust Company, v. DeLeon

502008CA028082XXXXMB HomeComings Financial, LLC

Aurora Loan Services, LLC v. Exavier

502008CA025409XXXXMB Aurora Loan Services, LLC

Nationstar Mortgage, LLC v. Roselli

502008CA019219XXXXMB Nationstar Mortgage, LLC

Federal Home Loan Mortgage Corporation v. King

502008CA024266XXXXMB [Non-Mers]

(The ledger is purportedly generated by National City Mortgage)

The striking resemblance of the letterhead of the five different servicers, as well as the

similarity of the ledger itself, is evidence that they are not, in fact, being generated by the

servicers. Instead, it suggests that they are being created by the one entity common to all five

lawsuits Plaintiffs counsel. Defendant questions the motive lurking behind the creation of a

document which appears to bear the imprimatur of the servicer. If the intent was merely to

3 Exhibit B.

4 Attached as Exhibit C.

7 ICE LEGAL, P.A.


A. 14


allege terms of the note, such allegations could simply have been included in the Complaint

without the use of a document masquerading as something it is not.

Accordingly, Defendant requests that this Court strike the document from the Complaint

and grant such other relief as may be appropriate, including sanctions.

WHEREFORE, Defendant moves to strike Exhibit B from the Complaint.

Dated November 10, 2008.

ICE LEGAL, P.A. Counsel for Defendant 1975 Sansburys Way, Suite 115 West Palm Beach, FL 33411 Telephone: (561) 793-5658 Facsimile: (866) 507-9888

By:

THOMAS E. ICE Florida Bar No. 0521655

8 ICE LEGAL, P.A.


A. 15

Sharon R. Bock Clerk of the Circuit Court P.O. Box 4667 West Palm Beach, FL 33402-4667

Roman Pino 2411 Avenida Madrid Este West Palm Beach, FL 33415-6955



I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this

November 10, 2008 to all parties on the attached service list.


By:


SERVICE LIST

Kelly M. Williams, Esq. LAW OFFICES OF DAVID J. STERN,

P.A. 900 South Pine Island Road Suite 400 Plantation, FL 33324-3920

[email protected]

9 ICE LEGAL, P.A.


A. 16

mailto:[email protected]

IN TH.ECIR.cUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION CASE NO: 50 2008 CA 031691 XXXX MB A W ................................ -

THE BANK OF NEW YORK MELLON FIKJA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-0C8, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-0C8.

PLAINTIFF VS.

ROMAN PINO; UNKNOWN SPOUSE OF ROMAN PINO IF ANY; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE , WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; MIL-LAKE HOMEOWNERS' ASSOCIATION, INC.; MORTGAGE ELECTRONIC REG I STRA nON SYSTEMS, INC.; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

DEFENDANT(S)

PLAINTIFF'S RESPONSE TO MOTION TO DISMISS AND MOTION FOR AWARD OF ATTORNEY FEES PURSUANT TO F.S. 57.105

Plaintiff responds to the Motion to Dismiss filed by defendant, Roman Pino and states:

1. The allegations of the Motion to Dismiss go beyond the four corners of the Complaint, and accordingly,

dismissal cannot be granted as a matter of law.

2. Moreover, the first set of allegations that the Plaintiff is not the real party in interest is at best an affinnative

defense of standing or capacity and should be plead as such.

3. The second set of allegations has been addressed by the filing of the Amended Complaint, wherein Plaintiff

has attached a copy of the Note and Assignment of Mortgage.

4. The third set of allegations is an incorrect statement of the law in that F.S. 607. 1501(2)(h) specifically

exempts a foreign corporation seeking to enforce a mortgage from the requirement to register.

5. Plaintiff has posted, or is in the process of posting a non-resident cost bond, making the fourth set of

allegations moot.

6. Plaintiff has attached a copy of the Note and Assignment of Mortgage to its Amended Complaint, making

the Motion to Strike the exhibit attached to the original Complaint moot.

7. As Plaintiff has addressed all of the issues raised in the Motion to Dismiss, and has filed an Amended Complaint attaching the Note and Assignment of Mortgage, the Defendant knows or should know that the Motion to

Dismiss is not supported by material facts necessary to support the allegations therein.

8. Therefore, Plaintiff is entitled to recover attorney's fees associated with its litigation to overcome the

Motion to Dismiss pursuant to Florida Statute 57.105:

Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be

paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim

or defense at any time during a civil proceeding or action in which the court finds that the losing party or the

losing party's attorney knew or should have known that a claim or defense when initial1y presented to the

court or at any time before trial:

A. 17

_ (a) was not supported by the material facts necessary to establish the claim or defense; or

(b) would not be supported by the application of then-existing law to those material facts.

9. In the instant case, there is no legitimate factual or legal basis for the Motion to Dismiss, and same was clearly filed for purposes of delay only.

10. Pursuant to F.S. 57.1 05(4), this motion is being served but not filed with the Court unless, within 21 days

after service of this motion, the challenged Motion to Dismiss is not withdrawn or appropriately corrected by the

filing of an Answer.

WHEREFORE, Plaintiff moves the Court to deny the defendant's Motion to Dismiss, to grant Plaintirr s

Motion for Attorney Fees and for any further relief the court deems appropriate

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Response was mailed and/or faxed this

~ :lay Ofi.:ff;P, J 2009 to the following:

Thomas E. Ice, Esq. Ice Legal, P .A. 1975 Sansburys Way, Suite 115 West Palm Beach, FL 33411 (866) 507-9888 (fax)

aw Offices of David 1. Stem. P.A. 900 South Pine Island Road, Suite 400 Plantation, FL 33324-3920 (954) 233-8000 Florida Bar #: 0019232

A. 18

IN THE CIRCUIT COURT OF THE 15m JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA


~~~~~~~~~~~~~~~~~~~~~NO:50WM~OOl~1~MBAW THE BANK OF NEW YORK MELLON FIKIA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-0CS, MORTGAGE PASS-THROUGH CERTIFICA TES, SERIES 2006-0CS.

PLAINTIFF VS.

ROMAN PINO; UNKNOWN SPOUSE OF ROMAN PINO IF ANY; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWNTOBEDEADORALIVE,WHETHERSAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; MIL-LAKE HOMEOWNERS' ASSOCIATION, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION

DEFENDANT(S)

AMENDED COMPLAINT TO FORECLOSE MORTGAGE AND TO REFORM MORTGAGE

Plaintiff, sues the Defendant(s) and alleges:

COUNT I

1. THIS IS AN ACTION to foreclose a Mortgage on real property in PALM BEACH County, Florida.

2. This Court has jurisdiction over the subject matter herein.

3. On JULY 25,2006 ROMAN PINO, A SINGLE MAN executed and delivered a Promissory Note and a

PURCHASE MONEY Mortgage securing payment of the Note to the Payee named thereon.

4. The Mortgage was recorded on AUGUST S, 2006 in Official Records Book 20705 at page 1653, of the


by and possessed by the Mortgagors, a copy of the Mortgage and Noteare attached hereto as ItExhibit A".

Said mortgage was subsequently assigned to THE BANK OF NEW YORK MELLON FIKJA THE BANK

OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWAL T, INC. ALTERNATIVE

LOAN TRUST2006-0CS, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-0CS. by

virtue of the assignment attached hereto as "Exhibit B"

5. The Plaintiff owns and holds the Note and Mortgage.

6. The property is now owned by the Defendant(s), ROMAN PINO, if living and if dead, the unknown

spouses, heirs and beneficiaries of ROMAN PINO who hold(s) possession.

7. There is a default under the terms of the note and mortgage for the MAY 1, 200S payment and all payments

due thereafter.

A. 19

8. All conditions precedent to the acceleration of this Mortgage Note and to foreclosure of the Mortgage have

been fulfilled or have occurred.

9. The Plaintiff declares the full amount payable under the Note and Mortgage to be due.

10. The borrowers owe Plaintiff $ 162,336.68 that is due in principal on the Mortgage Note and Mortgage,

together with interest from APRIL 1, 2008, late charges, and all costs of collection including title search

expenses for ascertaining necessary parties to this action and reasonable attorney's fees.

11. Plaintiff is obligated to pay its attorney a reasonable fee for his services rendered.

12. Defendants, John Doe and Jane Doe, may claim an interest in the property described in the Mortgage as

tenants pursuant to a lease agreement, either written or oral. Said interest is subject, subordinate, and

inferior to the lien of the Mortgage held by Plaintiff.

13. In addition to all other named defendants, the unknown spouses, heirs, devisees, grantees, assignees,

creditors, trustees, successors in interest or other parties claiming an interest in the subject property by,

through under or against any of said defendants, whether natural or corporate, who are not known to be

alive or dead, dissolved or existing, are joined as defendants herein. The claims of any of said parties are

subject, subordinate, and inferior to the interest of Plaintiff.

14. The Defendant, MIL-LAKE HOMEOWNERS' ASSOCIATION, INC., is joined because it may claim

some interest in or lien upon the subject property by virtue of possible association liens and assessments.

Said interest is subject, subordinate, and inferior to the lien of the Mortgage held by the Plaintiff.

15. The Defendant, UNKNOWN SPOUSE OF ROMAN PINO, is joined because SHE may claim some interest

in or lien upon the subject property by virtue of a possible homestead interest. Said interest is subject,

subordinate and inferior to the interest of the Plaintiffs mortgage.

16. The Defendant(s),MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., IS joined because IT

may claim some interest in or lien upon the subject property by virtue of a MORTGAGE recorded in

Official Records Book 20705 at Page 1676 in PALM BEACH COUNTY which is inferior to Plaintiffs

Mortgage described herein.

WHEREFORE, Plaintiff prays: That an accounting may be had and taken under the direction of this Court

of what is due the Plaintiff for principal and interest on said Mortgage and Mortgage Note, and for the costs, charges

and expenses, including attorney's fees and title search costs, and advancements which Plaintiff may be put to or

incur in and about this suit, and that the Defendants found responsible for same be ordered to pay the Plaintiff herein

the amounts so found to be due it; that in default of such payments, all right, title, interest, claim, demand, or equity

of redemption of the Defendants and all other persons claiming by, through, under or against said Defendants since

the filing of the Lis Pendens herein be absolutely barred and foreclosed and that said mortgage property be sold

under the direction of this Court; that out of the proceeds of said sale, the amounts due the Plaintiff may be paid so

far as same will suffice; and that a deficiency judgment be entered if applicable and only in the event no Order of

Discharge of Personal Liability in Bankruptcy has been entered as to any of the Defendants who signed the subject

Note and Mortgage and a Writ of Possession be issued.

A. 20

COUNT II

17. This is an action to refonn the Mortgage.

18. Plaintiff hereby reaUeges and reasserts all of the allegations contained in Count I of Plaintiffs Complaint in

this cause.

19. On JULY 25, 2006 ROMAN PINO, A SINGLE MAN, for valuable consideration, executed a note and

mortgage encumbering the real property in question.

20. The Mortgage was recorded on AUGUST 8,2006 in Official Records Book 20705 at page 1653 of the


by and possessed by the Mortgagors, a copy of the Mortgage and Note are attached hereto as "Exhibit A".

21. The Note and Mortgage encumbers the real property located at 3764 MIL RUN COURT, GREENACRES,

FL 33463.

22. The legal description in the mortgage was omitted.

23. That the correct legal description on the mortgage should read as follows:

LOT 17, MIL LAKE ESTATES, PLAT NO. 3, ACCORDING TOT HE PLAT THEREOF, AS RECORDED IN PLAT BOOK 45, PAGES 23 AND 24, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE FOLLOWING SPECIFICALLY DESCRIBED PARCEL OF LAND: BEGIN AT THE NORTHEAST CORNER OF SAID LOT 17; THENCE SOUTH 01 43' 35" WEST, ALONG THE EAST LINE OF SAID LOT 17, A DISTANCE E OF 32.04 FEET; THENCE SOUTH 46 43' 35" WEST, ALONG THE SOUTHEASTERLY LINE OF SAID LOT 17, A DISTANCE OF 29.01 FEET; THENCE NORTH 49 07' 33" WEST, A DISTANCE OF 91.57 FEET; THENCE SOUTH 40 52' 27" WEST, A DISTANCE OF 0.96 FEET; THENCE NORTH 49 07' 33"WEST, A DISTANCE OF 37.00 FEET TO A POINT ON A CURVE CONCAVE TO THE NORTHWEST, SAID CURVE HAVING A RADIUS 35.00 FEET, A CENTRAL ANGLE OF 20 29' 15" AND CHORD BEARING OF NORTH 30 37' 50" EAST, THENCE NORTHEASTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 12.52 FEET TO THE NORTHWEST CORNER OF SAID LOT 17; THENCE SOUTH 69 36' 48" EAST, ALONG THE NORTHEASTERLY LINE OF SAID LOT 17, A DISTANCE OF 121.19 FEET TO THE POINT OF BEGINNING.

24. The refonnation of the mortgage will not prejudice any party to this cause of action.

WHEREFORE, Plaintiff respectfully requests this Honorable Court, reform the Mortgage to reflect the

correct legal description.

CERTIFICA TE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Complaint was sent this 12 day of Jfeb~', 2009 to Ice Legal, P.A., 1975 Sansburys Way, Suite 115, West Palm Beach, FL 33411; Mil-Lake Homeowners Association, Inc., c/o Teddy Saldavar, R.A., 3785 Mil-Lake Court, Greenacres, FL 33463; Mortgage

Electronic Registration Systems, Inc., c/o Corporate Counsel, 1818 Library St, Suite 300, Reston, VA 20190; Jane

Doe nlkla Elvira Martinez, 3764 Mil Run Court, Greenacres, FL 33463

08-95787 CWF

nna Evert Law Offi of David 1. Stem, P.A. Attorney for Plaintiff 900 South Pine Island Road SUITE 400 Plantation, FL 33324-3920 (954) 233-8000 Bar #: 0019232 A. 21

~ .. ~ -...

ADJUSTABLE RATE NOTE (LIB OR Six-Mon~ Ind~x (As Publi$hed In The Wall Street Journal) - Rate Caps)

THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHA'NGES IN MY INTEREST RATE AND MY MONTHLY PAYMENT. THIS NOTE UMITS THE AMOUNT MY INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE I MUST PAY.

July 26, 2006 [Date)

CORAL SPRI NGS [City]

3764 MIL-RUN COURT ,'GREENACRES, FL 33463

[property Address]

1. BORROWER'S PROMISE TO PAY

FLORIDA [Slate]

In return for a loan that I have received, I promise to pay u.s. $162,400.00 (this amount is called "Principal"), plus interest, to the order of Lender. LenderisS11yer State Financ1al Services, Inc. d/b/a Silver State Mortgage .

I wiU make all payments under this Notein the form of cash, check or money order. I understand that Lender may transfer this Note. Lender or anyone who takes this Note by transfer and who is entitled

to receive payments under this Note is called the "Note Holder."

2. INTEREST, Interest will be charged on unpaid p~incipal until :the full amount of ~rincipal has been paid. I will pay interest at ~

yearly rate of 6.876 %. The interest rate I will pay may change in ac~ordance with Section 4 of this Note. The interest rate required by this Section 2 and Section 4 of this Note is the rate I will pay both before and after any

default described in Section 7(B) oftbis Note.

3. PAYMENTS (A) Time and Place of Payments I will pay principal and interest by making a payment every month. I will make my monthly payments on the first day of each month beginning on September 1,2006

I will make these payments every month until 1 have paid all of the principal and interest and any other charges described below that I may owe under this Note. Each monthly payment will be applied as of its scheduled due date and will be applied to interest before Principal. If, on August 1,. 2036 , I still owe amounts under this 'Note, I will pay those amounts in full OIi that date, which is called the "Maturity Date."

Iwillmakemymonthlypaymentsat P.O. ,Box 230220, Las Vegas, NV 89105

or at a different place if required by the Note Holder. , (8) Amount of My Initial Monthly Payments Each of my initial monthly payments will be in the amount of U. S. $ 1 J 066 86 . This amount

may change. (C) Monthly Payment Changes Changes in my monthly payment will reflect changes in the unpaid principal of my loan and in the interest rate that I

must pay. The Note Holder will determine my new interest rate and the changed amount of my monthly payment in accordance with Section 4 of this Note. '

MULTISTATE ADJUSTABlE RATE NOTE - UBOR SIX-MONTH INDEX (AS PUBUSHED IN THE WALL STREET JOURNAL) -Single Family - Fannie Mae UNIFORM INSTRUMENT Amended for Rorfda

.838N(FL) (0005)

Fonn 3520 1/01

VMP MORTGAGE FOfWIS - (800)521-7291 n ~ Page 1 of 4 Inillals: ~

A. 22

Return To: SILVER STATE FINANCIAL SERVICES, DBA SILVER STATE MORTGAGE 2485 Village View Dr1ve. 3rd Floor. Henderson. NY 89074

Thj~ document was prepared by:

Record & Return to: Citizens Title . 301 210 N University Dr.~ Sm\e Coral Springs, Fl 33071

, Loan Number: 2200054676 ~~: 100163122000546165

1111111111111111111111 CFN 20060462161 OR BK 20705 PG 1653 RECORDED 08/08/2806 15#22:42 PallD Beach .County, Flo~ida AlIT 162,400. H Deed Doo 568.40 Intang 324.80 Sharon R~ Bock,CLERX & COMPTROLLER eus 1653 - 1675J (23pgs)

----------ISpact Above Thb Lint For Recording Dlla) .

MORTGAGE MIN 100163122000546765

DEFINITIONS

Words used in multiple sections of this document are defined below and other words are defined in Sections 3, 1 I, 13. 18, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 16. . /

(A) "Security Instrument" means this docwnent, which 1s dated July 25 , 2006 together with all Riders to this document. /. (B) "Borrower" is ROMAN PI.NO a $1ngle may

Borrower is the mortgagor under this Security Instrument. (C) t'MERSn is Mortgage Electroni~ Registration Systems, Inc. MERS is a separate corporation that is acting soleJy as a nominee for Lender and Lender's successors and ASsigns. MERS Is the mortgagee under thb Security Inslrument. MERS is organiied and existing Wlder the laws of Delaware, and haS an address and telephone number of P.o. Box 2026, Flint, M1 4850)2026, tel. (888) 679-MERS. (D) "Lender" is Sl1ver State Financ1al Services, Inc. d/b/a S1lver State Mortgage

FLORIDA-Single Family-Fannie MaelFreddfe Mac UNIFORM INSTRUMENT WfTH MERS Form 3010 1101

-6A(Fl} (0005)03 (I)

Pslg81 01 16 fnlllllla:\l

VUP MonOI!09 SoIulloN. Inc..

n __ 1 ...... "-,"',.. 11'""\ _ ___ ... "' ... " A. 23

Lender is a corporat10n organized and existing undoT the laws of Nevllda Lender's address is 2485 Yfllage View Dr 3rd Floor, Henderson, NV 89074

(E) "Nole" means the prToiSS ry note signed by Borrower and dated July 25 2006 . The Note scates that Borrow owes Lender one hundred sixty-two thousand four hundred and 00/100 Dollars (U.S. $162,400.00 ) plus interest. BOllower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than August 1, 2036 (F) ''Property'' moons the property tbat is described below under the heading "Transfer of Rights in the Property. r' (G) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and late charges due under the Note, and aU sums due under this Security Instrument. plus interest. (H) ''JUden'' means all Riders to this Security Instrument that ore executed by Borrower. The following Riders are to be executed by Borrower [check box as applicable):

[i] Adjustable Rate Rider o Balloon Rider OVA Rider

o Condominiwn Rider 0 Second Home Rider o Planned Unit Development Rider 0 J -4 F amity Rider [i] Prepayment Rider [i] Other(s) [specify]

INTEREST-ONLY ADDENDUM TO ARM RIDER

(I) "Applicable Law" means all controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable finBI. non-appealable judicial opinions. (J) "Community Association Dues, Feei. and Assessments" means all dues, fees, assessments and other charges that are imposed on Borrower or the Property by a condominium association, homeowners associ at jon or similar organization. (K) ''Electronic Funds Transferu means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic tenninal, telephonic instTument, computer, or magnetic tape so'as to order, instruct, or authorize a financial institution to debit or credit an accounl Such tenn includes, but is not limited to, point-of*sale transfers, automated teller machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers. (L) "Escrow Items" means those items that are described in Section 3. (M) "Miscellaneous Proceeds' means any compensation, settlement, award of damages, or proceeds paid by any third party (other than insurance pr.oceeds paid under the coverages described in Section 5) for: (j) damage to, or destruction of, the Property; (ii) condelJUlation or other laking of all or any part of the Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property. (N) "Mortgage Insurance" means insurance protecting Lender against the nonpayment of. or default on, the Loan. (0) ''Periodic Payment" means the regularJy scheduled amount due for (i) principal and interest under tbe Note. plus (ii) any amounts under SectiOD 3 of thi:; Security Instrument

-6A(Fl) (0005).0) ~

~ - - I _""..,"",.. , ..... _ . .. '" _ ....

1nI1131':kP Form 3010 1/01

A. 24

Prl;lued by; DAVID J. STERN, ESQ Raord .lRetum to; 900 South Pine b land Road Suite.

Pl!rsuant to the provisions of Sec. 689.071, Florida Statutes, the within named Trustee has the power and authority to protect; conserve and to sell, or to lease, or to encumber, or otherwise to manage and dispose of the above-described mortgage and the real property encumbered thereby.

In Witness Whereof, the said Assignor has hereunto set his h,~a.ocIlJLU proper corporate officers and its corporate seal to be he

Signed in the presence of: INC.

ATTEST:

STATE OF =flor~\l\c'

. COUNTY OF :Bt"-h..~

PERSONALLY APPEARED BEFORE ME, the-undersigned authority in and for the aforesaid county and state, on this thel9th day of September, 2008, within my jurisdiction, the within named CHERYL SAMONS who acknowledged to me that (s)he is ASSISTANT SECRETARY and that for and on behalf of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and as its act and deed (s)he executed the above and foregoing instrument, after first having been duly authorized by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. to do so.

WITNESS my hand and official seal in the County and State last aforesaid this 19th day of September, 2008

NOTAlWPVB "'''''' tJC.8fAIMt 0,8 fIB ~8~ .... I, 'IT.' '5 l" .l'L.{},nd'A !~W\ '~lerie Nemes \!IIfI/ CommIsSion # DD80 """ ........ Expires AUG 3230

BOliDEDllfRu An..Wr, .19,2012 C BOlmING co., INc.

NOTARY PUBLIC

A. 26

IN THE CIRCUIT COURT FOR THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 20060C8, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-0C8.

Plaintiff,

vs.

ROMAN PINO; UNKNOWN SPOUSE OF ROMAN PINO IF ANY; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; MIL LAKE HOMEOWNERS' ASSOCIATION, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION,

Defendants. ___________________________________/


CASE NO.

50 2008 CA 031691XXXX MB

DEFENDANT, ROMAN

PINOS, MOTION FOR

AWARD OF ATTORNEY FEES PURSUANT TO FLORIDA

STATUTES 57.105 AND MEMORANDUM IN

OPPOSITION TO

PLAINTIFFS MOTION FOR

AWARD OF ATTORNEY FEES

Defendant, ROMAN PINO, opposes Plaintiffs Motion for Award of Attorneys Fees

Pursuant to Florida Statute 57.105 and moves for his own award of attorneys fees against

Plaintiff, THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS

TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN


A. 27


TRUST 2006-0C8, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-0C8, and

its counsel for having filed Plaintiffs motion. In opposition to Plaintiffs motion, and in support

of his own motion for sanctions, Defendant states as follows:

I. Plaintiffs Decision to Amend the Complaint Concedes the Merit of Defendants Motion to Dismiss.

In what can only be described as a bullying tactic designed to steamroll any opposition to

its meritless pleadings, Plaintiff has moved to sanction Defendant for having the temerity of

moving to dismiss the Complaint.1 In its motion, however, Plaintiff concedes that it needed to

amend its complaint to attach documentation that Defendant argued was missing:

The second set of allegations [of Defendants Motion to Dismiss] has been addressed by the filing of the Amended Complaint, wherein Plaintiff has attached a copy of the Note and Assignment of Mortgage. 2

Plaintiff also conceded that it must file a non-resident cost bond and promised to post

one.3 Plaintiff, therefore, recognized that Defendants Motion to Dismiss had sufficient merit

that Plaintiff needed to amend the Complaint and post a bond. Plaintiff cannot convert a

defensive pleading that initially had merit into one that is sanctionable by correcting the defects

alleged in the defensive pleading.

Moreover, Plaintiff represents to the Court that there is no legitimate factual or legal

basis for the Motion to Dismiss, and same was clearly filed for purposes of delay only.

(emphasis added). The claim that the Motion to Dismiss was filed for purposes of delay even

after Plaintiff has conceded the motions merit on more than one point can only be

1 Plaintiff's Response to Motion to Dismiss and Motion for Award of Attorney Fees Pursuant to F.S. 57.105, certified as having been served February 12, 2009, but which arrived in an envelope postmarked the following day. (Plaintiffs Motion)

2 Plaintiffs Motion, 3.


2 ICE LEGAL, P.A.


A. 28


characterized as fraudulent. This claim is not supported by the facts and is sanctionable under

57.105.

II. The Remainder of Plaintiffs Response to the Motion to Dismiss is Equally Without Merit.

A. To the extent the motion to dismiss goes beyond the four corners of the complaint, Defendant moved for summary judgment.

Plaintiff claims that [t]he allegations of the Motion to Dismiss go beyond the four

corners of the Complaint, and accordingly dismissal cannot be granted as a matter of law.4

Plaintiff neglected to advise the Court that Defendants motions was presented in the alternative

as a Motion for Summary Judgment:

To the extent that any of these motions require evidence outside the four corners of the Complaint, Defendant moves, in the alternative, for summary judgment on the stated grounds. 5

Plaintiffs statement, therefore, is not only incorrect, but is an attempt to mislead the

Court.

B. Standing can be addressed by a Motion to Dismiss.

Plaintiffs second argument is that real-party-in-interest and standing arguments can only

be raised as an affirmative defense, not by way of a motion to dismiss:

Moreover, the first set of allegations [of Defendants Motion to Dismiss] that the Plaintiff is not the real party in interest is at best an affirmative defense of standing or capacity and should be plead as such. 6

It is telling that Plaintiff has not cited a single case for this proposition that standing or

real-party-in-interest arguments cannot be raised by a motion to dismiss. The appellate courts

regularly address standing issues that were raised by motions to dismiss. Mills v. Phillips, 407


5 Defendant, Roman Pinos, Motion to Dismiss Complaint, Motion to Strike, and in the Alternative, Motion For Summary Judgment, p. 2.


3 ICE LEGAL, P.A.


A. 29


So.2d 302 (Fla. 4th DCA 1981); Public Health Trust v. State, 751 So.2d 112 (Fla. 3d DCA

2000).

In this case, Plaintiffs lack of standing was apparent within the four corners of the

Complaint. Because the attachments contradicted the allegations of the Complaint, the

allegations that the Plaintiff is the owner and holder of the Note and Mortgage were negated

under Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000) ("If an

exhibit facially negates the cause of action asserted, the document attached as an exhibit controls

and must be considered in determining a motion to dismiss."). See also Greenwald v. Triple D

Properties, Inc., 424 So.2d 185, 187 (Fla. 4th DCA 1983)(When there is an inconsistency

between the general allegations of material fact in the complaint and the specific facts revealed

by the exhibit, and they have the effect of neutralizing each other, the pleading is rendered

objectionable).

Not only was the original complaint subject to dismissal for attaching documents to

which Plaintiff had no discernable title, the amended complaint is still defective for the same

reason.

C. Plaintiff failed to allege that it is exempt under 607.1501(2)(h).

Next, Plaintiff claims that Defendant misstated the law when he argued that Plaintiff must

register with the state of Florida or obtain a Certificate of Authority. A further reading of

Plaintiffs argument, however, reveals that Defendant did not misstate the law. Rather, Plaintiff

is claiming an exception under that law:

The third set of allegations [of Defendants Motion to Dismiss] is an incorrect statement of the law in that F.S. 607. 1501(2)(h) specifically exempts a foreign corporation seeking to enforce a mortgage from the requirement to register.7

7 Plaintiffs Motion, 4. 4


A. 30


Defendant, however, anticipated this response and specifically argued that Plaintiff must

plead that it falls within one of the exceptions. Batavia, Ltd. v. U.S. By and Through Dept. of

Treasury, I.R.S., 393 So.2d 1207, 1208 (Fla. 1st DCA 1980) (Plaintiff required to allege that it

conducts no business in Florida except that which is exempted from the registration statutes).

Plaintiff still has not responded to this point.

III. Because Plaintiff Has Amended Its Complaint, the Original Motion to Dismiss is Now Moot.

Because Plaintiff has amended the Complaint, the initial Motion to Dismiss has become

moot and Defendant must now respond to Plaintiffs amended pleading. Accordingly, even if

the Motion to Dismiss had been without merit, its content is now irrelevant because it was

directed to a pleading that Plaintiff has effectively withdrawn. There being absolutely no legal

basis for requiring Defendant to withdraw a Motion to Dismiss that is moot, it is Plaintiffs

motion for 57.105 sanctions that is not supported by the material facts necessary to establish

the claim Accordingly, Plaintiff should withdraw its motion for sanctions or face sanctions

itself for having improperly sought them.

IV. Plaintiffs Amended Complaint Creates More Problems than it Resolves.

A. The Note is not endorsed to Plaintiff.

Plaintiff alleges in its motion for attorneys fees and its Amended Complaint that a copy

of the Note it seeks to enforce is attached to the Amended Complaint. The attached Note,

however, is accompanied by an allonge that transfers the Note from the original lender, Silver

State Financial Services, Inc. d/b/a/ Silver State Mortgage, to Countrywide Bank, N.A.

Needless to say, Countrywide Bank, N.A. is not the Plaintiff in this case. Once again, because

the attachments negate contrary allegations in the Complaint, Plaintiff has failed to allege that it

is the owner of Defendants Note.

5 ICE LEGAL, P.A.


A. 31


B. The Assignment appears to be fraudulently backdated.

One of the grounds of Defendants Motion to Dismiss was that Plaintiff had failed to

attach an assignment to transfer the mortgage from Mortgage Electronic Registration Systems,

Inc. (MERS) to Plaintiff. Plaintiff attempted to correct that defect by attaching an unrecorded

Assignment of Mortgage to the Amended Complaint.

The Assignment of Mortgage is executed by Cheryl Samons as Assistant Secretary of

Mortgage Electronic Registration Systems, Inc. It will be undisputed that Cheryl Samons is

actually an employee of David J. Stern, P.A. Plaintiffs counsel in this case. Plaintiffs

counsel, therefore, has created and executed an instrument which not only purports to transfer a

property interest to counsels own client, but which constitutes the evidentiary lynchpin of that

clients case.

More importantly, even though the assignment was not attached to the original complaint

when it was filed September 24, 2008, the assignment purports to have been executed five days

earlier on September 19, 2008. The signature of Cheryl Samons is witnessed by Michele Grant

and Esther Otero and notarized by Valerie Nemes. These three individuals work in the Litigation

Department of Plaintiff counsels firm, rather than the Foreclosure Department. Michele Grant

is a Litigation Legal Assistant, and specifically, the Legal Assistant to Donna Evertz, Esq., the

Litigation Attorney now handling this case.

The Litigation Department of Plaintiff counsels firm is not assigned to cases until they

are contested. This means that the Litigation Department employees witnessing and notarizing

the Assignment of Mortgage would be involved only if the case was already filed and contested.

Of the approximately seventy-five Assignments of Mortgage executed by Ms. Samons which

were located for the five-week period surrounding the execution date the subject Assignment, not

6 ICE LEGAL, P.A.


A. 32


one was witnessed and notarized by the Litigation Department employees who were involved

with the subject assignment.

Among the hundreds of assignments executed by Ms. Samons, Defendant has located

only one other assignment witnessed and notarized by Litigation Department employees,

Michele Grant and Valerie Nemes. (Exhibit A) That assignment was purportedly executed by

Ms. Samons on June 19, 2007 three days before the related foreclosure case was filed.8 The

notarys stamp, however, indicates that Ms. Nemess commission expires on August 19, 2012.

Because notary commissions are issued for periods of four years, the stamp had to have been

issued no earlier than August 20, 2008. Indeed, according to the Florida Department of State,

Ms. Nemess commission was, in fact, issued August 20, 2008 (Exhibit B). Therefore, Ms.

Nemes somehow notarized Ms. Samonss signature 14 months before her commission and the

associated stamp was issued. There can be no doubt that all those who participated in the

execution, the witnessing, and the notarizing of this Assignment of Mortgage did so fraudulently

and with the intent of committing fraud on the court.9

As in the instant case, the fraudulent assignment was executed in a contested case and

was witnessed and notarized by persons employed in the Litigation Department of Plaintiffs

8 Wells Fargo Bank v. Acosta, Case No. 502007CA010018XXXXMB. Filing date June 22, 2007. 9 This fraudulent backdating of assignments appears to be a pattern with Plaintiffs counsel. Michelle Camacho purportedly notarized a Samons assignment of mortgage on November 1, 2007, and another on December 14, 2007, even though her commission did not issue until months later on March 25, 2008 (Exhibits C1, C2 and D). Sabrina Romero purportedly notarized a Samons assignment of mortgage on September 20, 2007, even though she did not become a notary until November of that year (Exhibits E and F). Shannon Smith notarized a Samons assignment of mortgage on September 26, 2008, but swore that Ms. Samons had executed the document before her nearly a year earlier (October 5, 2007) at a time before she even became a notary (Exhibits G and H). Ericka Iglesias witnessed and notarized an assignment on February 17, 2007 over 14 months before her commission was issued. (Exhibits I1 and J) Ms. Iglesias also notarized assignments on November 26, 2007 and December 21, 2007 both before her commission was issued (Exhibits I2 and I3).

7 ICE LEGAL, P.A.


A. 33


counsel. Because Ms. Samons has executed hundreds, if not thousands, of these assignments

without the assistance of the Litigation Department, it is a remarkable coincidence or

extraordinarily god-like prescience for the Litigation Department to have singled out these two

cases as ones that would be contested even before the cases were filed.

Defendant, therefore, submits that the Assignment of Mortgage was executed after the

case was filed and fraudulently backdated so as to avoid dismissal under Jeff-Ray Corp. v.

Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990). Defendant has initiated discovery to prove these

factual allegations, and upon doing so, will move to dismiss this case for fraud upon the Court.

WHEREFORE, Defendant requests that Plaintiffs Motion for Award of Attorney Fees

Pursuant to F.S. 57.105 be denied and that Defendant be awarded attorneys fees under 57.105

Florida Statutes for having to bring this motion.

Dated February 17, 2009.


By: THOMAS E. ICE Florida Bar No. 0521655

8 ICE LEGAL, P.A.


A. 34



I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this

February 17, 2009 to all parties on the attached service list In accordance with 57.105(4), this

motion will be filed after 21 days if the challenged Motion for Award of Attorney Fees Pursuant

to F.S. 57.105 is not withdrawn.


By:


SERVICE LIST

Donna Evertz, Esq. LAW OFFICES OF DAVID J. STERN, P.A. 900 South Pine Island Road Suite 400 Plantation, FL 33324-3920

(954) 233-8000 Plaintiffs counsel

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. c/o Electronic Data Systems Corporation 3300 SW 34th Ave., Suite 101 Ocala, FL 33474

9 ICE LEGAL, P.A.


A. 35

CFN 20080363902 OR BK 22889 PO 0 RECORDED 18/13/2118 Pol. leoGb CGUDt,. Sh_ R. Bock, CLEIIl , ~1P't!1I01.Jl.RR

inUl.QU ttto.-s.:&!CO

I,'LUIZ" ~"f'III" , I

':;d-i '" (..~

~:.:

PI 1KI84, 11",1

TIIillp;KC il rot

ASSIGNMF.NT OF MORTGAGE

KNOW All MEN BY '"ESE PRESENTS:

J'IIATMORTGAOE CL~~~IC REOISTRA nON 5YST5MS, INC. ~ ..... ",-: .. ~

11m in dui8l'1IIed 11$ lhe USi8!i'" in comidv.diun or lhe lum of SI.Q1J DolLn-llIId 0Iha" sood and nluabl: considcraticm.lb: =cipI ofwbldl .... ~~ IIdnowlalgcd. d_ hmby granl.Impin.II:I1, auisn.lnlnlrcr I11III .. om\lIIIO WELLS FAROO n"'''K, ~.A. .... i!I8 or located 313416 STATIiVIEW BLVD., FT. NIJ.I .. 5C 2971' I!creID dosigrUIlc:d .Ihe DSlianc". the mor1bc;?~lcd bY OSCAR ACOSTA. D lingle man and VERONICA MEJIAS RECABARREN, a sln81e "'DlMft n:cunJ~PALM BEACH Counly, I'loridaat book 20087I11III page 977 mcumllafnS 1ft proprny mllfe panlcawt, Ib:n'bc:d DI ~~,

(,::;: LO'f 231. OF STONElIAVEN P.V.D .. PLA'f~:~tco. RDlI\/C 'f0 THE PLAT THEAROF, AS RF.coRDED IN PLAT BOOK 9'7. PAGF. 't. OF nlF. PUBUt~RDS OF PALM BFoACH COUI\-rv, FLORIDA

... I':~ IO&Clhcr __ Ith the note lind ellth and every Dlhu obllitlon ckscrihrd 1ft said monsnge Rnd t1~ money due IJItd 10 become dvc"'_1II

. 'ro HAVE AND ro HOLD Ihe same 1IIlk) Ihe raid usiSMC. its SUCCCS$OIS and IINIjns forever. bill wilhout_ o:lihc undmigncd,

ATTE,';"f;

S1'ATf. UI' FLORIDA COUNTY OJ: BROWARD

PERSONALLY APPFARE!> BEFORE Mr" Ih: undmi;ncd =1hmIy in PIlI lOr the ufonald coun1y IllllIIUIC. 011 Ibis Ihc 19111 day or June, 2007. "ilhi1l my juri!dic1ion, the wllbln nemcd CHER VI. SAMONS who ICltnowhdp 10 me Ibal (s)he is IISSISTAlIT SECllETARY oIIlIllul for end 011 bdt.lr or MORTGAGE ELECTRONIC REOlS'fRA no~ SYSTEMS, INC. UlId as ilS act;ml dmI (,)he exCClltCd lIIe ablM: and roregolng insIruman, alter rm h1vi"ll been dill)- BVlhoriud by MORTGAGE ELIlCTRON1C RECiISTRA nON SYSTEMS, INC. 10 chilO.

WIlWF.SS my hlllld IIIId olTlclal seal in IhcCounly ami Stille Wt afomaidthis llllh day of June, 2007.

~.-

Book22889/Page84 Page 1 of 1 Exh~bit A A. 36

Notaries Public

Department Menu

Commission Detail

Notary ID: 1052399 Last Name: Nemes First Name: Valerie

Middle Name: Birth Date: 08/14/82

Transaction Type: REN Certificate: DO 803230

Status: ACT Issue Date: 08120/08

expire Date: 08/19/12 Bonding Agency: Atlantic Bonding Company Mailing Address: PLANTATION, FL 33325-0000

Page J of)

[Department of State ][Notary Public Access System )[Email Us]

Aorlda Department of State Division of Corporations P.O. Box 6327

Tallahassee, FL 32314 Phone (850) 245-&945

http://notaries.dos.state.fl.uslnotidsearch.asp?id= 1052399

Exhibit B

211712009 A. 37

.'. "

, '1. .",' .. 11,' .. IIM-. + .' ~ ....... ,,~,.. ..... .... ~ 1-:-""~II'h ...... '.'

" ..... ;... .. H.:4 \:.I: .... blt;; .. W~

ASSU;N:\lEN! or l\WRTGAGE

A',\'OW ~ILL .\1."1 B i' T.IIESE rRESENl'S,

L

In~U1lm~DUlgnIRgIIDaUIBI

CFN 20080361966 ~ OR OK 22886 PG 040 RECORDED J 1lI/02/2ee8 98 :2!h 1 Pol. Beach CDunty. FlDrida SharDn R. Boell.CLERK , COftPTROI.LER Pg 8403; Ilpgl

Till T MORTIi,\GE ar,c mOO-lie REG1Sllt,\ liON SYSI DIS. INC.

I:,,,.I,"~,,, "".,,,,,1,:: ,f .. 1I0MH',,~m:(iS rf';"I.II,\1 . II (' (t'l;F ''''l(lI)I,\~ ntoSSI~I;. SII: 1UQ.MI~~.I:.'I''-'L1S /.It ... , IB h':I~.n .I":"r.r~.u"t,:, .. tJ .... _"~! .. I1t .... (ttl' .11:...1 II' ":'OChl.h:l.a:U-.n III ~t . .: J:I'1 dl ~1 ';'1 1)"II.u Jnd o~tI(r r"'lJ .tOO ,;tJu.lh .. ,-un'lolo :USlnn lh,' 1~""C~rll of "'hi,l: 1 .. I~ttthy.~Ct.-.I:II\' ;t.lIt"'u. ltt~ .... ht:"""~ ,'.!.Ihl. h.lfl'.ml. ~I .. ,,, ~n Uotn"r!;, OJn~1 ~tllner un:o nil; M:-''' 01' ~1'," ,()It" I1U;~1 t'I)M!''''I~I'', '" ,\ \s ,\1:( lI:SSlllt III 11'\10110:\1\ ('II,\'iI:lI"'" N." .\~ 1I111STlT "'''''''r." h.cd ;,' {':n 1I0Mll'IIMISl.i~ n~A ":CIr\l , 1.1 ( ,liN! MI:JIII lIA;\ ('I!O~MN( i, ~ I I', I'"', :I.11"NEAI~ JI.I~. ),1:-1 S;~!.' :, .

~----IIIIIIIIIIIIIIIIHII~I.UI.III.I!! III CFH 2888824983J. . .. .... OR BX 22'734 PIJ J.32 ~ IliQlHDJD II7I1a121U l8aMa4 ~ h1II .... c:-\" nGrida ,._ ShDraD It. .... a.IBI & cm""lIWlR Pg 1322, Clpg'

IOpII= .. lib Iho _lIIld cadi ami nay oUtcf nbllpIion dcJaihed in SII~ moI1P3Cami lhe money 1M Iftd 10 '-'me duo IhCIWD

10 HAVE AltO "1'0 HOLD 111: _ liliiii lilt Aid ~ lis __ II2d mfIns I"otc\ou. but wItItAI rc:D\Ifte 011 Ik ~ndmipxd.

PwsuanIIO !be JIfO'IlsionJ at Sec. 689.071. FIoride !i~ I~ wilhlD naDIIXI TMIcC 11M the power Iftd authority 10 plOIecI, -..c IIId ID Idl or ID IcGsc. or 10 _=, or oWrwtse to ibcd IIIOItp&I: IIId Ihc rc8I propcdJ ~ 1bcRby.

t" If'lIIIm Wtuntlf;1IIc IIIId t\sslpJr IliIII ham1o SCI bil hMd IIDCI sc oll'o:cn I11III lis CIItpIhle sal 10 be bcfcW II.fIIud ':.-_-__ ~

Sipcd ia Ihr pmt::IICC or:

A1TEST:

Exhibit C 2 Book227~age1322 Page 1 of 1

A. 39

Notaries Public

Department Menu

Commission Detail

Notary 10: 742846 Last Name: CAMACHO First Name: MICHELLE

Middle Name: L. Birth Date: 02109/64

TransactJon Type: REN Certificate: DO 760715

Status: ACT Issue Date: 03/25/08

expire Date: 03124112 Bonding Agency: Florida Notary Discount Association Co. Mailing Address: 8670 NW 38 ST #276

SUNRISE, FL 33351

[Department of State ][Notary Public Access System ](Email Us]

Florida Deparbnent of State Division of Corporations P.O. Box 6327

Tallahassee, FL 32314 Phone (850) 245-6945

http://notaries.dos.state.f1.us/notidsearch.asp?id=742846

Page' of'

Exhibit 0

2117/2009 A. 40

ST II rn 01' FtOlUOII COliNO' OF UROWAJU)

IIIIIUllm~lumalm.111181111 CFN 200803&181& OR BK 22885 PG .1919 IIECO!DIlD 10/0112008 16.36. 7 1'111. lIoacil Couat,. narJcIe SIIoron R. 8DC1c. CI.ERS & cmltnlO_11J1 "LEIno '9 1901 Upg,

~1.I.y APPEARED Util-'ORE ME.1lIf llIIIa!ipcd aulh=il)" ill em! far Ihc aforaahl coumy II1II SIlk. va IIIIs lilt 2GIb dIIy ofSq\t:m!lcr. ZIlO"I. wiIhIn 111)' jwbdicticn, the ~ ntmcd CHERYL ~ who IElDOWlcd&alIO me \bQt(l)llc sASSISTIINT SECRTAltY I1IId dial forenclcmbchl!fol'MOIlTOAOI! n6CTRONIC REGlsntATlON SYSl'EMS.INC. em! ii, LlCI Dad detd (,)1Ie ex_ell lhe abo"" GAll rorcallillll iulNman. ISler rom ""-In; been wi, IlUlhorlzed ~ MOlTOAOIl ELECrnONIC REGISI"RA 1'111 SYS11lMS.INC. III do III.

WITNESS my hind IIId olrldal seal ill die Cotm7 and SIak ..... .rUftMillIllls ZOIh day of s.,.

Exhibit E Book22885APage1989 Page 1 of 1

A. 41

Notaries Public

. --'-'. - .. -Department Menu

Commission Detail

Notary 10: 1210635 Last Name: Romero First Name: Sabrina

Middle Name: Birth Date: 12114/81

TranaactJon Type: NEW Certificate: DO 733649

Status: ACT Issue Date: 11/09107

Expire Date: 11/08/11 Bonding Agency: Huckleberry Notary Bonding, Inc. Mailing Address: Davie, FL 33317

Page J of I

[Department of State ][Notary Public Access System] [Email Us]

florida Department of State Division of Corporations P.O. Box 6327

TallahasseG, Flo 32314 Phone (850) 245-6945

http://notaries.dos.state.fl.uslnotidsearch.asp?id=121 0635

Exhibit F

211712009 A. 42

CFN 20080363857 OR BK 22889 PO (II RECORDED lel83/2eea Palm Beacb Cowt)'. Shana R. Boak. CI.ERI & Cll)lPtimtJLRR P9 8e36J 11,,_

1'hi$

ASSIGNMENT OF MORTGAGE

W~~~ I'ri1lINIIII~"4 STATEOFfI.ORIDA COL'NTYOI'I'ALM UI1ACII

PERSONAI.LY APPEAR!'.D IIEFOU ME, Ill. U11dus18l'ed IIIllhority m Cld ror!he .fOJaald COWl!)' amf II&1c, em 1II1s lhe OS Illy 01' OCTOBF.R. 2Il0'l. wilhm my jurbdlcllull. IIoc wiIIIIn IIInICd CHIlRYL SA. ... ONS..no ICIutowItd8cd 10 111; 1II:41.)bc It ASSISTANT 5F.CRRTAR Y IIIId \hat ror amf 11ft todIaII' ofMORTOiWE ELECTRONIC Rf.GIS11lA nON SVS11:MS. INC, mI lIS III ICI and deed (s)he occutcd sh ...... ..at ruoqulnclnst-. 8Ikt rlQlluI~~ ken dur, ealllotbcd II)' MORTGA() ELECTROloo1C RGt!l11tJmON SYSTEMS. INC 10 do to.

WI~t.'iS..., hind II1II oIf"lCiUocaI .a!he t:o..myam! SIaIc bsllfomaid dIis ~ ~'~

NOI'ARY PUBUC ,

, '.

Exhibit G Book22889/Page36 Page 1 of 1

.....

A. 43

Notaries Public

. Department Menu

Commission Detail

Notary 10: 1225454 Last Name: Smith First Name: Shannon

Middle Name: Birth Date: 07/03/84

Transaction Type: NEW Certificate: DO nS121

Statua:ACT Issue Date: 04/14108

expire Date: 04/13112 Bonding Agency: Huckleberry Notary Bonding, Inc. Mailing Address: 900 S. Pine Island Road

Suite 400 Plantation, FL 33324

[Department of State][Notary Public Access System][Emaii Us]

Florida Department of State Division of Corporations P.O. Box 6327

Tallahassee, FL 32314 Phone (850) 245-6945

Page I of I

Exhibit H

http://notaries.dos.state.fl.uslnotidsearch.asp?id=1225454 211712009 A. 44

~ ".0\ " ... 'J> t:;"-, \~ .. ")() .....

",',; 'l~ c ... -.;;?,;

.of 10'" '~ ..

-~ 9::'ao --........ r.w..t .......... nJUH-lm II I '~,d:;:.r

,

IIII~mmIIIiOllnlnlll.11I11I CFH 20080250257 OR BK 2273& Po 0538 RECORDED 07102I200I 14:52.12 Pal_ IIoach CDaDt" F1Drlda 511_ R. IIoakoCLERI ~ IDIlPIn._III_UIlLl' .... :. P, 0538, UPI'

AssIGNMENT OF MORTGAGE C-~i

mOJY..u. MEN Br~~~ PRESENTS: m.tTMOR.TOAOE ~.[tEOISTRATlOH SYSTEM8,1NC.

2".~. Rald!a&1Ifa-d81 do IiMAC ~LLC, IIDlIVIROIlIIADIUVI!, ft. WASHlNGTOI'f. fA 19Q]4,lacbulqllllld III ~ mIpa. for lad 11\ ccmsIdcniII C~ l\UD oCSI.OO Dollar ami OIhcr good I!IId valWlbI; colISldctelloD.llle ned" or wltkb 1sbrcb71CJcDgw!cd;a!. docI ~ DCIl. .qn, trwfcrlllld set ow:rlllll1t DEUr.lCH2 BA)I,'!C. 1U.llONAt. TRUST COMPANY. AS lNDamJIU! TR Eft THE INDEHTlJRE RELA11NG 10 IMH ASS81S CORP. COLLATERALIZED ASSET-BACK1!D 2GOS-' Iaidma Dr IuaIIcd r.1: CIO (jMAC MORTOA01!. UC liDO VIRGINIA DRIVE. Fr. WASH ::J!t~9!4 badtJ cIHlall:1lCd IS !be asia-. die mortnc CIIu:ca1Cd by JOHN ROBERT CARNEY nctmIcd I. PALM B~. t10rlda III booIc 11901 cul PI8C 186 _1II~!hI pnJpCIty more paI1lcuIIrty da1:rIbcd IS rollowJ: 1i :--5', IDI'SVIN1'EIH(l7).8LOCK 15,O"P1.ATc~P.F POLOCW8 ESTATE&A SUlIDIVISlOH IN 'ALai BEAat COUNTY, ACCORDING TO TIlE PLAT TIlalO1,UCOROED IN PLAT BOOK U. PACIT ID 011 THE PUBLIC RU:OSlOS OFPALM BEAOICOUNn'. FLO~~

eopdxr willi Ibc lIIIO IIIId cadi., CftI7 o!Mr Dbliptbm dactlbol ift sold IIICIrIp8C and tile IIIGDC1 due IIIId to -.-= '= II1tnm TO JlA VB AND TO 1/000D Iho some UllIo lite IIkt _lame. ilsl\ICICClSOIJ ud lSIians rDft'er. bul wilhoul recourse 011 IlIc 1