Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

Extrinsic Fraud

VIEWS: 8 PAGES: 7

									                IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT
                      IN AND FOR ORANGE COUNTY, FLORIDA
                         GENERAL JURISDICTION DIVISION

BAC HOME LOANS SERVICING, L.P.                       CASE #: 48-2009-CA-XXX O
F/K/A COUNTRYWIDE HOME LOANS
SERVICING, L.P.

                      PLAINTIFF

VS.

JANE DOE AND JOHN DOE, et. al.,

                  DEFENDANTS
______________________________

   DEFENDANTS’ JANE DOE AND JOHN DOE’S MOTION TO SET ASIDE THE
  CERTIFICATE OF SALE, JUDICIAL SALE, SUMMARY FINAL JUDGMENT AND
                              DEFAULT

       Defendants Jane Doe and John Doe, pursuant to Rule 1.540(b)(3) and (4) of the Florida
Rules of Civil Procedure, hereby moves the Court to set aside the judicial sale of her property
and set aside the summary judgment of foreclosure, and in support thereof states:
                                                 I
                            REQUEST FOR JUDICIAL NOTICE
       Pursuant to F.S. 90.202(6) and 90.203, Petitioner requests the Court take judicial notice of
all documents filed by Plaintiff in this action, including the Complaint, the Amended Complaint,
the Plaintiff's Motion for Summary Final Judgment of Foreclosure, Summary Final Judgment of
Foreclosure and the Plaintiffs Exhibits to Judgment, all of which were filed in that order.

                                                II
                       FACTS APPLICABLE TO ALL ARGUMENTS
       On November 30, 2009, the plaintiff filed a Complaint to Foreclose Mortgage and to
Enforce Lost Loan Documents. Count I was an action in foreclosure while Count II was an
action to enforce a lost, destroyed or stolen promissory note and Mortgage under Fla. Stat. §
673.3091.
       The Plaintiff filed a document it listed as Exhibit A which was alleged to have been a
copy of the Mortgage. The plaintiff filed a document it listed as Exhibit B which is a document
on what appears to be Countrywide Home Loans letterhead with descriptive information
pertaining to the alleged note on this case. This in no way constituted a true or correct copy of
the promissory note upon which the foreclosure was based.

       The Plaintiff filed a Motion For Summary Final Judgment of Foreclosure and Taxation of
Attorney’s Fees and Costs. The defendants request this Court take judicial notice of the motion
within the Court’s file. This document was not served upon the defendants. Further, page 2 of
the document contains no Certificate of Service. The certificate was left blank.

       The Plaintiff filed a Notice of Hearing dated April 15, 2010. This document alleges
service of the Notice was mailed to the defendants on April 15, 2010. The defendants never
received this document.

       The closure of Taylor Bean and Whitaker resulted in incorrect accounting of Ms. Doe’s
monthly payments. In fact, Taylor Bean and Whitaker’s records indicated Ms. Doe was in
arrears on the debt when in fact she was current. Taylor Bean and Whitaker was shit down by
the federal government and key figures face multiple charges for fraud in the alleged
misappropriation of hundreds of millions of dollars. See,
http://www.consumeraffairs.com/news04/2010/06/taylor_bean04.html.

       Ms. Doe was lost in the shut down of Taylor Bean & Whitaker. Eventually the plaintiff
advised her that it owned her loan. She repeatedly made attempts to pay the lender while the
lender refused alleging that the loan was in default. Ms. Doe had the available funds to make the
monthly payments - the accounting problem began with Taylor Bean and Whitaker and
continued with the plaintiff.

       The Defendant, Ms. Doe, accidentally discovered the Summons and Complaint mixed in
with mail in her home while cleaning house. Ms. Doe contacted the plaintiff as she had all
necessary funds immediately available to bring her loan current. The plaintiff assured Ms. Doe
that a resolution was being sought to correct the accounting on her loan. (See Affidavit
Attachment A) Meanwhile, the Plaintiff continued the foreclosure action, failed to provide Ms.
Doe with service of process, thereby precluding Ms. Doe from appearing in court to defend this
action.

          One day, Ms. Doe arrived home to find a bundle of papers on her doorstep with a rubber
band binding the stack. (See Affidavit Attachment A)Included within the stack was the Motion
for Default, Motion for Summary Final Judgment, the Final Judgment of Foreclosure, and the
Certificate of Sale. None of these documents were ever served prior to that time.

          The plaintiff’s complaint alleged the May 2009 payment and all subsequent payments
were in default. However, the Ms. Doe made a payment on June 4, 2009 in the amount of
$2600.00. (See Attachment A). Clearly this was a false and misleading statement by the
plaintiff in order to obtain jurisdiction of this court. Further, the Taylor Bean & Whitaker
repeatedly sent Ms. Doe false and misleading correspondence which indicated she owed past due
mortgage payments. The defendant retained copies of these letters and will present them as part
of her defense to this action.

                                                  III
                                           ARGUMENTS
                                        FIRST ARGUMENT
 THIS COURT HAS JURISDICTION TO SET ASIDE THE JUDGMENT EVEN AFTER
                         THE JUDICIAL SALE
          The Plaintiff committed extrinsic fraud through (1) its continued assertions to Ms. Doe of
finding a non-judicial resolution and (2) failure to serve the required legal documents and notices
of hearing upon the defendants. Rule 1.540(b) states in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal
representative from a final judgment, decree, order, or proceeding for the following reasons: . . .
fraud (whether heretofore denominated intrinsic or extrin- sic), misrepresentation, or other
misconduct of an ad- verse party;(4) that the judgment or decree is void.” The circuit courts of
this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to
rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time
before the sale thereof has been actually made pursuant to the terms of such decree, and to
dismiss the foreclosure proceeding upon the payment of all court costs. §702.07, Fla. Stat.
(2009)
         Further, Circuit Court Judges have the power and authority to rescind, vacate, and set
aside a decree of foreclosure of a mortgage of property even after the judicial sale. In Sterling
Factors v. U.S. Bank Nat. Ass'n, 968 So.2d 658, 662, 663 (Fla. 2nd DCA, 2007), the Court
reviewed section 702.07 and held that “section 702.07 cannot be interpreted as depriving a
circuit court of jurisdiction to set aside or reconsider a foreclosure judgment upon a proper
motion once a foreclosure sale has been held. Id.” “The Florida Supreme Court has thus
concluded that section 702.07 does not deprive a court of jurisdiction to set aside a foreclosure
judgment once a foreclosure sale occurs.” Id.
         This court retains jurisdiction to set aside the Certificate of Sale, the Judicial Sale, and
Summary Final Judgment and the Default entered against the defendants.
                                       SECOND ARGUMENT
                   INTRINSIC AND EXTRINSIC FRAUD ON THE COURT
         Failure to properly perfect service of process constitutes a void judgment. Miller v.
Preefer, 1 So. 3d 1278, 1282 (4th DCA 2009). See also, Johnson v. State of Florida Dept. of
Rev., 973 So. 2d 1236, 1238 (1st DCA 2008) (where the court stated: “It is well settled that a
judgment entered without due service of process is void.”) A void judgment may be attacked at
any time. Miller, 1 So. 2d at 1282 (2009).
         “Process against an incompetent shall be served: (a) By serving two copies of the process
to the person who has care or custody of the incompetent ...” § 48.042 Fla. Stat. (2009).
         The plaintiff committed extrinsic fraud upon this Court. The plaintiff filed notices of
service of process wherein it is alleged that Ms. Doe was served with the process. Ms. Doe was
not served and her incompetent son was served.
         Beverly Doe is a resident of the home and suffers from severe mental disabilities due to
his military service in the gulf war. Ms. Doe is the caretaker and custodian for Beverly Doe as
evidenced by the attached Social Security Administration. (See Attachment B) Evidence of Mr.
Beverly Doe’s disability will be made available for this court.
         The Plaintiff failed to serve two copies of the Summons and Complaint for Beverly Doe
upon the person who has care and custody over him - JOHN DOE. Three copies were required
in this case. Two copies of the Summons and Complaint against Beverly Doe pursuant to §
48.042 Fla. Stat. (2009) and one copy of the Summons and Complaint against Ms. Doe. The
service of process does not indicate the appropriate number of required copies were served.
       The Plaintiff intentionally kept the defendants from defending this action in Court
through promises of a non-judicial resolution of the accounting problem. The notices of hearing
were not served upon the plaintiff until after the hearings were concluded. The Motion for
Summary Final Judgment contains no valid Certificate of Service and cannot act as a verification
of service of process. This extrinsic fraud resulted in a void judgment.
                                   THIRD ARGUMENT
                              THIS ACTION WAS NOT RIPE
       A case or controversy must be ripe in order for a party to seek redress in the Florida
Courts. The plaintiff committed fraud on this court. Paragraph 7 of the plaintiff’s complaint
alleges “There is a default under the terms of the note and mortgage for the May 1, 2009
payment and all payments due thereafter.” (Complaint, para. 7) This allegation is patently false.
(See Attachment A) In fact, the accounting errors of the plaintiff and Taylor Bean & Whitaker
resulted in advanced payments by Ms. Doe and she was not in arrears.
       The plaintiff’s complaint alleged the May 2009 payment and all subsequent payments
were in default. However, the Ms. Doe made a payment on June 4, 2009 in the amount of
$2600.00. (See Attachment A). Clearly this was a false and misleading statement by the
plaintiff in order to obtain jurisdiction of this court. Further, the Taylor Bean & Whitaker
repeatedly sent Ms. Doe false and misleading correspondence which indicated she owed past due
mortgage payments. The defendant retained copies of these letters and will present them as part
of her defense to this action.

       Ms. Doe attempted to execute and activate a monthly electronic payment program
through her bank with the plaintiff. However, the plaintiff made repeated attempts to withdraw
unauthorized collections on the account. The bank, acting to preserve the defendant’s deposits,
closed the account and transferred all of Ms. Doe’s funds to her savings account. Due to this
illegal collection practice, Ms. Doe sought to obtain a full accounting of all outstanding
payments in order to bring her account current. The plaintiff refused to cooperate and proceeded
in this foreclosure action without proper notice to Ms. Doe, Beverly Doe and Jane Doe.
       This mortgage and note were not in default as alleged by the plaintiff in its complaint.
The plaintiff came to this court with unclean hands and provided false information in its
complaint in order to foreclose on this property.
                              FOURTH ARGUMENT
                  FAILURE TO COMPLY WITH FLORIDA STATUTES
                               § 201.01 and § 201.08

       Florida law provides:

On mortgages [] recorded in this state, [] the tax shall be 35 cents on each $100 or fraction
thereof of the indebtedness or obligation evidenced thereby. [] When there is both a mortgage, []
or security instrument and a note, [] the tax shall be paid on the mortgage, trust deed or security
instrument at the time of recordation. A notation shall me made on the note, certificate of
indebtedness, or obligation that the tax has been paid on the mortgage, trust deed or security
agreement. [] The mortgage, trust deed, or other instrument shall not be enforceable in any court
of this state as to any such advance unless and until the tax due thereon upon each advance that
may have been paid thereunder has been paid. Fla. Stat. § 201.08 (2009)

With respect to mortgages or trust deeds which do not incorporate the certificate of indebtedness,
a notation shall be made on the note or certificate that the tax has been paid on the mortgage or
trust deed. Fla. Stat. § 201.01 (2009)

       "The case law is well established that, in an action to enforce a promissory note, the
documentary taxes must be paid in order for the note to be enforceable in court." WRJ
Development, Inc., v. North Ring Limited, 979 So.2d 1046, 1047 (3rd DCA 2008). "Once the
court discovers that the documentary taxes have not been paid, the court must dismiss the action
without prejudice, or upon proper motion abate the action for a time sufficient to enable the
plaintiff to purchase documentary stamps and affix them to the note.” Somma v. Metra
Electronics Corp., 727 So.2d 302, 305 (5th DCA 1999)
       Failure to pay the documentary stamp tax is not an affirmative defense. It is a statutory
law that precludes enforcement of the note prior to the payment of the tax. Id. See also Fla.
Stat. 201.08(1)(b).
       Here, the plaintiff filed what it alleged was the original Note on May 11, 2010. The Note
contains no documentary tax stamp in clear violation of Florida law. Therefore, the Note
remains unenforceable and the final summary judgment must be set aside.
                                        CONCLUSION
       The plaintiff committed extrinsic fraud upon the by keeping the defendants from
appearing and defending the action. The plaintiff committed intrinsic fraud through it filing of
false information in the complaint and false affidavits of service of process. The plaintiff failed
to comply with Florida law on service of process. The plaintiff failed to comply with Florida
Statutes 201.01 a d 201.08 which are conditions precedent to the enforcement of promissory
notes on florida real estate. This judgment is void and must be set aside. Therefore, the judicial
sale is void and must be vacated and set aside. Wherefore, defendants respectfully request this
court set aside the Certificate of Sale, Judicial Sale, Summary Final Judgment and Default
entered against the defendants.
                                                      Respectfully submitted


                                                      ___________________
                                                      George Gingo FBN 875933
                                                      James E. Orth, Jr. FBN 75941
                                                      P.O. Box 948218
                                                      Maitland, FL 32794-8218
                                                      (407) 376-1400 (Office)
                                                      (407) 358-5356 (Fax)
                                                      jamesorthlaw@gmail.com

                                       Certificate of Service

I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail,
this __ day of August, 2010, to M. Bobbie Kalia, Law Office of David J. Stern, P.A. at 900
South Pine Island Road, Suite 400, Plantation, FL 33324-3920.

_____________________
James E. Orth, Jr.

								
To top