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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) email@example.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.