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IN THE CIRCUIT COURT OF THE 17th

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IN THE CIRCUIT COURT OF THE 17th Powered By Docstoc
					               IN THE CIRCUIT COURT OF THE XXh JUDICIAL CIRCUIT
                    IN AND FOR XXXXXXXXX COUNTY, STATE

NAME OF PLAINTIFF (COULD STATE
SOMETHING LIKE “AS INDENTURE                            Case No. XXXXXXXXXXX
TRUSTEE FOR THE REGISTERED HOLDERS                      Bar No. XXXXXXXXX
OF IMH ASSETS CORP. COLLATERALIZED
ASSET-BACKED BONDS, SERIES 2005-3,”

                   Plaintiff,
v.                                               BORROWER’S
                                                 MOTION FOR SANCTIONS
NAME OF BORROWER,                       PURSUANT TO FLA.STAT. sec. 57.105

                Defendants.
____________________________________/

       [EDITOR’S NOTE. THIS IS GENERALLY NOT FILED WITH THE CLERK BUT

IS SENT TO OPPOSING COUNSEL. IT IS FIELD WITH THE CLERK AND NOTICED

FOR HEARING WHEN BORROWER/DEFENDANT HAS WON THE MOTION TO

DISMISS OR OTHERWISE PREVAILED. IT APPLIES NOT JUST TO THE GENERAL

CLAIM BUT ANY PART OF ANY ALLEGATION THAT THE PLAINTIFF KNEW OR

SHOULD      HAVE     KNOWN      WAS     NOT     TRUE,    THEREBY      INVOKING      THE

REQUIREMENTS OF DUE DILIGENCE ON THE CLIENT, THE LAWYER WHO SIGNS

THE PLEADING, AND THE LAW FIRM THAT THE LAWYER FOR PLAINTIFF WORKS

FOR]

       NAME OF PLAINTIFF, hereinafter Borrower, through undersigned counsel and

pursuant to Fla.Stat. sec. 57.105, decisional law thereunder, and the record facts below,

moves this Court to enter an Order of Sanctions against Plaintiff, and as grounds for

same states:

          1. On or about DATE, Plaintiff, through its agent and attorney NAME OF

               ATTORNEY WHO SIGNED PLEADING, Esq. of the Law Offices of NAME


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   OF LAW FIRM. (hereafter “agent and attorneys”), caused this civil action

   for foreclosure and to “enforce loan documents” to be filed in this Court.

   For purposes of this Motion, the referenced allegations of the Complaint

   are incorporated herein by reference.

2. In paragraph “X.” of Count X of the Complaint, Plaintiff, through its agent

   and attorneys, affirmatively represent to the Court that “The Plaintiff owns

   and holds the Note and Mortgage”.

3. In paragraph “X” of Count X, Plaintiff, through its agent and attorneys,

   affirmatively represent to the Court that the mortgage was “subsequently”

   assigned to the Plaintiff “by virtue of an assignment to be recorded” (that

   being some time in the future).

4. In paragraph “XX” of Count XX, Plaintiff, through its agent and attorneys,

   affirmatively represent to the Court that “The Plaintiff is not presently in

   possession of the Note and Mortgage” and “the Plaintiff cannot reasonably

   obtain possession of the Note and Mortgage because THERE

   whereabouts cannot be determined” (original emphasis).

5. In paragraph “XX” of Count XX, Plaintiff, through its agent and attorney

   affirmatively represent to the Court that “The Plaintiff will agree to the entry

   of a Final Judgment of Foreclosure wherein it will be required to indemnify

   and hold harmless the Defendant(s), from any loss they [sic] may occur by

   reason of a claim by another person to enforce the lost Note and

   Mortgage.” [EDITOR’S NOTE: VERY UNUSUAL PROVISION THUS FAR.

   MIGHT NOT APPLY TO YOUR CASE]



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6. Plaintiff, through its agent and attorneys, thus inconsistently but

   affirmatively allege, in Count X, that “Plaintiff owns and holds the Note and

   Mortgage” when in fact the admissions in Count XX demonstrate, by the

   allegations of paragraphs “XX” and “XX” of the Complaint, that the Plaintiff

   DOES NOT and CANNOT legally establish possession or ownership of

   the Note or the Mortgage and that same is/are, at all times material, in the

   possession of an unknown party or parties.

7. A copy of the actual Note is not even attached to the Complaint, with the

   only reference to a Note being in paragraph “XX.” of the Complaint which

   alleges that a “ledger of loan” is attached (which in and of itself constitutes

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

8. By virtue of the admissions of the Plaintiff in paragraphs “XX”, “XX”, and

   “XX” of the Complaint, the Plaintiff has admitted its actual knowledge that

   it never, at any time material, had possession of either the mortgage or the

   note as same were sold, assigned, or transferred to one or more third

   parties. Such sale, assignment, or transfer was part of a single-transaction

   securitization process which resulted in the subject mortgage and/or note

   being sold, assigned, or transferred as parceled obligations and becoming

   part of one or more tranches within a special investment vehicle.

9. Plaintiff cannot establish that the subject note or mortgage is owned or

   controlled by the Plaintiff “indenture trustee” for unnamed holders of a

   series of asset-backed bonds (a copy of which are not even attached to

   the Complaint).



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10. As a direct and proximate result of the transaction referred to in

   paragraph “8” above, the Plaintiff does not and cannot establish legal

   standing to even institute a foreclosure action, which legal capacity to

   institute this action ab initio and the alleged authority of the Plaintiff to

   institute this action in a representative capacity is properly raised by

   DEFENDANTS pursuant to Fla.R.Civ.P. 1.120(a).

11. Based on the foregoing, the allegation by the Plaintiff in paragraph “X” of

   the Complaint constitutes matters which are completely devoid of factual

   or legal support and are vitiated by the Plaintiff’s own admissions in Count

   II of the Complaint, and are thus “frivolous” within the meaning of Fla.Stat.

   sec. 57.105.

12. As the primary and threshold issue of legal standing to institute this action

   cannot be satisfied by the Plaintiff (which was known to Plaintiff and its

   agent and attorneys at the time that this action was instituted), this action

   is a patently frivolous claim within the meaning of Fla.Stat. sec 57.105,

   and in fact the filing and prosecution thereof constitutes a fraud upon this

   Court.

13. In view of the foregoing, both Plaintiff and its agent and attorneys knew or

   should have known, at the time they filed the Complaint in this action, that

   the foreclosure claim was legally nonexistent, and that any suit to

   foreclose on the alleged note and mortgage would be a legally

   impossibility prohibited by law, and further that the filing of any such action

   could not be in good faith or based on representations of the client.



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14. As such, both Plaintiff and its agent and attorneys knew or should have

   known, at the time of the filing of the Complaint in this action, that the

   claim for foreclosure was both not supported by the material facts

   necessary to establish the claim, and also that the claim would not and

   could not be supported by the application of then-existing law to the

   material facts.

15. On DATE OF FRIVOLOUS CLAIM DEMAND LETTER, Defendants,

   through his undersigned counsel, provided Plaintiff’s counsel with a formal

   written demand, which was both faxed and mailed, to immediately and

   forthwith dismiss the instant action with prejudice, provide clear title to the

   subject property, refund all monies paid by Defendants/Borrowers in

   connection with the alleged “loan” the subject of this action, and to pay all

   attorneys’ fees and costs associated with the demand.

16. The time period provided by the statutory “safe-harbor” provision of

   Fla.Stat. sec. 57.105(4) permitting Plaintiff and its agent and attorneys to

   comply with the demands per the attached DATE OF FRIVOLOUS CLAIM

   DEMAND LETTER letter has passed with no compliance by either Plaintiff

   or its agent/attorneys.

17. As such and pursuant to Fla.Stat. sec. 57.105(4), Defendants file the

   instant Motion and demands the assessment of attorneys’ fees against

   both the Plaintiff and its above-referenced counsel and the above-

   referenced Law Offices for having to defend the instant action; for the

   preparation and filing of this Motion; prejudgment interest as provided by



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           Fla.Stat. sec. 57.105(1), and for all other attorneys’ fees and other relief

           provided by applicable law, and Fla.Stat. sec. 57.105 and decisional law

           thereunder.

                               CERTIFICATE OF SERVICE

       THE UNDERSIGNED HEREBY CERTIFIES that a true and correct copy of the
foregoing has been forwarded, via fax and mail, to NAME OF LAWYER WHO SIGNED
THE PLEADING., Law Offices of NAME OF LAW FIRM, ADDRESS, on this XX rd day
of MONTH, 2008.




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