Formal Notice Letter by lju16692

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									LETTERHEAD
TODAY’S DATE                                                   VIA FAX AND MAIL
                                                              FAX NUMBER
LAWYER ADDRESS

Re: NAME OF CASE AND CASE NUMBER, IF ANY: FORMAL STATUTORY
    DEMAND TO DISMISS FORECLOSURE ACTION WITH PREJUDICE, CLEAR
    TITLE TO REAL PROPERTY, REFUND MONIES PAID, AND FOR PAYMENT
    OF ATTORNEYS’ FEES AND COSTS PURSUANT TO FLA.STAT. SEC. 57.105

Dear LAWYER’S NAME:

This letter is being provided to you, the Law Offices of NAME OF FIRM, and your client
NAME OF “LENDER” (Plaintiff in the Action identified herein) as formal notice, pursuant
to the matters herein and Fla.Stat. sec. 57.105, of this Firm’s client NAME OF
BORROWER (hereinafter Borrower) demand that you immediately and forthwith
dismiss, with prejudice, that certain civil action styled COMPLETE STYLE OF CASE
E.G. JONES BANK V SMITH, CASE # IN THE 20TH CIRCUIT OF THE COUNTY OF
XXXXX, STATE OF XXXXX, hereafter referred to as the “Action”); to provide clear title
to the real property the subject of the Action; for refund of all monies paid by Borrower
incident to the alleged “loan” the subject of the Action; and for payment of attorneys’
fees and costs which are awardable under various Federal and state statutes violated
by your filing of the Action. This letter is also being sent as formal notice of Borrower’s
Motion for Sanctions (copy attached hereto) which will be filed and set for hearing
unless, pursuant to Fla.Stat. sec. 57.105(4), within twenty-one (21) days of today,
Borrower’s demands as set forth herein are not complied with in writing confirmed by
fax receipt, by this Firm, of this notice of this date necessary documents to legally effect
the demands made herein.

The facts supporting this demand and the attached Motion are as follows, which are
admissions by you, as an agent of the above-referenced Law Offices , in the Complaint
which you filed:

       (a) On or about DATE, you, as an agent and attorney of the above-referenced
           Law Offices, caused a civil action for foreclosure and to “enforce loan
           documents” to be filed in the xxth Judicial Circuit in and for XXXXXXXX
           County, Florida, which has been assigned case number XXXXXXXXXXX;

       (b) In paragraph “X.” of Count X of the Complaint, you affirmatively represent to
           the Court that “The Plaintiff owns and holds the Note and Mortgage”;

       (c) In paragraph “X” of Count X, you 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);




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(d) In paragraph “XX” of Count XX, you 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 THEIR whereabouts cannot be determined (original emphasis):

(e) In paragraph “XX” of Count XX, you 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: So far this is a very
    unique allegation. It probably does not appear in your pleadings].

(f) The Action thus inconsistently but affirmatively alleges, in Count X, that
    “Plaintiff owns and holds the Note and Mortgage” when in fact the
    admissions in Count II 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 in the possession of an unknown party or parties;

(g) A copy of the Note is not even attached to the Complaint (only an alleged
    “ledger of loan”);

(h) By virtue of the admissions of the Plaintiff in paragraphs “XX”, “XX”, and “XX”
    of the Complaint, the Plaintiff has 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 as part of the single-transaction securitization
    process which resulted in the subject mortgage and/or note being sold as
    parceled obligations and becoming part of one or more tranches within a
    special investment vehicle;

(i) that the 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);

(j) As a direct and proximate result of the transaction referred to in paragraph
    “h” above, the Plaintiff does not and cannot establish legal standing to even
    institute a foreclosure action;

(k) As such, the allegation by the Plaintiff in paragraph “5” of the Complaint
    constitutes matters which are completely devoid of factual or legal support
    and are thus “frivolous” within the meaning of Fla.Stat. sec. 57.105;

(l) As the primary and threshold issue of legal standing to institute the Action
    cannot be satisfied (which was known to you, the Law Offices of David J.




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           Stern, P.A., and the Plaintiff at the time that the Action was instituted), the
           Action is a patently frivolous claim within the meaning of Fla.Stat. sec 57.105
           and the filing and prosecution thereof constitutes a fraud upon the Court.

Your client and your Firm are thus charged with actual notice of the filing of an frivolous
claim, as you, your client, and the Law Offices of David J. Stern, P.A. knew or should
have known that the Action was both not supported by the material (and record) facts
necessary to establish the claim for foreclosure and would not (and could not) be
supported by the application of then-existing law to the material (and record) facts.

As such, this Firm has been directed to file and set for hearing, after the expiration of
twenty-one (21) days from today (that being DATE), the attached Motion for Sanctions
and to seek attorneys’ fees from both your client and your Firm if the demands set forth
herein for immediate dismissal of the Action with Prejudice, providing of clear title to the
property the subject of the action, refund of all monies paid by Borrower in connection
with the original “loan” the subject of the Action, and payment of all attorneys’ fees and
costs associated with this demand are not complied with in writing by the close of
business (5:00 p.m.) DAY, DATE.

                                                                         Sincerely,




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