IN THE CIRCUIT COURT OF THE 20th JUDICIAL CIRCUITIN AND FOR LEE COUNTY, STATE OF FLORIDA CIVIL DIVISION

CASE NO: 06-CA-4176

US BANK NATIONAL ASSOCIATION,

Plaintiff,

vs.

NORMAN CRAIG ANDERSON, et al.

Defendants._______________________/

DEFENDANTS NORMAN CRAIG ANDERSON AND SHANNON ANDERSON'S VERIFIED MOTION TO STRIKE PLAINTIFF’S

COMPLAINT FOR LACK OF STANDING, AND FOR FRAUD UPON THE COURT, SUPPORTED BY A MEMORANDUM OF LAW

TO REFUSE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR TO GRANT SUMMARY JUDGMENT IN DEFENDANT'S FAVOR

WITH PREJUDICE AND SANCTIONS AND TO CANCEL THE ORDER SETTING CASE FOR DOCKET SOUNDING ON JULY 19, 2010.

NORMAN CRAIG ANDERSON AND SHANNON ANDERSON [THE ANDERSONS], after being sworn, deposed by the undersigned authority says on personal knowledge as follows:-

Any and all statements made in this document are true and this statement is made under the penalty of perjury and includes all evidence submitted, Exhibits attached to this document and true copies of original documents or those filed in public or Court records .

WHEREAS, THE ANDERSONS, pro se. pursuant to Fla.R.Civ.P. 1.150 and

1.130(a)(b), submits their Motion to Strike Plaintiff’s Complaint as a Sham

Pleading and moves this Court to Order Summary Judgment in their favor

and to Dismiss this Case with Prejudice, Sanctions and legal costs (if any)

they incur.

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1. Defendants state under penalty of perjury that this case, in common with

huge numbers of others being processed through the Courts of Florida is a constantly

changing smorgasbord of fraud in which the Plaintiff, two separate law firms,

[individual attorneys and their non-licensed employees], Mortgage Electronic

Registration Systems [MERS], Chase Home Finance LLC [including various named

employees of that entity] - to include other parties not specifically mentioned in this

paragraph but who may be exposed in evidence, to be submitted in support of this

Motion – have all actively participated.

2. To assist this Court Defendants have set out in the following sub-paragraphs

a table of fraudulent actions and violations of Federal and State laws that are present

in this case, prior to setting out [where further explanation is necessary] the details of

the items listed herein, noticing the Exhibits attached and including a Memorandum of

Law. [The Upper Case Letter ‘F’ at the end of a sub-paragraph indicates the action or

lack of action described therein is fatal to the Complaint ab initio].

a) No Notice under the Fair Debt Collection Practices Act [FDCPA] has ever

been served on either Defendant by either of the two law firms who have

represented the Plaintiff in this action. F.

b) Defendants have not received a notification through the US Mail of the

Notice of Re-Hearing of Summary Judgment that has been scheduled to

take place prior to the ‘Docket Sounding’ [of which they were noticed] on

July 19,2010, despite the fact that this Motion was filed in the Court on

June 9, 2010 and Judge Carlin dated his Order the following day on June

10, 2010. As documented in sub-paragraph d) hereinafter, no Default has

been obtained, and the Florida Default Law Group has included a

Certificate of Service on the filed document, but no such document has

been received. Defendants understand from other Defendants and from

information available on the Internet, including Attorney sources, that

this practice of printing a certificate of service, but not complying with it

is a regular practice by this law firm and other foreclosure mills. F.

c) The Plaintiff in this case does Not have A Cause of Action against

Defendants, THE ANDERSONS, but in a series of attempts to perpetrate a

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fraud upon this court in conjunction with two consecutive law firms

allegedly acting as their counsel have made statements, manufactured

documents and file those documents in both the Public and Court

Records. F.

d) Plaintiff attempted to obtain a Default on September 15, 2008 in a Motion

submitted to Judge McHugh. The copy of the Default Issued Notice

prepared by Plaintiff’s Counsel and filed in the Court Records shows a line

drawn through the signature are provided for Judge McHugh and the

words, “NOT ISSUED No Orig. Affid. Pub. has been filed.” No further

attempt to secure a Default has been made and the record shows a failure

of Due Process of Service. Summary Judgment is inappropriate. F.

e) Plaintiff's have filed in the Court three separate hearsay Affidavits Of

Amounts Due and Owing all of which claim that Chase Home Finance LLC

is acting as a loan servicer on behalf of the Plaintiff. Loan Servicers are

appointed under the provisions of a Pooling and Servicing Agreement

[PSA] following the alleged sale in the secondary market of a pool of

mortgages into a Real Estate Mortgage Investment Conduit [REMIC] and

is subject to the Internal Revenue Code, IRC 860 and the provisions of the

PSA. It is therefore impossible For US Bank National Association to own

and hold the said Note and Mortgage as stated in their Complaint. F.

f) Plaintiff states in paragraph 4 of the Complaint, “The Original Promissory

Note was lost or destroyed subsequent to Plaintiff's acquisition thereof,

the exact time and manner of said loss or destruction being unknown to

Plaintiff.

g) This statement conflicts with the statement contained in the Comments

Of The Florida Bankers Association submitted to the Supreme Court of

Florida. Case No. 09-1460, that “the reason for lost note complaints was

that all Original Notes were deliberately eliminated immediately after the

loan closing upon conversion to an electronic file.”

h) Plaintiff has failed to attach the Promissory Note as required by

Fla.R.Civ.Pro.1.130(a), but stated to the Court that it had attached a copy

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[which was not so attached] despite also stating that the Note had been

lost Or destroyed. Plaintiff has therefore failed to produce any

“document upon which action may be brought” to demonstrate that it has a ‘Cause of Action’ in this matter. F.

i) The Original Promissory Note states in paragraph 1 “Lender is

AMERICAN MORTGAGE GROUP INC.” and further states, “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.” Despite claiming in the Complaint that

Plaintiff owns and holds said Note by virtue of the endorsement/allonge,

which it further claims to have attached, no such endorsement/allonge

was so attached. Plaintiff has therefore, failed to show a Cause of Action

by attaching a Promissory Note to the Complaint naming said Plaintiff as

the ‘Lender’ as required by Fla. R.Civ.P. 1.130. F.

j) The Mortgage Deed filed in the Public Records of Lee County and attached to the Complaint states, “Lender is AMERICAN

MORTGAGE GROUP INC. ” and further states, “MERS is a separate

Corporation that is acting solely as nominee for Lender and Lender’s

successors and assigns. MERS is the mortgagee under this Security

Instrument.” The Complaint states, “NORMAN CRAIG ANDERSON AND

SHANNON LYNN ANDERSON executed and delivered a mortgage securing

payment of same to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS

INC., AS NOMINEE FOR AMERICAN MORTGAGE GROUP INC., which

mortgage was recorded on March 24, 2006, in Official Records Book

20060001247455, of the Public Records of Lee County Florida…” This is

an admission that the Mortgage Deed was separated from the obligation

contained in the Promissory Note Ab initio. F.

k) Plaintiff did however file an assignment of mortgage [together with the

Note] - purportedly executed by MERS - in the Public Records of Lee

County Florida on October 3, 2007 [over a year after its purported

execution on October 2, 2006 and the filing of this action on September

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27, 2006]. In common with all such MERS Assignments, this one is

fraudulent and the multiple reasons for this statement will be evidenced

hereinafter. F.

l) In brief, MERS has no authority to assign anything, according to its own

Rules and to many Federal and State Court trial and Appellate decisions

at the trial and Appeal levels. Also in common with all such fraudulent

Assignments this one claims [buried in the body of the Assignment

document] to have also transferred the Note [acting as a nominee for

American Mortgage Group Inc.]. MERS has no standing in any Promissory

Note where it has been designated as Mortgagee in a Mortgage Deed, in

fact possessing almost no power to do anything other than as a ‘Nominee’

acting on behalf of the lender in respect of that Mortgage Deed only and

cannot under any circumstances possess the authority to transfer any

Promissory Note, including the one in this case. F.

m) The document claims to have been signed and notarized in California on

October 2, 2006 as “a replacement for the Original Assignment” [also

mysteriously and without further explanation ‘lost’]that was signed on an

unspecified/unknown date that, coincidentally and in conformity with

thousands of other similar fraudulent documents filed by this Plaintiff

and its various foreclosure mill attorneys, just happens to have been prior

to September 26, 2006, the day before this lawsuit was filed, to

manufacture apparent compliance with Fla.R.Civ.Pro.1.130(a) by

falsifying a Cause of Action against the Defendants in this case upon the

date when the case was filed. F.

n) To have a cause of action in a foreclosure suit the Plaintiff must be the

Holder-in-Due-Course of the Promissory Note, entitled to receive the

payments from it and be the Owner of the Mortgage recorded in the

Public Records prior to the date upon which suit is filed. Thus on more

than one count, Plaintiff thus wrongfully and fraudulently represented

to this Court that it had the legal standing to not only file the instant

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action, but to also foreclose on a Mortgage and Note that it does not

and cannot own. F..

o) The record does not verify that Plaintiff has suffered any damages other

than those directly attributable to their own deliberate and ongoing

frauds. For claim of damages, to be admissible as evidence, it must

incorporate records such as a general ledger and accounting of an

alleged unpaid promissory note and the person responsible for

preparing and maintaining the account general ledger must provide a

complete accounting which must be sworn to and dated by the person

who maintained the ledger. Plaintiff has not provided any accounting to

Defendant or to the Court. To the contrary, Plaintiff appears to be using

this Court to achieve a windfall of a free residential property. F

p) This purported ‘Assignment of Mortgage’ represents major and

multiple frauds upon the Court,[ which are pleaded with specificity

hereinafter] and which violate Florida Criminal Statutes 817.545

Mortgage Fraud, 831.01 F.S. Forgery, 83102 F.S. Uttering forged

instruments, and 831.06 Fictitious Signature of Officer of Corporation

by ???????? names of signatories?????? and/or other at present

unknown parties. F.

q) Further violations of Florida Statutes include the failure to execute the

Assignment under the Corporate Seal of MERS or to verify the identity,

authority, or genuineness of the titles adopted by the alleged Vice

President and Assistant Secretary of MERS [both of these individuals

can probably be proven to be employees of Chase Home Finance

LLC, the Loan Servicer] – they are certainly not employed by MERS .F.

r) The Summary Judgment notice that was filed in court on December

21, 2007 stated that the Plaintiff would produce the original Note

[which they previously claimed to have been lost or destroyed] at the

Summary Judgment Hearing. However, that Hearing did not take

place. In fact, it was subsequently scheduled for Hearing in a Notice of

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Hearing Summary Judgment on September 29, 2008 in a Rocket

Docket Hearing before Judge McHugh, but mysteriously canceled

immediately after the event and filed in the Court Records at 1:52 PM

on that day.

s) Defendants restate sub-paragraph c) hereinbefore. The three

Affidavits of Amounts Due and Owing are inadmissible hearsay,

allegedly created by employees of non-party CHASE HOME FINANCE

LLC. [Chase]. The first two submitted to the Court are signed by two

different persons claiming to be the Vice President of Chase, both with

the responsibility for maintaining the records and both of whom are

located in San Diego CA., but the third different person also making

the same claims states that she is a Vice President of Chase, but in

Franklin, Ohio. Further the copy document filed in the Court was

drafted to be signed and notarized in San Diego, CA, but was altered

to read Franklin Ohio.

t) This signor of the third Affidavit of Amounts Due and Owing, is Witney

K. Cook. This person is a known ‘Robo-signor’ who is estimated to

sign over 2000 of these fraudulent and hearsay affidavits on every

business day, without any knowledge as to the truth or otherwise of the

statements she is signing.

u) All three of these hearsay affidavits constitute a further attempt to

manufacture evidence and constitute further fraud upon the Court. F.

v) Defendants were not personally served at any time. Despite being denied

service of process, Plaintiffs continued to file further papers in the court

and set Hearings, ex-parte, in contravention of Fla.R.Civ.Pro1.500 without

ever mailing any of those papers to Defendants. This behavior has been

consistent and continued to include the Notice of Hearing filed the day

before Judge Carlin issued his Order for Docket Sounding.

w) Court (Judge McHugh) did not Issue Default applied for on September

15,2008 because of non publication of service, but on September 17, 2008

Plaintiff noticed a Hearing to hear Summary Judgment on September 29

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2008, but cancelled the Hearing after the event on the day of the Hearing.

x) No further action was taken by Plaintiff until June 9, 2010 when it

secheduled a Re-Hearing for July 19, 2010.

y) Defendants would have been completely unaware of that improper

Hearing, arranged ex-parte, but for examining the Court records following

their receipt of Judge Carlin’s Order to Set Docket Sounding, in which he

stated that a Motion for Summary Judgment could be heard if appropriate

by either party. At that time the Judge should have known that this

improper Hearing had already been scheduled as it was recorded in the

Court records.

z) Defendants, therefore move this Court to Strike Plaintiff’s claim and not

to hear Plaintiff’s Motion for Summary Judgment at the ex parte Hearing

scheduled for July 19, 2010, for all the fraudulent actions taken by them,

their failure to serve due process upon Defendants and their attempts to

violate the Rules of Civil Procedure. Further, Defendants ask that the

Order to Set Docket Sounding issued by Judge Carlin be vacated as

inappropriate to this case. F.

3. According to the Complaint filed in the Court on September 27, 2006 and the

MERS Assignment of Mortgage [which purported to include the Note by the

insertion of the words “together with the Note”] filed in the Public Records on

10/03/2007. U.S. Bank National Association was not in possession of the original

Note or entitled to enforce it when the loss occurred. Neither was U.S. Bank National

Association in possession of the Note or the Mortgage on September 27th 2006 and

thus lacked Standing to bring the action ab initio.

4. Further, MERS had no Standing or Authority to execute such an Assignment

of either the Mortgage or the Promissory Note and would not have possessed any

Standing to take such action, even if the alleged officers of MERS who executed that

Assignment were genuine vice presidents and/or assistant secretaries of that entity,

which they were not.

5. Therefore, even if the purported Assignment had been executed before the

Complaint was filed, which it was not, it would have been ineffective and known to

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be fraudulent at the time of its manufacture and subsequent filing in the public

records by Plaintiff’s attorneys who have named themselves in the Complaint and

subsequent papers filed in the Court. As previously stated these actions constitute

violations of the specified Florida Criminal States.

6. Contrary to the Complaint, US Bank National Association did not acquire the

note from a party (in this instant case, MERS) who was entitled to enforce the note.

In fact, MERS was not entitled to assign the note to any party by their own

admission in the Supreme Court of Nebraska. Further, MERS, by it’s own admission

in the assignment, was not in possession of the original note when the loss occurred.

In the instant case Plaintiff cannot prove the existence of the note in question or

who the true beneficiaries of that instrument are, since the Plaintiff has stated that

the original note was lost, misplaced or destroyed, and neither the Plaintiff nor

MERS purporting to be the prima face Assignor of both the Mortgage and the Note

when fraudulently transferring those two instruments to the Plaintiff, has in their

possession or can swear to the contents of the original Note having never seen it, or

the subsequent accounting or general ledger, the court can not determine who, if

any party or parties has a course of action against this note. A proper chain of

custody cannot be established.

7. The Mortgage filed in the public records, quoted and copied as an attachment to the

Complaint is clearly not in the name of the Plaintiff, who therefore must necessarily rely

upon a valid assignment, which does not exist. Further as Plaintiff has failed to produce any

evidence of the existence of a Promissory Note endorsed over to its ownership [despite

claiming to have attached it to the Complaint and having made subsequent promises that it

would be producing an Allonge and to have purported to have taken ownership of that Note

through a fraudulent MERS Assignment it lacks Standing or any Cause of Action against

Defendants as a matter of law.

8. Refer to UCC 3-309 where two conditions must be met before a Court can reinstate a

lost Note. 1. The party must be entitled to enforce the instrument when the loss of possession

occurred OR 2.) Have directly or indirectly acquired ownership of the instrument from a

person who was entitled to enforce the instrument when the loss of possession occurred.

Since neither US Bank, nor MERS was entitled to enforce the instrument at that time, or even

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to be able to state with any accuracy the time at which the alleged loss occurred, neither of

those two conditions have been met, therefore U.S. Bank National Association is NOT

entitled to enforce this instrument and its request to re-instate the Note on the grounds stated,

is known by them and their Attorneys to be fraudulent.

9. The assignment attached to the amended complaint is from Mortgage Electronic

Registration Systems, Inc. (hereinafter "MERS") to Plaintiff, and that assignment is

completely ineffective. As nominee for the lender, MERS serves in a very limited

capacity. Specifically, MERS records the mortgage and tracks ownership of the lien.

Despite being named as the Mortgagee in the Security Instrument it was not

designated as the Lender. Neither was it ever designated as the Note Holder. Nor

was it ever entitled to receive the payments generated by that negotiable

instrument – all three of which are pre requisites of Standing to foreclose on the

Mortgage [Security Instrument].

10. Therefore, MERS has no ownership or other substantive rights itself and

cannot assign what it does not own. "A nominee of the owner of a mortgage may not

effectively assign that mortgage without being instructed and authorized by their Principal.

As in the instant case where the subject mortgage is created for the specific purpose of

increasing the security of the Promissory Note Holder under no circumstances can MERS

transfer the ownership of the Promissory Note in which they are not named in any capacity to

another for want of an ownership interest in said note. The mass production of such MERS

Assignments of Mortgages that just happen to add the words “together with the Note” in the

center of those documents is fraud on a grand scale. The subject Assignment is one of many

thousands of such blatant fraud upon this Court.

11. There is no evidence of record that establishes that MERS was authorized to assign

anything to Plaintiff, and therefore, the assignment was invalid. Even if the assignment were

valid, it was not executed until after the complaint was filed. Therefore, Plaintiff s standing at

the inception of the case was based entirely on the complaint and the exhibits attached

thereto. It appears on the face of those exhibits that an entity other than Plaintiff has standing,

and those exhibits control over contrary allegations contained in either version of the

complaint. Plaintiff lacks standing now based on the substantive deficiencies with an

assignment from MERS. Plaintiff lacked standing at the inception of the case based on those

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substantive deficiencies and the timing of the execution of the assignment. Absent standing,

there is no justiciable controversy between the parties, and this case must be dismissed.

WHEREAS, Defendants restate paragraphs 2a) through 2z) s total of 22 reasons to

Strike Plaintiff’s Complaint plus paragraphs 3 through 10 and moves this Court to

make an appropriate Order with prejudice, sanctions against both Plaintiff and their

counsel, legal costs [if any are incurred] ) and any and all further relief that this

Court may consider appropriate for participating in multiple frauds upon the Court

MEMORANDUM OF LAW

Defendants THE ANDERSONS file and serve their Memorandum of Law In

Opposition to the Plaintiff’s Motion for Summary Judgment and in support of their

Motion to Strike Plaintiff’s Complaint and states:

12. Defendants re-allege and reincorporate all matters in their foregoing Motion

to Deny Plaintiff’s Motion For Final Summary Judgment, to Strike Plaintiff’s

Complaint For Lack Of Standing And Fraud Upon The Court, herein by reference,

including all Exhibits thereto.

13. The summary judgment standard is well-established. "A movant is entitled to

summary judgment 'if the pleadings, depositions, answers to interrogatories,

admissions, affidavits, and other materials as would be admissible in evidence on

file show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.'" Estate of Githens ex rel. Seaman

v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d

DCA 2006) (citing Fla.R.Civ.P. 1.510(c)).

14. The party moving for summary judgment must conclusively show the

absence of any genuine issue of material fact and the court must draw every

possible inference in favor of the non-moving party. Caresito v. School Bd. Of

Broward County, 866 So.2d 754, 755 (Fla. 4th DCA 2004)(emphasis supplied), citing

Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002).

15. BAC FUNDING CONSORTIUM INC. ISAOA/ATIMA v.GINELLE JEAN-

JACQUES, SERGE JEAN-JACQUES, JR., and U.S. BANK NATIONAL

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ASSOCIATION Case No. 2D08-3553 (DCA 2nd District 2010) clearly establishes that

the Plaintiff must provide sufficient proof of standing on the note, before attempting to

foreclose. Additionally, this case found that it is essential for the trial courts to have

sufficient evidence before them prior to a summery judgment being issued. In their ruling

and pertinent to this case, the DCA ruled that “…it is especially important that trial

courts abide by the proper standards and apply the proper burdens of proof when

considering a summary judgment motion in a foreclosure proceeding.” Further, the

Florida DCA ordered that “Accordingly, because U.S. Bank failed to establish its status

as legal owner and holder of the note and mortgage, the trial court acted prematurely in

entering final summary judgment of foreclosure in favor of U.S. Bank. We therefore

reverse the final summary judgment of foreclosure and remand for further proceedings.”

(See attached Exhibit A)

16. AURORA LOAN SERVICES, LLC vs. JUDITH MENDES DA COSTA (20 th

Judicial Circuit Court, Collier County, CASE NO.: 09-142-CA) The Collier County

Court found that the assignment by MERS had no validity, that EVEN if the assignment

were valid, that the assignment took place after the case had been filed, therefore the only

party that could be assumed having the right to foreclose was not before the court.

Pertinent to this case, the 20th Circuit Court for Collier County ruled “There is no

evidence of record that establishes that MERS was authorized to assign anything to

Plaintiff, and therefore, the assignment was invalid. Even if the assignment were valid, it

was not executed until after the complaint was filed. Therefore, Plaintiff s standing at the

inception of the case was based entirely on the complaint and the exhibits attached

thereto. It appears on the face of those exhibits that an entity other than Plaintiff has

standing, and those exhibits control over contrary allegations contained in either version

of the complaint. Plaintiff lacks standing now based on the substantive deficiencies with

an assignment from MERS. Plaintiff lacked standing at the inception of the case based on

those substantive deficiencies and the timing of the execution of the assignment. Absent

standing, there is no justiciable controversy between the parties, and this case must be

dismissed” (See attached Exhibit B)

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17. Plaintiff’s various Affiants to the filed Affidavits Of Indebtedness failure to

attach documents to authenticate and identify any of the books, records, accounts

and other [unspecified documents] purported to be kept in this matter violates

Florida Statute 90.901 and Fla. R. Civ. P.1.510(e), which provides in part, “ that

“affidavits…shall show affirmatively that the affiant is competent to testify to the

matters stated therein”0; Zoda v. Hedden. 596 So. 2d 1225, 1226 (Fla. 2 nd DCA 1992)

(holding in part, that failure to attach certified copies of public records rendered

affiant, who was not a custodian of said records, incompetent to testify to the

matters stated in her affidavit as affiant was unable to authenticate the documents

referred to therein).”  Failure to attach such papers is grounds for reversal of

summary judgment decisions.  See CSX Transp., Inc. v. Pasco County 660 So. 2d 757

(Fla. 2d DCA 1995).  

18. Fla. R. Civ. P. 1.501(e) provides in pertinent part, that “sworn or certified copies

of all papers or parts thereof referred to in an affidavit shall be attached thereto or served

therewith.” Failure to attach such papers is grounds for reversal of summary judgment

decisions. See CSX Transp. Inc. V Pasco County.

The affiant stated that the information was transmitted by, persons with

personal knowledge of the facts. As a threshold matter the admissibility of an

affidavit rests upon the affiant having personal knowledge as to the matters

stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading in pertinent part, that

“affidavits shall be made on personal knowledge”). Enterprise Leasing Co. v.

Demartino. 15 So 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So

2d 953 (Fla. 2d DCA 2005); In re Forfeiture of 1998 Ford pickup, Identification

No. 1FTZX1767WNA34547, 779 So 2d 450 (Fla. 2D DCA 2000).

Additionally, a corporate officer’s affidavit which merely states conclusions or

opinion is not sufficient, even if it is based on personal knowledge. Nour v. All

State Supply Co., So 2d 1204,1205 (Fla. 1 st DCA 1986).

The Third District, in Alvarez v. Florida Ins. Guaranty Association 661 So. 2d

1230 (Fla. 3d DCA 1995) noted that “the purpose of the personal knowledge

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requirement is to prevent the trial court from relying on hearsay when ruling on

a motion for summary judgment and to ensure that there is an admissible

evidentiary basis for the case rather than mere supposition or belief.” Id at 1232

(quoting Pawlik v. Barnett Bank of Columbia County, 528 So 2d 965, 966 (Fla. 1 st

DCA 1988)).

19. This opposition to hearsay evidence has deep roots in Florida common law.

In Capello v. Flea Market U.S.A., Inc., 625 So 2d 474 (Fla 3d DCA 1993), the Third

District affirmed an order of summary judgment in favor of Flea market U.S.A. as

Capello’s affidavit in opposition was not based upon personal knowledge and therefore

contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P .A.., 613

So2d 136 (Fla. 4 th DCA 1993); Mullan v. Bishop of Docese of Orlando, 540 So 2d 174

(Fla. 5 th DCA 1988); Page v. Stanly. 226 So, 2d 129 (Fla.4 th DCA 1969).

20. Thus there is ample precedent for striking the Affidavits of Indebtedness as

all three separate affiants have admitted no personal knowledge of the facts stated

therein. As employees or agents of what they admits to as being “the servicer of

the loan transaction” affiants had no idea of the alleged underlying transaction

between the plaintiff and the Defendants. Indeed they could not have had any such

knowledge as no such transaction or obligation to the Plaintiff exists, or has ever

existed. Affiant was not engaged by the Plaintiff with respect to the alleged

underlying transaction between the Plaintiff and the Defendant. Neither did they

have any contact with the Defendants at that time. ”Therefore, affiants’ statemenst

that Plaintiff services the note and mortgage forming the basis of this action cannot

be authenticated from their personal knowledge. Further, the Affidavits fail to set

forth with any degree of specificity what duties the Affiants perform for the Plaintiff

as an employee or agent of the loan servicer. No information is given as to how

they were appointed and by whom for that purpose. Because affiants have no

personal knowledge of the underlying transaction between the Plaintiff and

Defendant, any sworn statements they make which references this underlying

transaction (such as the fact that Plaintiff is allegedly owed the three different

principal amounts stated in the three different hearsay affidavits) is by its very

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nature, hearsay. The Florida Rules of Evidence define hearsay as “a statement,

other than one made by the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” Fla. Stat. 90.801(1)(c) (2007).

The Court’s Order to Set Docket Sounding with its many conditions would further

prejudice the Defendant’s right of equal access and justice in this frivolous lawsuit

where the Plaintiff and its various counsels have engaged in multiple fraudulent

activity upon this Court.

21. Defendants are aware of the “Records of Regularly Conducted Business

Activity” exception. Fla. Stat. 90.803(6) (2007). The exception is not applicable in

this case. No memorandum, reports, records, or data compilation have been offered

by the Plaintiff, other than three separate and unverified purported computer print

outs are not even signed and does not mention the Defendants’ name. Finally, the

Affidavits were unable to state the basic fact as to the true status of the Plaintiff or

its relationship with Defendants, if any.

22. Because affiant’s statements in this Affidavit are not based upon personal

knowledge, they are inadmissible hearsay evidence. As no hearsay exception

applies to these statements, the Affidavit should be struck in whole.

23. Further this Affidavit included impermissible conclusions of law not

supported by facts.

24. An affidavit in support of a motion for summary judgment may not be based

upon factual conclusions or opinions of law. Jones Constr. Co of Cent. Fla., Inc. v. Fla.

Workers’ Comp. JUA. Inc. 793 So 2d 978, 979 (Fla. 2d DCA 2001).

25. Furthermore, an affidavit that states a legal conclusion should not be relied

upon unless the affidavit also recites the facts which justify the conclusion.

Acquadro v. Bergeron. 851. So. 2d 665, 672 (Fla. 2003); Rever v. Lapidus, 151 So 2d

61,62 (Fla. 3d DCA 1963).

26. In this case the Affidavits contained conclusions of law that were not

supported by facts stated therein. Specifically, affiants averred that the Plaintiff ;

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a) Owns and Holds the note in a principal amount described in the

Plaintiff’s Complaint dated September 27, 2006.

b) Plaintiff holds and owns the Promissory Note and Mortgage.

c) the Plaintiff retained The Florida Default Law Group. to represent it in

this matter and has agreed to pay a reasonable fee for said

representation.

27. These constitute three legal conclusions, but fail to support either of those

conclusions with any documentary evidence to support those legal conclusions.

Neither do any of the Affiants claim to be licensed to practice law.

28. If the evidence raises any issue of material fact, if it is conflicting, or if it

permits different inferences, the matter is to be submitted to the jury. Johnson v.

Treasure Coast Plaza Ltd, 670 So.2d 1199, 1201 (Fla. 4th DCA 1999), citing Moore v.

Morris, 475 So.2d 666, 668 (Fla. 1985).

29. If the record reflects even the possibility of any issue or the record raises

even the slightest doubt that an issue might exist, that doubt must be resolved

against the moving party and summary judgment must be denied. Nard, Inc. v.

DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000)

(emphasis supplied), citing Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995).

30. When a plaintiff moves for summary judgment before the defendant has filed

an answer, "the burden is upon the plaintiff to make it appear to a certainty that no

answer which the defendant might properly serve could present a genuine issue of

fact." Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla.

2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980

(Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment

before the defendant files an answer, "it [is] incumbent upon them to establish that

no answer that [the defendant] could properly serve or affirmative defense it might

raise" could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese

Price Found., Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987) (holding that when a

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plaintiff moves for summary judgment before the defendant files an answer, "the

plaintiff must conclusively show that the defendant cannot plead a genuine issue of

material fact").

31. In LaSalle Bank Nat. Ass'n v. Lamy, 824 N.Y.S.2d 769, 2006 WL 2251721

(Sup.2006). When a state agency found that MERS is a mortgage banker subject to license

and registration requirements, MERS appealed to the Supreme Court of Nebraska and

outlined its very limited role as nominee. "Subsequently, counsel for MERS explained that

MERS does not take applications, underwrite loans, make decisions on whether to extend

credit, collect mortgage payments, hold escrows for taxes and insurance, or provide any loan

servicing functions whatsoever. MERS merely tracks the ownership of the lien and is paid for

its services through membership fees charged to its members."

32. In Mortgage Electronic Registration Systems, Inc. v. Nebraska Department of

Banking and Finance, 704 N. W.2d 784 (Neb.2005). "MERS argued that it does not acquire

mortgage loans and ... only holds legal title to members' mortgages in a nominee capacity and

is contractually prohibited from exercising any rights with respect to the mortgages (i.e.,

foreclosure and assignment) without the authorization of the members. Further, MERS

argued that it does not own the promissory notes secured by the mortgages and has no right

to payments made on the notes." Id. Emphasis added. "Documents offered during the

Department hearing support the limited nature of MERS' services."

33. Based on the explanation from MERS itself and documents presented by MERS and

reviewed by the Supreme Court of Nebraska, it is undisputed that MERS serves in a very

limited capacity and holds no substantive rights. MERS is contractually prohibited from

exercising any rights in a foreclosure case without the authorization of the lender, and that

prohibition was confirmed by MERS itself.

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There is no evidence of any authorization being possessed by MERS in the instant case.

Other courts around the country have likewise recognized the limited role that MERS plays

as nominee. "We specifically reject the notion that MERS may act on its own, independent of

the direction of the specific lender who holds the repayment interest in the security

instrument at the time MERS purports to act. .. Nothing in the record shows that MERS had

authority to act." Mortgage Electronic Registration Systems. Inc. v. Southwest Homes of

Arkansas, 2009 WL723182 (Supreme Court of Arkansas, 2009). "MERS's role in this

transaction casts no light on the contractual issues raised in this case." Id. "The relationship

that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all

the rights given a buyer." Landmark National Bank v. Kesler, 216 P.3d 158 (Supreme Court

of Kansas, 2009). "MERS presents no evidence as to who owns the note, or of any

authorization to act on behalf of the present owner." In Re Vargas, 396 B.R. 511

(Bankr.C.D.Cal. 2008). "As noted above, MERS purportedly assigned both the deed of trust

and the promissory note to Consumer ... however, there is no evidence of record that

establishes that MERS either held the promissory note or was given the authority by

American Mortgage INC to assign the note ... Accordingly, the Court should conclude that

there is insufficient evidence that Consumer has standing to proceed with this litigation."

Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D.Cal. 2008). Not only are

there substantive deficiencies with an assignment from MERS, but the instant assignment

was also untimely. The assignment was constructed on October 2, 2006, However, the

assignment was not filed in the public record until October 3, 2007 - more than twelve

months after the assignment was completed. As stated above, there is no indication on the

assignment that the note and mortgage were physically transferred prior to that date. "[T]he

plaintiffs lack of standing at the inception of the case is not a defect that may be cured by the

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acquisition of standing after the case is tiled." Progressive Exp. Ins. Co. v. McGrath

Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005). "If on the date the Provider

tiled the original statement of claim Mr. Joseph had not assigned benefits to the provider,

only Mr. Joseph had standing to bring the action. It follows that the Provider would have

lacked standing under these circumstances, and the case should have been dismissed." Id.

CONCLUSIONS

34. Plaintiff herein has moved for summary judgment without complying with

the Fair Debt Collection Practices Act and has never perfected service on any court

papers, including the Lis Pendens and Original Complaint. Defendants state under

penalty of perjury and will swear testimony at the Hearing on July 19, 2010 that

they have never received any of the court papers that have borne a Certificate of

Service listing them on the ‘attached list.’ All Court Hearings, scheduled [including

those cancelled] have been arranged ex-parte despite Plaintiff’s request for Default

being ‘Not Issued’ by the Court because no process of service existed.

35. Hearsay Affidavits of Amounts Due and Owing were filed by Plaintiffs

Attorneys who arranged for their production by non-party, CHASE HOME FINANCE

LLC, who claim without any evidence to be the loan servicer, to deliberately mislead

this Court with the sole purpose of obtaining unjust enrichment by stealing real

property, the homestead of the Defendants and obtaining the Courts co-operation in

their fraudulent activities and that of their Attorneys at the Florida Default Law

Group. Plaintiffs have no Standing, have not suffered any damage at the hands of the

Defendants, have come to this Court with unclean hands, their Attorneys have been

previously sanctioned and recently severely criticized by Judge Bailey, the former

Chair of the Supreme Court of Florida Task Force on Foreclosures when she

sanctioned HSBC Bank and cancelled the loan on the property. In this case both

Plaintiff and its counsel were aware that it had deliberately submitted a Sham

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Pleading and that their statements in the Complaint stating that they had filed in the

Court an Allonge to the [lost] note and the Assignment of Mortgage in the knowledge

that no such documents existed and knew that they had falsified these documents in

order to defraud the Court. Further both Plaintiffs and their Attorneys were aware,

or should have known that those documents were not so attached. Further they

were not only aware, but complicent in the manufacture of a fraudulent [and

backdated to appear to posses a Cause of Action on the date the action was filed]

MERS Assignment of Mortgage and its subsequent filing all in violation of Florida

Criminal Statutes and the provisions of Fla.R.Civ.Pro.1.130.

36. The Plaintiff’s Complaint alone raises numerous genuine issues of material

fact including who the real party in interest is or may be, the lack of any valid

transfer of the full and unencumbered interest in the Note and Mortgage, and states ,

[in conflict with the Florida Bankers report to the Supreme Court of Florida] that it

had ‘lost’ the Original Note which they knew, or should have known was deliberately

eliminated immediately after the loan closing.

37. These genuine issues of material fact alone, which have been raised within

the Plaintiff’s own Complaint and Plaintiff’s conflicting filings in the Court and in the

public records preclude the granting of summary judgment as a matter of law.

38. Plaintiff is NOT the owner of the Note, the original promissory note was NOT

lost or destroyed subsequent to Plaintiffs acquisition, Defendant did NOT execute

and deliver a promissory note to AMERICAN MORTGAGE GROUP INC and a

purchase money mortgage to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS

INCORPORATED AS NOMINESS FOR AMERICAN MORTGAGE GROUP INC. and the

full amount [or any amount] is NOT due to Plaintiff, the three conflicting Affidavits

of Indebtedness are unverified hearsay documents, longstanding and recent

decisional law clearly states that where the slightest doubt exists summary

judgment is not appropriate and the Court does not have subject matter jurisdiction

by virtue of the frivolous nature of this lawsuit.

39. When exhibits are inconsistent with Plaintiff’s allegations of material

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facts as to who the real party in interest is, such allegations cancel each other out.

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

Costa Bella Development Corp. v. Costa Development Corp, 411 So.2d 114 (Fla. 3d. DCA

1983). Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v.

Triple D Properties, Inc. 424 So.2d 185, 187 {Fla. 4th DCA 1983) Costa Bella

Development Corp. v. Costa Development Corp, 411 So.2d 114 (Fla. 3d. DCA 1983).

40. The Complaint is filed by THE BANK OF NEW YORK MELLON F/K/A THE

BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT INC.,

ALTERNATIVE LOAN TRUST 2006-2CB MORTGAGE PAS-THROUGH CERTIFICATES.

The SEC filings quoted hereinabove clearly establish that the quoted ‘Trust’ is a

securitized REMIC Trust that would have required a transfer of the Note and the

Mortgage at the time this ‘Trust’ certified to the IRS that it had purchased the subject

and all other loans ‘without recourse’ from CWALT INC., who in turn would have

been required to show negotiated transfers of the note and assignments of the

mortgage showing a chain of title from the ‘Lender’ – AMERICAS WHOLESALE

LENDER – through each of COUNTRYWIDE HOME LOANS INC., PARK GRANADA

41. Affiant, Barraza, purports to have personal knowledge of the loan but does

not verify that statement and Defendant understands that she will not be in Court to

testify and be subject to cross examination and her Affidavit is hearsay and

inadmissible. Further the Affiant states that the records are compiled in a computer

data bank and that those records properly reflect loan payments, charges and

advances that are contemporaneously noted in the records at the time of the

applicable transactions by persons whose regular duties include recording this

information.

42. The admission that the records are compiled by third parties and in an

electronic form must mean that the Affiant has no personal knowledge of the facts

and cannot produce any books of account. Florida Statute 90.901 states in pertinent

part, that authentication or identification of evidence is required as a condition

precedent to its admissibility.” The failure to authenticate documents referred to in

this Affidavit renders the affiant incompetent to testify as to the matters referred to

in the affidavit.

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43. Affiant Barraza is believed to be one of hundreds of such people employed by

loan servicers who are known to specialist Foreclose Defense Attorneys as ‘Robo-

signors.’ In the event that this Court does not Strike this Sham Complaint Defendant

intends to depose Affiant Barraza.

Thus on more than one count, Plaintiff through its counsel, thus

wrongfully and fraudulently represented to this Court that it had the legal

standing to not only file the instant action, but to also foreclose..

WHEREAS Defendants THE ANDERSONS, move this Court to deny the Plaintiff’s

Motion For Summary Judgment, Strike With Prejudice Plaintiff’s Complaint as a Sham

Pleading, to Order Summary Judgment in Defendants’ favor, to Dismiss this Case with

Prejudice, Sanctions and legal costs (if any) the Defendants incur and any other and

further relief which is just and proper.

In the event that this Court does not Order the Plaintiff’s Motion to Strike or fails to

Order the Dismissal of this case, Defendant intends to instruct legal counsel and to

file an Answer, Affirmative Defenses, Motion, a Counterclaim, Declaratory Relief,

Demand for Jury Trial and any other appropriate pleadings that their future counsel

advises. Having regard to the twenty-six listed frauds, the Complaint and all

subsequent filings are a Nullity. Defendants therefore move this Court [in addition

to matters previously moved to Vacate/Set Aside the inappropriate Order for

Docket Sounding listed for July 19, 2010.

CERTIFICATE OF SERVICE

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THE UNDERSIGNED HEREBY CERTIFIES that a true and correct copy of the foregoing Verified Motion has been forwarded by fax and via certified, return receipt requested, U.S. Mail, to Kenzi n. Sadlak, Florida Default Law Group, 21932 SW94 Ave, Cutler Bay 33190-1237 on this 12tht day of July, 2010

____________________________ ____________________

NORMAN CRAIG ANDERSON SHANNON ANDERSON

STATE OF FLORIDA

COUNTY OF LEE

PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the aforesaid County and State, on this the 12th day of July, 2010 within my jurisdiction, the within named NORMAN CRAIG ANDERSON AND SHANNON ANDERSON who acknowledged to me that they are the Affiants signing this document, known to me to be the persons whose names are subscribed to the foregoing instrument, and they acknowledged to me that they executed the same for the purpose and consideration therein expressed as their act and deed and in the capacity therein stated. They are personally known to me or produced Florida Drivers Licenses proving their Identities and did take the oath.

WITNESS my hand and official seal in the County and State last aforesaid the _____day of _____________, _____.

____________________________________________

Notary Public

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ATTACHED EXHIBITS

A.) BAC FUNDING CONSORTIUM INC. ISAOA/ATIMA v.GINELLE JEAN- JACQUES, SERGE JEAN-JACQUES, JR., and U.S. BANK NATIONAL ASSOCIATION Case No. 2D08-3553 (DCA 2nd District 2010)

B.) AURORA LOAN SERVICES, LLC vs. JUDITH MENDES DA COSTA (20 th Judicial Circuit Court, Collier County, CASE NO.: 09-142-CA)

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