bowers motiontodismiss

8/8/2019 Bowers Motiontodismiss

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IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT OF

IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO:10-002615 (18)

AMERISAVE MORTGAGE CORPORATIONPLAINTIFFVs.

ANGELINE BOWERS, et al.DEFENDANT(S) ________________________________/

MOTION TO DISMISS

The Defendant, Angeline Bowers, pro se, hereby file this, his Motion to Dismissthe above styled Complaint and in support thereof states that:

I. FAILURE TO POST A NON-RESIDENT COST BOND

1. The Plaintiff has not alleged that it is a registered Florida Corporation or that it is authorized to do business in the State of Florida.

2. Upon knowledge and information, the Plaintiff is a non-resident to theState of Florida.

3. Florida Statute 57.011 provides, in pertinent part:Costs; security by non-residents.When a non-resident plaintiff begins an action… he or she shall filea bond with surety to be approved by the clerk of $100, conditioned

to pay all costs which may be adjudged against him or her in saidaction in the court in which the action is brought. On failure to filesuch bond within 30 days after such commencement or suchremoval, the defendant may, after 20 days’ notice to plaintiff (duringwhich the plaintiff may file such bond move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an executionshall issue against said attorney.

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II. FAILURE TO STATE CAUSE OF ACTION

4. The Plaintiff’s foreclosure action is based on a breach of the promissorynote which is essence is a breach of contract claim. The Plaintiff’sComplaint should be dismissed because in order to maintain an action for breach of contract, a claimant must first establish performance on its partof the contractual obligations imposed in the contract. Babe, Inc. v. BabiesFormula Services, Inc., 165 So 2d 795 (Fla 3 rd DCA 1964)

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5. The Plaintiff fails to even prove that all conditions precedent to the filing of this action have been complied with. On the contrary, conditionsprecedent to the filing of this action have been violated and failed to meettheir contractual obligations. According to the Mortgage Agreement thePlaintiff must give written notice with certain details to the Borrower prior

to the acceleration of the mortgage. In Plaintiff’s Complaint, the Plaintiff has clearly accelerated the loan and has failed to allege that it hasperformed the conditions precedent to not just accelerating the loan butfiling this action.

6. Furthermore, the Complaint as it stands on its face is invalid as it fails tocomply with the requirements of Florida Statute 673(2) which states:

(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and theperson’s right to enforce the instrument. If that proof is made, s.673.3081 applies to the case as if the person seeking enforcementhad produced the instrument. The court may not enter judgment in

favor of the person seeking enforcement is adequately protectedagainst loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may beprovided by any reasonable means.

7. There is no evidence presented in the Complaint that the Defendant isadequately protected against loss that might occur by reason of a claim byanother person to enforce the instrument. The Complaint does notindemnify the Defendant from any third party claims.

8. Pursuant to Florida Statute 673, the Plaintiff when attempting to re-establish a lost instrument must allege that they will indemnify and holdharmless the Defendant from any loss that the Defendant may incur byreason of a claim by another person to enforce the lost note andmortgage. The Plaintiff’s Complaint fails to make such allegation eventhough the Plaintiff is attempting to re-establish the note.

9. Furthermore, the “adequate protection” pursuant to F.S. 673 is unstated,undefined, undescribed, nor documented in any manner within the four corners of said Complaint.

III. LOST INSTRUMENT

10.The original Note and Mortgage are not attached to the Complaint asrequired by Florida Rules of Civil Procedure

11.To recover on a lost Note or Instrument, the Plaintiff must prove 1) theexistence of Note in question, 2) that the Defendant signed the instrument,3) that the Plaintiff is the owner or holder of the Note in due course, 4) thata certain balance, as stated in the complaint, is due and owing.

12. The original Note, signed in ink, must be produced prior to any further actions on the part of the Plaintiff.

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13. Claims of damages, to be admissible as evidence, must be accompaniedby or incorporated by records such as a general ledger or payment historyand an accounting of an alleged unpaid promissory note, the personresponsible for preparing and maintaining the account ledger mustprovide complete accounting sworn to and dated by the person who

maintained the ledger.14. If the original ink signed note, the named Plaintiff may not be the “holder in due course” of the note and only an agent or nominee for the truebeneficial owners and holders in due course.

15. Fraud on the Court may exist in that the named Plaintiff may not have anyinterest to the note and the supposedly lost note is not lost, but may havebeen intentional destroyed due to missing assignments which may havemade it legally null and void ; thus having exploited key and vital evidence.

16.There is no proof that the Plaintiff ever held the note or took possession of the note thus has no claim or right to bring this action/foreclosure.

17. There is no proof, without the original note, that a proper chain of

assignments and that the lien positions were properly perfected.18.Other unnamed and undisclosed parties in interest may have claim to thenote and be the rightful beneficial owners to the note and must beidentified and brought before the Court.

19.There may exist several/numerous unnamed and undisclosed real partiesin interest may have claim to the note and be rightful beneficial owners of the note.

20. In an electronic age, it is a simple matter to place someone’s signature or image upon a document, furthermore, it is difficult to imagine that such avaluable negotiable instrument being lost or missing without nefariousmotive.

21. If the note was destroyed or lost intentionally ( the industry maintains thispractice) then they may be attempting to conceal or hide the beneficialowners and shield them from any assignee liability arising from the actionsof the serviced whom they hired, supervise and most importantlyauthorized to foreclose upon the Defendant(s), without the note, sincesubsequent endorsements are not recorded to avoid payment of taxesand to hide true and real beneficial interests, there is no possible way todetermine who ever held a rightful interest in the subject note and whomay have claims or counter-claims against and who should be presentlybefore the Court as a real party in interest.

22. Notes are pledged, sold, bifurcated and traded in various derivativetransactions and their transfers, sales, pledges, etc are not publiclyrecorded. As such, only possession of the actual original note can provethe actual owner and holder in due course who can make an offer of payment for the purchase of payment of the note by any other party.

23.If the note has been pledged and encumbered, then the party must bemade aware of the foreclosure and your right to negotiate with them apayment and release of the note by the defendant, other lien holders or private parties.

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24. Defendant(s) or their counsel needs to inspect the physical note todetermine who the real parties were that held and endorsed the subjectnote, due to the fact that counter-claims and other actions may existbased on improperly inflated principal balance, amount owed or escrowaccount by not applying payments properly and correctly, adding fees not

legally owed by the Defendant to the principal balance, miscalculating theinterest and not properly amortizing the subject loan, fraudulent selling of the loan or misreporting the defendant(s) on credit reports.

25. The complaint fails to include the master transaction histories and generalledgers for the subject account since a “dump”, “summary”, or redactedrecord cannot be relied upon to determine the rightful amounts owed. It isthe note holders duty and responsibility to validate the claims andallegations being made in the Complaint on the note and the amountowed. It is the responsibility to validate the claims being made on the noteand the amounts owed. If the Plaintiff is in control of the master records,and failed to attach said records to the Complaint, Defendant(s) has no

basis to admit or deny the allegations. If the master records or claim thatthe records of prior servicers are missing, then there is no rightful way for the Plaintiff to prove the balances and amounts they claim are owed.

IV. THE COMPLAINT ALLEGATIONS CONTRADICT THE RELIEFSOUGHT AND THE ATTACHED MORTGAGE AND NOTE

26.The attached mortgage, paragraph 22 requires that the mortgagee providewritten notice of acceleration with a 30 day cure provision and other required information.

27.The Plaintiff clearly violated their own mortgage provision, in addition to aviolation of the Fair Debt Collection Practices Act 15 U.S.C. SECTION1692, AS AMENDED.

28.The Plaintiff did not properly accelerate the mortgage it seeks to forecloseunder Florida and/or Federal law.

29.Amerisave Mortgage Corporation failed to properly and timely acceleratethe mortgage and note by failing, thus Amerisave Mortgage Corporationfailed to comply with all conditions precedent to bring the action, and isestopped or has waived its right to foreclose, or otherwise has uncleanhands and cannot foreclose.

30. All contacts upon which an action may be sought or defense made, or acopy thereof or a copy of the portions thereof material to the pleadings,shall be incorporated in or attached to the pleading.

31. Contractors v Nortrax Equip. 833 So. 2d 286 (Fla. 5 th DCA 2002)informs the Court that it must dismiss for this shortcoming:

32. “ A complaint based on a written instrument does not state a causeof action until the instrument or an adequate portion thereof, is attached toor incorporated in the complaint. Samuels v King Motor Co. of FortLauderdale, 782 So. 2d 489 (Fla 4th DCA 2001)

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33. Moreover under Hillcrest Pacific Corp. v Yamamura, 727 So 2d1053 (Fla 4th DCA 1999), exhibits attached to a pleading shall beconsidered a part thereof for all purposes. Therefore the Court mustconsider and examine the Complaint with the mortgage attachments todetermine the bona fides of Amerisave Mortgage Corporation allegation

that it has the right to enforce the note.

V. ACCOUNTING

34.Amerisave Mortgage Corporation failed to comply with the conditions andterms of the mortgage and note and/or 12 U.S.C 2601, et seg (RESPA)with respect to the proper computation, collection and application of themortgage payments and the escrow account and payments.

35.Amerisave Mortgage Corporation collected payments, but failed toproperly credit the Defendant’s account, and or collected mortgagepayments and/or escrow payments and did not properly credit or post the

payments to the Defendant’s account in violation of the mortgage andnote.36.The Defendant made payments to Amerisave Mortgage Corporation

during the term of September 2009 thru January 2010 and the Plaintiff didnot properly post or credit the Defendant’s account.

37.Attached hereto as Exhibit “A” is a letter dated February 2, 2010 clearlystating the amount due and the time period for which it was due from thePlaintiff.

38.This exhibit contradicts the allegations contained in the Complaint, to wit;Paragraph 10 of Count II, which alleges payments due from September 1,2009 and all subsequent payments have not been made.

39. Aforementioned Exhibit “A” further attests to the fact that thePlaintiff is unsure and without knowledge as to the status of the serviceprovider and therefore the owner of the Note, to wit; “If you have anyquestions or you have sent this payment to another lender ….”

40.Therefore, the Defendant is entitled to an accounting of all moneys thePlaintiff has collected from the inception of the loan to the present and allthe moneys paid out of the Defendant’s account because of AmerisaveMortgage Corporation non-compliance with the mortgage and note terms.

41. As a result of the improper collecting and posting of payments tothe Defendant’s account and improper payment of moneys that AmerisaveMortgage Corporation collected and/or paid, Amerisave Mortgage

Corporation is estopped or has waived its right to foreclose, or otherwisehas unclean hands and cannot claim a default and/or accelerate and/or foreclose the mortgage.

VI. IMPROPER SERVICE OF PROCESS PURSUANT

TO FLORIDA STATUTE CHAPTER 48

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42.Service of process was perfected upon the Defendant’s brother on Jan 30,2009 and docketed with this Court on February 8, 2010.

43.Defendant’s brother does not reside at the subject property.44.Defendant’s brother was not served at the subject property.45.Defendant’s brother has no interest, in law or equity, to the subject

property.46.Defendant, at no time or in any manner, was evasive of service of process.

47.Defendant resides at the property address on a full time and continuousbasis.

48.Defendant does not have another address in which she may reside in nor does she possess, or ever possess a off site postal address.

49.Plaintiff knew, or should have known, pursuant to the 1003 (mortgageapplication) for the subject loan, the Defendant’s place of employment andcorresponding address, which has remained unchanged.

50.Therefore, substitute service was unnecessary and caused

embarrassment and undue hardship for the Defendant.51. Plaintiff failed to comply with F.S. 48.52.Furthermore, statutes that govern service of process are to be strictly

construed to insure that a defendant receives notice of the proceedings53. The burden of proving the validity of the service of process is on the

Plaintiff . Carter v. Lil Joe Records, 829 So. 2d 953 (Fla. 4th DCA 2002).54. “[S]trict compliance with service of process procedures is

required.” Baraban v. Sussman, 439 So. 2d 1046, 1047 (Fla. 4th DCA1983) (citing - Electro Eng’g Prods. Co. v. Lewis, 352 So. 2d 862 (Fla.1977)). “The burden of proof to sustain the validity of service of process ison the party seeking to invoke the jurisdiction of the court.” Henzel v. Noel ,

598 So. 2d 220, 221 (Fla. 5th DCA 1992) (citing Carlini v. State Dep’t of Legal Affairs, 521 So. 2d 254 (Fla. 4th DCA 1988)).55. Ineffective service cannot become effective simply through the

Defendant's knowledge of the proceeding.56. Absent strict compliance with the statutes governing service of

process, the court lacks personal jurisdiction over the defendant. SierraHolding v. Inn Keepers Supply, 464 So. 2d 652 (Fla. 4th DCA 1985)

WHEREFORE, for the above stated reasons and strict evidence in support

thereof, the Defendant respectfully request this honorable Court to dismiss thePlaintiff’s Complaint without prejudice in its entirety and award any other entitlements that this Court deems appropriate.

CERTIFICATE OF SERVICE

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I HEREBY CERTIFY, that a true and correct of the foregoing was sent via U.S.Mail to Kahane & Associates, P.A.. at 8201 Peters Road, Suite 3000, Plantation,FL 33324, on this _____ day of February, 2010, and the original was filed withthe above Court.

X_________________________ Angeline Bowers

Defendant, pro se

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ANSWER TO SUMMONS AND COMPLAINT -In a civil case, an answer is

the defendant's written response to the plaintiff's complaint. It must be filedwithin a specified period of time, and it either admits to or (more typically)denies the factual or legal basis for liability. Some states allow an answer tostate a lack of knowledge as to whether a particular allegation is true or false.The answer may also include "affirmative defenses" including allegationswhich contradict the complaint or contain legal theories (like "unclean hands,""contributory negligence" or "anticipatory breach") which are intended toundercut the claims in the complaint. If the defendant fails to file an answer,the plaintiff usually wins by default. There are rules of evidence which governthe formalities and time period required in filing an answer. The answer isusually filed along with a proof of service of the same upon the other parties

to the action.

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IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT OF FLORIDA,


CASE NO: _______________ ________________________ ________________________

PLAINTIFF

Vs.

_________________________ et al.DEFENDANT(S)

_________________________________/

DEFENDANT(S) FIRST ANSWER TO COMPLAINT

COMES NOW the undersigned Defendant(s), acting pro se, files thisanswer, to the above styled Complaint and states as follows:

1. Defendant(s) admits the allegation of venue

2. Defendant(s) admits the allegation of ownership.

3. Defendant(s) is/are without knowledge or lacks sufficientinformation to admit or deny all other allegations contained in thefour corners of Plaintiff’s Complaint and demands strict proof thereof.

4. Defendant(s) has / have no knowledge of the veracity of theamounts due and owing stated in the Complaint and will admit tosame, if accurate, after proof from discovery, and therefore at thistime deny same.

5. Defendant(s) specifically reserves the right to amend the Answer,

file Affirmative Defenses, and/or Counter-Claims, based on futurediscovery, as otherwise permitted by law and Florida Rules of CivilProcedure.

WHEREFORE Defendant(s) respectfully requests the opportunityto re-establish the original Note by and through a forbearance /

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repayment agreement of mutual consent, upon receipt of strictaccounting. Defendant(s) also requests additional reinstatementoptions, “short sale” option without a deficiency judgment or unearnedincome liabilities, or loan modification. This proposal is for settlementpurposes only and in no way, either, expressed or implied, affirms

indebtedness. Defendant requests to enter into a foreclosureavoidance agreement with Plaintiff.

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the foregoingAnswer was mailed via First Class United States mail, this ____ day of ____________, 20____ to the address below and the original of which wasfiled with the Clerk of the above Court.

True copy sent to Plaintiff’s Attorney: __________________ __________________ __________________ __________________

Respectfully submitted,

X______________________ Printed name:

Defendant, pro se

X______________________ Printed name:

Defendant, pro se

Defendant(s) Mailing Address: _______________________ _______________________ ________________________

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CERTIFICATE OF FILING INTERROGATORIES – A notice to the Court thatInterrogatories have been served on the Plaintiff.

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CASE NO: _______________ ________________________ ________________________

PLAINTIFF

Vs.

_________________________ et al.DEFENDANT(S) _________________________________/

DEFENDANT(S) CERTIFICATE OF SERVING INTERROGATORIES

I HEREBY CERTIFY that interrogatories have been propounded toPlaintiff and served with a copy of this certificate by regular U.S. Mailthis ___ day of _____________, 20___ to:

Attorney for Plaintiff: __________________ __________________ __________________ __________________

BY:____________________ Defendant(s), pro se

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INTERROGATORIES- Part of the pre-trial discovery (fact-finding) process inwhich a witness provides written answers to written questions under oath.The answers must be returned within a specified time, usually 30 days, andoften can be used as evidence in the trial. Objections as to relevancy or clarity may be raised either at the time the interrogatories are answered or when they are used in trial. Most states limit the number of interrogatories,which vary by state, that may be asked without the court's permission tokeep the questions from being a means of harassment rather than a sourceof information.

For further information and details regarding this subject, please refer toFlorida Rules of Civil Procedure, Rule 1.340

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CASE NO: _______________ ________________________ ________________________

PLAINTIFF

Vs.

_________________________ et al.DEFENDANT(S) _________________________________/

DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF

Defendant(s) propounds the following interrogatories to the Plaintiff,and requests they be answered under oath within thirty (30) days of service pursuant to the Florida Rules of Civil Procedure.

DEFINITIONS AND INSTRUCTIONS

1. Response to any interrogatory by reference to a document. Theterm “document” or “documents” shall mean all original writingsof any nature whatsoever and all non-identical copies thereof inyour possession, custody and control, regardless of wherelocated, and regardless of whether printed or reproduced by anyprocess, or written and/or produced by hand, or stored in anyform of mechanical or electronic information retrieval systemincluding computer data files, and whether or not claimed to beprivileged or otherwise excludable from discovery and including,

but not limited to, contracts, agreements, records, taperecordings, any and all appraisals, correspondence, memoranda,communications, reports, studies, summaries, compilations,abstracts, minutes or records of all meetings, including directors,shareholders, and executive officer meetings, notes, agenda,bulletins, notices, announcements, statements, instructions,charts, manuals, brochures, schedules, price lists, telegrams,teletypes, papers, books, accounts, letters, photographs, objects,

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transcriptions of oral statements, court papers, or any tangiblething.

2. The terms “concerning” or “concerns” as used herein meansreferred or referring to, alluded to related or relating to,connected with, regarding, describing or reflecting.

3. 3. The terms “you” or “your” as used herein shall mean the partyto whom these are directed and each and every name by whichsaid party is known or has been known and all present andformer agents, employees, representatives, attorneys and allother persons acting on its behalf of said party and may alsoinclude the original lender as defined herein.

4. The term “person” as used herein means the plural as well asthe singular and shall include any natural person, corporation,partnership, joint venture, association, governmental agency,and every other form of entity cognizable by law.

5. The term “and “and “or” shall be both conjunctive and

disjunctive.6. The term “original lender” as used herein shall mean the lender

who made the loan or loans as defined herein.7. The term “Loan” as used herein shall mean the loan evidenced

by the promissory note and mortgage executed by theDefendant(s).

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INTERROGATORIES

INTERROGATORY NO. 1 – State the name and address of allparties answering or assisting in providing answers to thesesinterrogatories, including all contact information, i.e. address, phonenumber, relationship, title, etc.

INTERROGATORY NO. 2 Please state whether you claim topossess legal or beneficial interest, or both, in the note or mortgage

or both the note and mortgage, and if so, explain why you claimsuch and identifying and document(s) and clauses therein whichgives you the interest)s) you claim and specifying whether youclaim rights as an owner or holder of the note or both, andspecifying any other rights claimed. If you do not claim any suchinterest(s) or rights please explain why you do not claim suchinterest(s)

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INTERROGATORY NO. 3- Please state whether you claim topossess the authority or power to file and pursue foreclosure of thisnote or mortgage or both, and if so, explain why you so claimidentifying any document(s) and clauses therein which gives youthe authority or power you claim. If you do not claim such authorityor power, please explain why you do not claim such authority orpower.

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INTERROGATORY NO. 4 – Please state, for each of the note andmortgage, from what person or entity (“assignor”) you tookassignment of the Loan specifying the contact name, full legal

name, address and phone number of the assignor together with thedate you took assignment, and state the same information for anyperson or entity to which the Loan was ever assigned.

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INTERROGATORY NO. 5 – Please state the date, amount andnature of and fully describe the consideration or value given inexchange for each and every assignment of the Loan and identifyfrom and to what person or entity such consideration or value wasgiven providing the contact name, full legal name, title, address,

and phone number of each such person or entity.

INTERROGATORY NO. 6 – Please state all parties that tookassignment of the note or mortgage between the making of same

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and your taking assignment of same and provide the contact name,title, full legal name, address and phone number of each party andthe entity they are associated with.

INTERROGATORY NO. 7 – Please state whether between the timeof making the Loan and the time of your taking assignment of theLoan, the original lender maintained ownership of the Loan.

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INTERROGATORY NO. 8 – Please state, whether and on what date,the Plaintiff, owned the Loan, took assignment of the Loan, made anassignment of the Loan, or had any interest in the Loan and specifythe nature of the interest on that date.

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INTERROGATORY NO. 10 – Please state whether the Loan was

ever repurchased or reassigned from the buyer or assignee back tothe original seller or assignor or to any predecessor of the buyer orassignee and if so state the dates of such and the parties with fullcontact information involved.

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INTERROGATORY NO. 11 – Please explain and describe, for theLoan, the relationships among parties (including you, the originallender, any servicer, any custodian, any depository, any Special

Purpose Vehicle or Special Purpose Entity, etc), the structure of thesecurities offered (including the flow of funds or any subordinationfeatures) and any other material features of any transactionconcerning the sale, transfer or assignment of the Loan or theDefendant’s property at any time between making of same andyour filing of the action at issue herein.

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INTERROGATORY NO. 12 – Please state whether the Plaintiff everowned an interest in the Defendant’s real property being foreclosed.If so, please state when and for how long and why did the Plaintiff acquire an interest in the Defendant’s real property being

foreclosed.

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INTERROGATORY NO. 13 – Please state if there exists any and alldraft appraisals, final appraisals, lenders review appraisal, appraisalcompany(ies) utilized name, contact information, any and alllicenses and all contact information for Lender’s review appraiser.

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INTERROGATORY NO. 15- Please state if the borrower received 2copies of a correct Notice of Right to Cancel, 1 copy of TILDisclosure Statement pursuant to Regulation Z 226.23(a)(3) and didthe consumer receive three (3) business days prior toconsummation of the mortgage transaction all disclosures pursuantto section 226.32 .

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INTERROGATORY NO. 16- Please state whether you, the Plaintiff,have directly or indirectly received any money, funds, financialconsiderations, guarantees or any other financial assurances fromthe U.S. Federal government in any way associated with the federalprogram commonly called the Troubles Assets Relief Program(TARP), and or through the Emergency Economic Stabilization Act of 2008 enacted on October 3, 2008, and if so, the date and or datesyou received said money, funds, financial considerations,guarantees or other financial assurances, the date of yourapplication, your receipt, the amount(s) involved, and whether and

if so when you paid back any or all said money funds,considerations, guarantees or other financial assurances.

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INTERROGATORY NO. 17- Please state with specificity the stepby step process by which the signatory to each endorsement and orassignment on which you intend to rely on to establish your right toenforce the subject mortgage and note, presented substantiation orotherwise identified themselves as the person so identified in the jurat/acknowledge, that said person had the right and or the abilityand or authority to sign an endorsement and or assignment onbehalf of the entity so identified in the jurat/acknowledgement, andinclude an identification of all documents that the signatory mayhave used or presented to the notary.

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I HEREBY CERTIFY that a true and correct copy of the foregoingInterrogatories were mailed via First Class United States mail, this ____ day of ____________, 20____ to the address below. True copy sent to Plaintiff’s Attorney: __________________ __________________ __________________

__________________


______________________ Defendant, pro se

Defendant(s) Mailing Address:

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_______________________ _______________________ ________________________

CERTIFICATE OF FILING FOR PRODUCTION- A notice to the Court that aRequest For Production has been served on the Plaintiff.

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CASE NO: _______________ ________________________ ________________________

PLAINTIFF

Vs.

_________________________ et al.DEFENDANT(S) _________________________________/

CERTIFICATE OF SERVING DEFENDANT’S FIRST REQUEST TO

PLAINTIFF FOR DOCUMENTS AND PRODUCTION

I HEREBY CERTIFY that Defendant’s First Request to Plaintiff ForDocuments and Production have been propounded to Plaintiff and

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served with a copy of this certificate by regular U.S. Mail this ___ day of _____________, 20____ to:

Attorney for Plaintiff: __________________

__________________ __________________ __________________

BY:____________________ Defendant(s), pro se

REQUEST FOR PRODUCTION- A request for production is part of thediscovery (fact-finding) process that occurs prior to trial. Either party may

send such a request to an opposing party or witness. If you are served with arequest for production, you have a certain time period, usually 30 days, toprovide the asking lawyer with your written reply, stating which documentsyou have in your possession and to make those documents available for theasking lawyer to review and copy. Sometimes, lawyers attach copies of thedocuments to the written reply.

For further information and details regarding this subject, please refer toFlorida Rules of Civil Procedure, Rule(s) 1.350 & 1.351

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CASE NO: _______________ ________________________ ________________________

PLAINTIFF

Vs.

_________________________ et al.DEFENDANT(S) _________________________________/

DEFENDANT’S FIRST REQUEST TO PLAINTIFF FOR DOCUMENTSAND PRODUCTION

DEFINITIONS AND INSTRUCTIONS

The Defendant, pro se, requests the Plaintiff, to produce at theDefendant’s address within the time forth in the Florida Rules of CivilProcedure for inspection and copying the following:

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DEFINITIONS

A. The term “documents” means any printed, written, recorded,electronic or graphic matter or other means of preserving thoughtor expression, and all tangible things from which information can be

processed or transcribed, however produced or reproduced,including all writings of any kind, including the originals and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise, including but notlimited to correspondence, memoranda, notes, diaries, messages,charts, ledgers, books, reports, desk or other calendars, statistics,letters, telegrams, e-mails, minutes, business records, personalrecords, account statements, appraisal request form frombroker/lender to appraisal company(ies), complete appraisal file andall drafts and documents utilized in forming said appraisal,appraiser’s certification, appraisal drafts and final appraisal, bank

statements, contracts, reports, checks, receipts, invoices, bills,returns, interoffice and intra-office communications, financialstatements, schedules, contracts, computer printouts, telefax,worksheets, all drafts, alterations, modifications, changes andamendments of any of the forgoing graphic or oral records orrepresentations of any kind including, without limitation, tapes,cassettes, discs, recording and computer memories.

B. The term “transaction” when used without qualification hereinmeans the transaction consummated by Plaintiff concerning thesubject matter of this lawsuit.

C. “And” and “or” as used herein are terms of inclusion and not

exclusion, and shall be construed either disjunctively orconjunctively as necessary to bring the scope of the request forproduction of documents and any document or information thatmight otherwise be construed to be outside its scope.

D. “Any” means one or more.E. “Relate to” and “relating to” mean to make a statement about,

refer to, discuss, describe, reflect, contain, comprise, identify, or inany way to pertain to, in whole or in part, or otherwise to be used,considered, or reviewed in any way in connection with, the specifiedsubject. Thus, documents that “relate to” a subject also includethose which specifically rejected and those which were not relied or

acted upon.F. Regardless of the tense employed, all verbs shall be read as

applying to the past, present and future as is necessary to makeany paragraph more, rather than less, inclusive.

G. The singular form of a noun or pronoun shall be considered toinclude within its meaning the plural form of the noun and pronoun,and vice versa. The masculine form of a noun or pronoun shall beconsidered to include within its meaning the feminine form of the

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noun or pronoun, and vice versa.H. “You” and “your” means the Plaintiff to whom these Requests to

Produce are addressed, including the Plaintiff’s employees, agents,and all other persons acting or purporting to act on their individualor collective behalf.

I. “Person” means any natural person, corporation, partnership,company, sole proprietorship, association, institute, joint venture,firm, government body, or other legal entity, whether privately orpublicly owned or controlled, for profit or not-for-profit, or partiallyor fully government owned or controlled.

J. “Describe”, “discuss”, “analyze”, describing”, “discussion” or“analyzing” mean any document that, in whole or in part,characterizes, delineates, explicates, deliberates, evaluates,appraises, assess or provides a general explanation of the specifiedsubject.

INSTRUCTIONS

1. If your response to any request herein is that the documents are notin your possession or custody, describe in detail the unsuccessfulefforts you made to locate the records.

2. If your response to any request herein is that the documents are notin your control, identify who has control and the location of therecords.

3. If a request herein for production seeks a specific document or anitemized category which is not in your possession, control or

custody, provide any documents you have that contain all or part of the information contained in the requested document or category.

4. Identify the source of each of the documents you produce.

REQUEST FOR PRODUCTION

1. All documents which the Plaintiff/Lender intends to introduce asevidence demonstrating indebtness to the Plaintiff

2. All documents and documentation which induced the originalLender to extend consumer credit to the Defendant and create the

subject Note and Mortgage.3. The entire file and documents submitted by the Defendant and

utilized by the original lender to extend consumer credit to theDefendant.

4. All applicable documentation normally utilized by a reputablelending institution to extend credit, including but not limited to,Defendant’s credit report at the time of the transaction, bankstatements and/or accounts, other real property holdings, stock

37



portfolio, all other assets owned by Defendant, liabilities, pay stubsor proof of income, previous tax returns, W-9’s, form 1003(MORTGAGE APPLICATION), etc.

5. Copies of Good Faith Estimate submitted to the Defendant6. Copies of Truth-In-Lending disclosure submitted to Defendant for

review prior to closing.7. Copies of Truth-In-Lending disclosure submitted to Defendant forreview at closing, even if it the same as previously requested.

8. Copies of residential real estate appraisal and all contactinformation for said appraiser, including but not limited to training,licensing and other appraisals performed by said appraiser.

9. Copies of all licenses to conduct a lawful business in the State of Florida, including but not limited to, business filing with Dept. of State, Dept. of Banking and Finance license, city occupationallicense, County occupational license, any and all licenses from theprincipals, directors, officers, employees, agents and affiliates of the

mortgage broker or lending institution which initiated the subjectloan.

10. Copies of all licenses to conduct a lawful business in the State of Florida, including but not limited to, business filing with Dept. of State, Dept. of Banking and Finance license, city occupationallicense, County occupational license, any and all licenses from theprincipals, directors, officers, employees, agents and affiliates of themortgage broker or lending institution which initiated the subjectforeclosure.

11. All correspondence/documents between broker and originallending institution.

12. All correspondence/documents between the original lendinginstitution and the Plaintiff.

13. All correspondence/documents between the original lendinginstitution or broker and the Defendant.

14. Copies of all correspondence/documents between Plaintiff andDefendant.

15. Photocopies of the front and back of every check, or otherdocument evidencing payment, used to transfer funds in the subjecttransaction including, but not limited to, payment to fund the loan,payoffs to lien holders and creditors, payment to third parties,payment of taxes, and payment of commissions, fees, bonuses, and

yield spread premiums to brokers.16. Any and all documents relating to title of subject property.17. Activity Statement of all payments remitted and applied, from

the inception of loan to present.18. Statement of Escrow Account and all documents related to such,

including but not limited to insurance invoices and property taxbills. Photocopies of the front and back of every check evidencingpayment and complete reconciliation.

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19. Copies of any and all assignments of the subject Mortgage and/orNote.

20. Copies of all considerations paid for any assignments of thesubject Mortgage and/or Note.

21. Full contact information of any and all persons, from the

inception of the Note and Mortgage, whom has knowledge of theassignments or transactions.22. Please provide the final appraisal, any and all draft appraisals, if

applicable, and appraiser’s certifications and contact information.23. Please provide all business/occupational and business licenses of

the appraiser or appraisal company utilized in the subject loan.24. Please provide a CV or resume of the actual appraiser which

conducted and submitted the appraisal to the Lender.25. Please provide a copy of actual appraiser’s State issued license

or documentation.26. Please provide the Lender’s review appraisal which was utilized

to extend consumer credit to the Defendant(s)27. Please provide the contact information for the Lender’s review

appraiser.28. Any and all documents regarding Lenders/Plaintiff

criteria/guidelines/requirements for extending consumer creditduring the time period the subject loan was originated, as defined inAs defined above.

29. What was the effective date of the aforementioned established.30. Any and all documents for the Lenders/Plaintiff’s current

criteria/guidelines/requirements for extending consumer credit.31. What was the effective date of the above mentioned established.

32. Please provide the documentation of the basis forLender’s/Plaintiff’s approval granting Defendant(s) / Borrower(s)loan.

33. All documentation, as defined above, regarding approval ordisapproval of all loans made during the same time period as theDefendant(s) loan.

34. All documentation, as defined above, regarding approval ordisapproval of all loans 1 year prior to the Defendant(s) loan.

35. All documentation, as described in defined above, regardingapproval or disapproval of all loans 1 year after to the Defendant(s)loan.

36. Any and all documents utilized to transfer/assign/sellDefendant(s)’ loan/mortgage/Note.

37. Please provide strict proof that borrower received two (2)copies of a correct Notice of Right to Cancel, 1 copy of TILDisclosure Statement pursuant to Regulation Z 226.23(a)(3) three(3) business days prior to consummation of the mortgagetransaction all disclosures pursuant to section 226.32

38. Please provide strict proof that the Plaintiff, in fact, ever had

39



actual possession of the subject Note.39. Please provide a list of all companies where such agreements

currently exist. Please provide all contact information.40. Please provide a list of all companies where such agreements

existed for the past 7 years. Please include all contact information.

41. Please provide current all documentation, as defined above,currently utilized by the Plaintiff to establish Loan Modification,including but not limited to financial work sheets, incomerequirements, income to debt ratios, bank statements, memos,manuals, proof of income or P&L statements, criteria and guidelinesfor approval and disapproval.

42. Copies of any and all fee arrangement(s) between Plaintiff andthe attorney of record.

43. Any and all documents, contracts, agreements, correspondence,E-mails, etc. between Plaintiff and the attorney of record in theinstant case.

44. All records of attorneys’ fees actually incurred or paid.45. Please identify any documents, related to the subject loan, which

have been lawfully seized, destroyed, lost, misplaced or otherwisecurrently unavailable for production purposes.

46. Any and all documents which Plaintiff intends to introduce at ahearing on a motion for summary judgment or enter into evidenceor exhibit, not previously requested or provided.

47. Identify any and all documents, not specifically requested herein,but are known to exist by Plaintiff or the attorney of record, whetherin your possession or not.

48. Please identify each and every document which contains an

obligation or option to repurchase the Loan and explain fully theterms, conditions, costs to be incurred or paid by each party uponrepurchase and whether and by whom, and from whom, the Loanwas ever repurchased.

49. Please provide, for each of the note and mortgage, whether andas of what date you secured the originals thereof and from whomproviding full contact information, full legal name, address, title,entity and phone number of each such party.

50. Please provide all parties who have provided servicing of theLoan and provide full contact information, full legal name, address,and phone number of each party and the dates each began

servicing the Loan.51. Please provide for the history of the Loan, the persons or entities

who at any time collected mortgage payments specifying theapplicable dates each such person or entity did so collect andspecifying the full legal name, address and phone number of eachsuch party.

52. Please provide, for the history of the Loan, on whose behalf mortgage payments were collected specifying the applicable dates

40



collection was made for each such person or entity and specifyingthe full legal name, address and phone number of each such party.

53. Please provide for the history of the Loan, a full description of the disposition of collected mortgage payments specifying anyperson or entity to which mortgage payments were delivered,

transferred, or paid, the applicable dates of each such person orentity received the payments and further specify the full legalname, address and phone number of each such party.

54. Please identify a representative of the Plaintiff with knowledgeof the facts necessary to respond to each of the interrogatoriescontained herein or if more than one, identify each suchrepresentative providing full contact information including name,address, title and telephone number for each, with a brief summaryof each representatives knowledge in this matter.

55. Please produce and explain fully how the APR and financecharge were calculated for the Loan (the “TIL calculations”), identify

and describe any software utilized in the TIL calculations and howsame was used as to the Loan, and identify any documentscontaining information necessary to complete the TIL calculationsand what information was contained therein.

56. Please produce and explain whether the TIL calculations,software utilized for the TIL calculations, and documents necessaryto complete the TIL calculations were used for every loan made toconsumers at the time the Loan was made. If not, please fullyexplain why not and describe any differences.

57. Please produce and explain whether the TIL calculations,software utilized for the TIL calculations, and documents necessary

to complete the TIL calculations used at the time of the Loan wasmade subsequently changed in any manner and fully explain how.

58. Please provide any and all draft appraisals, final appraisalsregarding the subject property.

59. Please provide appraisal company(ies) utilized name, contactinformation, any and all licenses and all contact information for allperson(s) which in any way formulated the appraisal the subjectLoan was based on or utilized.

60. Please provide lenders review appraisal, appraisal company(ies)utilized name, contact information, any and all licenses and allcontact information for Lender’s review appraiser.

61. Please provide, for each of the note and mortgage, from whatperson or entity (“assignor”) you took assignment of the Loanspecifying the contact name, full legal name, address and phonenumber of the assignor together with the date you took assignment,and state the same information for any person or entity to whichthe Loan was ever assigned.

62. Please provide strict proof that the borrower received 2 copiesof a correct Notice of Right to Cancel, 1 copy of TIL Disclosure

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Statement pursuant to Regulation Z 226.23(a)(3) and did theconsumer receive three (3) business days prior to consummation of the mortgage transaction all disclosures pursuant to section226.32 .

63. If applicable, please provide strict proof whether you, the

Plaintiff, have directly or indirectly received any money, funds,financial considerations, guarantees or any other financialassurances from the U.S. Federal government in any way associatedwith the federal program commonly called the Troubles AssetsRelief Program (TARP), and or through the Emergency EconomicStabilization Act of 2008 enacted on October 3, 2008, and if so, thedate and or dates you received said money, funds, financialconsiderations, guarantees or other financial assurances, the dateof your application, your receipt, the amount(s) involved, andwhether and if so when you paid back any or all said money funds,considerations, guarantees or other financial assurances.


I HEREBY CERTIFY that a true and correct copy of the foregoingRequest For Production was mailed via First Class United States mail,this ____ day of ____________, 20____ to the address below and theoriginal of which was filed with the Clerk of the above Court.

True copy sent to Plaintiff’s Attorney: __________________ __________________ __________________ __________________


X______________________ Printed name:

Defendant(s) Mailing Address: _______________________ _______________________

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CERTIFICATE OF FILING FOR ADMISSIONS - A notice to the Court that ARequest For Admissions have been served on the Plaintiff.

43





CASE NO: _______________ ________________________ ________________________

PLAINTIFF

Vs.

_________________________ et al.

44



DEFENDANT(S) _________________________________/

CERTIFICATE OF SERVING DEFENDANT’S FIRST REQUEST TO

PLAINTIFF FOR ADMISSIONS

I HEREBY CERTIFY that Defendant’s First Request to Plaintiff ForAdmissions have been propounded to Plaintiff and served with a copyof this certificate by regular U.S. Mail this ___ day of _____________,20____ to:

Attorney for Plaintiff: __________________ __________________ __________________

__________________

BY:____________________ Printed name:Defendant(s), pro se

REQUEST FOR ADMISSIONS -A request for admissions is a part of thediscovery (fact-finding) process that occurs before trial. It is a written set of questions or statements served by a party to a lawsuit on an opposing party

or witness which are required to be denied or admitted in writing and returnedto the requesting party with in a specified time, usually thirty days. Theanswering party must affirm by oath to the truth of the answers. Anythingadmitted in such a request will be deemed admitted for purposes of trialevidence. The local court rules often limit the number of questions or statements in such requests, so that they cannot be used as a means of oppression.

45






CASE NO: _______________ ________________________ ________________________

PLAINTIFF

Vs.

46



_________________________ et al.DEFENDANT(S) _________________________________/

DEFENDANT’S FIRST REQUEST FOR ADMISSIONS

Defendant hereby files this First Request for Admissions, pursuant toRule 1.370 of the Florida Rules of Civil Procedure upon the Plaintiff, andrequests that said Plaintiff admit or deny the following Requests withinthe time permitted by said Rule:

1. Do you admit or deny that the subject loan was based on theDefendant’s ability to repay subject loan.

2. Do you admit or deny relying on income and or assets to extendconsumer credit to the Defendant.

3. Do you admit or deny verifying said income using reasonablethird party documentation.

4. Do you admit or deny utilizing W-2 forms, tax returns, payrollreceipts, financial records or any other document providingreasonably reliable evidence.

5. Do you admit or deny the Lender established a presumption of compliance that the repayment using the fully indexed rate andfully amortizing payment and assesses the consumer’s abilityusing either the ratio of total debt obligation to income (DTI) orincome the consumer will have after paying debt obligations.

6. Do you admit or deny the subject loan was based on real

property equity.7. Do you admit or deny that the subject loan was 1.5 percentage

points higher than FreddieMac.8. Do you admit or deny the Defendant was fully advised of the

amount due monthly to the original lender.9. Do you admit or deny that the Defendant was fully advised of

total payments that would become due including taxes,insurance, and future assessments.

10. Do you admit or deny that there was more than one GoodFaith Estimate presented to the Defendant during the loanprocess.

11. Do you admit or deny that the Good Faith Estimate utilizedin the loan transaction differed from any and all previous GoodFaith Estimates.

12. Do you admit or deny that the final Good Faith Estimategiven to and reviewed by the Defendant accurately reflects theactual payments under the loan.

13. Do you admit or deny that the Defendant was provided twocopies of the Truth-In-Lending disclosure.

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X______________________ Printed name:

Defendant, pro se

Defendant(s) Mailing Address:

_______________________ _______________________ ________________________

SUBPOENAS FOR DEPOSITION - A subpoena is an order directed to an

individual commanding him to appear in court on a certain day to testify or produce documents in a pending lawsuit. The power to subpoena a person isgranted officers of the court, such as clerks of courts, attorneys and judges.A person may be subpoenaed to appear in court or any designated locationto provide testimony for trial or deposition or produce documents or other evidence.

A subpoena which requests items be brought with the person is called a"subpoena duces tecum". A subpoena is an order directed to an individual

49



commanding him to appear in court on a certain day to testify or producedocuments in a pending lawsuit. The power to subpoena a person is grantedofficers of the court, such as clerks of courts, attorneys and judges. A personmay be subpoenaed to appear in court or any designated location to providetestimony for trial or deposition or produce documents or other evidence.

If the person is required to travel more than a minimum distance, they maybe required to be compensated for reasonable travel expenses. Failure tocomply with a subpoena may subject a person to being held in contempt of court if it appears the absence was intentional or without cause.




CASE NO: _______________ ________________________ ________________________

PLAINTIFF

Vs. SUBPOENA FOR DEPOSITION

50



DUCES TECUM

_________________________ et al.DEFENDANT(S) _________________________________/

THE STATE OF FLORIDA:

TO: ________________ _____________________ _____________________OR THE PERSON WITH THE MOST KNOWLEDGE

YOU ARE COMMANDED to appear before a person authorized by law to take depositions at, ___________________________, on _________

at ________AM PM and continuing from day to day until completion for thetaking of your deposition in this action and to have with you at that time andplace the following, pursuant to Exhibit “A” attached hereto and made partthereof:

1. All documents of any kind, utilized by you in issuing consumercredit to the Defendant.

2. All documents you intend to utilize to support your allegationsin the instant case and/or utilize at any official proceeding.

If you fail to appear, you may be in contempt of court.

You are subpoenaed to appear by the following attorney/Defendant, and

unless excused from this subpoena by this attorney or the Court, you shall

respond to this subpoena as directed.

DATED ______________________

______________

______________ ______________ ______________ Your Telephone Number:

.

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EXHIBIT “A”

DEFINITIONSFor the purposes of responding to this notice of Subpoena for

Deposition Duces Tecum, the following definitions shall apply:1. “Plaintiff” means _________________ and his agents, attorneys,

accountants and representatives, any person acting or purporting to act

on his behalf

2. “Defendant” means _______(Your Name)___________. and any of its

officers, employees, agents, attorneys, accountants and representatives.

3. “_________________” or “you” means _______________, and any of

her agents,

(Name of person to be deposed) (Name of person to be deposed)attorneys, accountants and representatives, any person acting or

purporting to act on her behalf.

4. “Document” or “documents” as used herein shall mean the original and

any copy, regardless of its origin and location, of all writings of any kind

whatsoever including, but not limited to, all abstracts, accounting

journals, accounting ledgers, advertisements, affidavits, agendas,

agreements or proposed agreements, analyses, appointment books,

appraisals, articles of incorporation, attorney retainer agreement,

balance sheets, bank checks, bank deposits or withdrawal slips, bankcredit or debit memoranda, blue prints, books, books of account,

budgets, bulletins, bylaws, canceled checks, charts, checks, codes,

communications, communications with government bodies, computer

data or printouts, conferences, contracts, correspondence, data sheets,

desk calendars, details, diagrams, diaries, disks or data compilations

from which information can be obtained or translated, drafts, drawings,

electromagnetic tapes, E-Mails, faxes, files, films, financial calculations,

financial projections, financial statements, graphs, handwritten notes or

comments however produced or reproduced, indexes, insertions,

instructions, internal accounting records, interoffice communications,invoices, ledgers, letters, lists logbooks, manuals, memoranda,

microfilm, minutes of meetings, motion or video pictures, newspaper or

magazine articles, networks, nonconforming copies which contain

deletions, notations or records of meetings, notes, notices of wire

transfer of funds, any transfer of funds, outlines pamphlets, papers,

passbooks, periodicals, photocopies, photographs, pictures, plans

52



preliminary drafts, press releases, proposals, publications, receipts,

recommendations, records, records of conferences or conversation or

meetings, records of payment, reports, resolutions, results of

investigations, schedules, schematics, sepia shipping papers, slides,

specifications, speeches, statement of account, studies, summaries,

surveys, tape recordings, telegrams, telephone logs and records,

telephone and other conversations or communications, teletypes,

telexes, transcripts, transcripts of tape recordings, video tapes, voice

recordings, vouchers, work papers, worksheets, written notations, and all

other papers similar to the foregoing. Any document containing therein

or attached thereto any alterations, comments, notes or other material

not included in the copies or originals or referred to in the preceding

definition shall be deemed a separate document within said definition.

Any document shall include all exhibits, schedules or other writings

affected by or referenced in any such document or other writingsnecessary to complete the information contained therein or make it not

misleading.

5. “And” and “or” as used therein are terms of inclusion and not exclusion,

and shall be construed either disjunctively or conjunctively as necessary

to bring with the scope of request for production of documents or

information that might otherwise be construed to be outside its scope.

6. “Any” means one or more.

7. “Describe”, discuss”, “analyze”, “describing”, “discussion”, or “analyzing”mean any document that, in whole or in part, characterizes, delineates,

explicates, deliberates, evaluates, appraises, assesses, or provides a

general explanation of the specified subject.

8. “Person” means any natural person, corporation, partnership, company,

sole proprietorship, association, institute, joint venture, firm, government

body, or other legal entity, whether privately or publicly owned or

controlled, for profit or not-for-profit, or partially or fully government

owned or controlled.

9. “Relate to” and “relating to” means to make a statement about, refer to,

discuss, describe, reflect, contain, comprise, identify, or in any way

pertain to, in whole or in part, or otherwise to be used, considered, or

reviewed in any way in connection with the specified subject. Thus,

documents that “relate to” a subject also include those which were

specifically rejected and those which were not relied or acted upon.

53



10.The singular form of a noun or pronoun shall be considered to include

within its meaning the plural form of the noun or pronoun, and vice

versa, The masculine form of a noun or pronoun shall be considered to

include within its meaning the feminine form of the noun or pronoun, and

vice versa.

11.Regardless of the tense employed, all verbs shall be read as applying to

the past, present and future as is necessary to make any paragraph

more, rather than less, inclusive.

12.“Year” means calendar year.

13.If any other person or entity is in possession or in control of requested

documents, please provide contact information for said person or entity

and description of documents in their possession or control.

TABLE OF CONTENTS

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MOTION TO DISMISS

ANSWER TO SUMMONS & COMPLAINT

CERTIFICATE OF FILING FOR ADMISSIONS

REQUEST FOR ADMISSIONS

CERTIFICATE OF SERVING INTERROGATORIES

INTERROGATORIES

CERTIFICATE OF FILING FOR PRODUCTION

REQUEST FOR PRODUCTION

SUBPOENA FOR DEPOSITION W/ EXHIBIT “A”