IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,

IN AND FOR PALM BEACH COUNTY, FLORIDA

U.S. Bank National Association, as,

Trustee for The Structured Asset
Securities Corporation Mortgage
Pass-Through Certificate 2006-EQ1,
Plaintiff,

Vs. Case No: 50 2007 CA00 5340 XXXX MB

Division: Foreclosure AW

Mickey Metzgar, Sharon Metzgar

A/K/A Sharon J. Metzgar: et.al.,
Defendant.
_____________________________________/

Defendant’s Cross Claims of Fraud against Plaintiff

The defendant Sharon Metzgar, pursuant to Rules of Civil Procedure 1.170

(g), herein files cross claims of fraud against the plaintiffs. Since filing the

original complaint, the plaintiffs have committed at least three counts of fraud with

additional document filings; (1) a backdated mortgage assignment prepared in-

house by the plaintiff attorney David J Stern over 2 years after filing the
complaint, (2) a recent contradictory answer to interrogatories concerning

finding the lost note, and most recently (3) a return of service affidavit.

I: Statement of Facts

Case History

1. On April 09, 2007 the plaintiff filed a foreclosure complaint seeking to

enforce a lost note. Paragraph (3) alleges; (See “Plaintiff’s Complaint Exhibit ‘A’).

On April 24, 2006 MICKEY METZGAR AND SHARON

METZGAR A/K/A SHARON J METZGAR, HIS WIFE, executed and
delivered a promissory Note and a Mortgage securing payment of the
Note to the Payee named thereon.

2. Attached to the complaint is a copy of the original mortgage the plaintiff

seeks to foreclose. The lender, (Payee), on the mortgage is Equifirst Corporation

not the plaintiff. MERS is listed as the mortgagee acting under Delaware state law.

3. The foreclosure complaint attempts to clean up the ownership issue by stating

in paragraph (4) that;

“said mortgage was subsequently assigned” - (past tense) - to the

plaintiff “ . . . by virtue of an assignment to be recorded”. – (Tangible).
(See “Plaintiff’s Complaint paragraph (4) Exhibit ‘A’).

4. This alleged undated tangible assignment, that is claimed to have

been executed, was not attached. There is nothing in the original complaint

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and attachments to show or prove that the plaintiff has standing to foreclose

- nothing, nada, zilch, zero.

5. The complaint does not allege transfer of the note.

6. On 11/20/2008 The Plaintiff filed a Motion for Summary Judgment

with a supporting affidavit. The bank’s Vice President’s supporting affidavit

execution date is October 19, 2007. This affidavit admits and reveals that the

Plaintiff has never recovered the original note. (See Exhibit “B” paragraph 4).

7. The plaintiffs move for summary judgment 1 year and 7 months after

filing the complaint in spite of the fact there is still nothing in the record to

indicate that the plaintiff has standing to foreclose. No note, no

assignment, UNBELIEVABLLY NOTHING AT ALL. The mortgage attached

to the complaint names EquiFirst as the lender - not the plaintiff.

8. The summary judgment motion is rightly denied

9. On 09/28/2009 the plaintiff attempts a second summary judgment by

executing an Assignment of Mortgage dated August 09, 2009 - almost two and

one half years after filing the foreclosure complaint. The plaintiff attempts to

“backdate” the assignment two and one half years prior. (See Exhibit “C”).

10. This back-dated assignment was prepared in-house by the

plaintiff’s attorney, David J Stern in plantation FL., over 2 years AFTER filing

the foreclosure complaint. It was then notarized in South Carolina by Lisa Ryhne,

verifying Yolanda Williams’ signature. (See “Exhibit “C” - heading).

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 11. David Stern is now under investigation by the Attorney General.

Ex-paralegals, plural, for Mr. Stern have given sworn depositions to the

AG testifying of among other things fraudulently backdating assignments.

12. The so-called MERS backdated mortgage assignment is to U.S. Bank

National Association, as, Trustee for The Structured Asset Securities Corporation

Mortgage Pass-Through Certificate. (See Attached Exhibit “C”).

13. The effective date of this alleged David J. Stern prepared MERS

mortgage assignment executed on August 09, 2009 is backdated to March 29,

2007. The note is still alleged to be lost at the execution, filing, and effective date

of this so-called assignment. The effective date predates the notary’s commission.

14. This second attempt at summary judgment is also rightly denied.

15. On July 6, 2010 the plaintiffs attempts a third summary judgment hearing.

At this hearing the Plaintiff’s attorney without warning or notice suddenly

produces, “out of his bag”, what he claims to be the original promissory note

after having been lost for over three (3) years. This lost note suddenly produced

also names EquiFirst corp. as the payee, not the plaintiff. (See Note Exhibit “D”).

16. This third attempt at summary judgment is also rightly denied.

17. On October 22, 2010 the case is finally set for trial by Judge Garrison. The

trial date is set for November 15, 2010 at 10:30 a.m.

18. On October 28, 2010 Michael K. Winston, Bar # 051403, files a notice of

appearance as co-counsel. He alleges to have been retained by the plaintiff.

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 19. On November 03, 2010, after successfully knocking the case from the trial

docket; the bank Default Litigation Specialist filled Answer to Interrogatories

concerning finding the long lost note. The answer alleges that the original note was

given to the plaintiff’s attorney specifically on April 20, 2007. (See “Exhibit “E”).

20. On November 24, 2010, this new lawyer filed a return of service affidavit

as to Mickey Metzgar. (See Attached Exhibit “F”).

II: Defendant’s Proofs of Fraud

Count 1

Backdated Mortgage Assignment prepared in-house

by the plaintiff attorney David J Stern

21. On 09/28/2009, while the note was still lost, the plaintiff attempts a second

summary judgment by executing an Assignment of Mortgage on August 09, 2009,

almost 2 and 1/2 years after filing the foreclosure complaint. The plaintiff attempts

to “backdate” the assignment two and one half years prior. (See Exhibit “C”).

22. This back-dated assignment was prepared in-house by the

plaintiff’s attorney, David J Stern in plantation FL., over 2 years AFTER filing

the foreclosure complaint. It was then notarized in South Carolina by known robo-

signers Yolanda Williams and Lisa Ryhne. (See “Exhibit “C” heading ).

23. The assignment on its face raises a serious issue of fact, whether the

Plaintiff had standing to file a foreclosure complaint 2 years and 4 months before

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executing an assignment. See WM SPECIALTY MORTGAGE v. SALOMON,

874 So.2d 680 (Fla.App. 4 Dist. 2004).

An evidentiary hearing would have been the appropriate

forum to resolve the conflict which was apparent on the face of
the assignment, i.e., whether WM Specialty acquired interest in
the mortgage prior to the filing of the complaint.
24. In the WM SPECIALTY case, the bank appealed a dismissal of a

foreclosure complaint based on a backdated mortgage assignment executed two

months after filing the complaint. This case has a backdated assignment executed a

whopping 2 full years and 4 months after filing the complaint

25. According to the WM SPECIALTY case the defendant is entitled to an

evidentiary hearing to authenticate the backdated mortgage assignment prepared in-

house by the plaintiff’s attorney years after filing the complaint.

Count 2
Answer to Interrogatories – Lost Note
\

26. On 11/20/2008 The Plaintiff filed a Motion for Summary Judgment

with a supporting affidavit. The plaintiff’s Affidavit in Support of Summary

Judgment has an execution date of October 19, 2007. The plaintiffs own

affidavit filed by a bank Vice President admits and reveals that the

Plaintiff has never recovered the original note. (Exhibit “B” paragraph. 4).

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 27. On July 6, 2010 the plaintiffs attempts a third summary judgment hearing.

At this hearing the Plaintiff’s attorney without warning or notice suddenly

produces, “out of his bag”, what he claims to be the original promissory note

after having been lost for over three (3) years. This unendorsed long, long lost

promissory note suddenly produced also names EquiFirst corporation as the

payee, not the plaintiff. (See Note Exhibit “D”).

28. On November 03, 2010, alleged newly retained Mr. Winston, Bar #

051403 files Answer to Interrogatories concerning finding the long lost note. The

answer alleges that the original note was given to the plaintiff’s attorney specifically

on April 20, 2007 This would have put the original note in the attorney’s hands 6

months prior to filing the affidavit claiming it to be lost. (See “Exhibit “E”).

29. This Answer to Interrogatories concerning finding the long lost has as a

signature of a one Joseph J. Cariola. It is notarized by a Fredrick County, Maryland

notary. Joseph J. Cariola’s title is alleged to be Default Litigation Specialist for

the plaintiff, US Bank National Association, Cincinnati, Ohio. Joseph J

Cariola’s address is Fredrick, Maryland. He is also a notary. His commission

expires on 04/13/2011.

30. The defendant wishes to depose this affiant. Among other things, find

out when US Bank National hired him. Who held his position prior? Where is

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his office located? And most importantly, why does this Bank’s Default

Litigation Specialist, Joseph J. Cariola’s statement concerning

the note contradict an earlier affidavit filed by the same bank’s

Vice President Loan Documentation, Kevin Marks, claiming the

original note was never recovered?

29 The defendant claims that these answers to the interrogatories filed by

the banks “Default Loan Specialist” recently is fraudulent and that the affidavit

in support of summary judgment executed earlier by the banks “Vice President

Loan Documentation” is correct. These answers are just another fraudulent

attempt to “clean up” this deceptive foreclosure case by a new lawyer.

Count 3
Return of Service Affidavit

30. On October 22, 2010 this case is finally set for trial by Judge Garrison. The

trial date is set for November 15, 2010 at 10:30 a.m.

31. On October 28, 2010 Michael K. Winston, bar# 051403, files a notice of

appearance as co-counsel. He succeeds in knocking the case from the trial docket. He

alleges to have been retained by the plaintiff and not David J. Stern.

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 32. On December 2, 2010, Michael K. Winston, Bar# 051403, co-counsel with

David J. Stern, filed a return of service affidavit as to Mickey Metzgar. (See

Attached Exhibit “F”).

33. The signature on this return of service affidavit is purported to be that of

an impartial service processor - Susan R. Upthegrove

34. However, the signature is easily recognizable as that of plaintiff attorney,

David Stern’s lead affidavit signing paralegal – (up to 1000 a day), Cheryl Samons.

Here is an example of Cheryl’s signature. (See signature comparison ‘G’ ).

35. A certified copy of the service processor, Susan R. Upthegrove’s, court

recorded bond for process serving contains her signature. This certified copy of

Susan R. Upthegroove’s signature doesn’t even come close to the signature in their

exhibit. (See Bond – Certified Copy Exhibit ‘H’).

36. More examples of two of Susan R. Upthegrove’s signatures made just

two months before the time of the alleged return of service signing are attached.

These two signatures of Susan R. Upthegroove is also very much different than

the one alleged on the return of service affidavit. (See Exhibit “I”).

37. The defendant challenges whether the plaintiff retained Mr. Winston’s

services or did David J. Stern hire him simply to knock the case from the trial

docket in order to file more fraudulent documents, i.e. the

interrogatories concerning the lost note and the return of service

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affidavit. The defendant asks for proof that Mr. Winston has standing to appear on

behalf of the plaintiff.

38 As it stands, the case file record contains genuine issues of fact. The

backdated assignment needs to be authenticated through an evidentiary

hearing. The answers to the interrogatories contradict an earlier filed

affidavit in support of summary judgment - bank officials have filed

contradicting affidavits. And the return of service affidavit appears to be a

forgery.

III: CONCLUSION

38. This David J. Stern case is a classic example of how the foreclosure

mills have resorted to fraudulent lost note claims, filing false affidavits, creating in

house back dated mortgage assignments to give the illusion of legal transfers, and

wholesale fraud and forgery in order to “PUSH” foreclosure summary judgments

through the court system.

a) The plaintiff is a trustee for investors that own The

Structured Asset Securities Corporation Mortgage Pass-Through

Certificate. This certificate is an investment instrument created by

pooling thousands of notes and mortgages together.

b) In order to create this certificate, the note is sold from the

originator to a sponsor; it is then sold to a depositor who creates the

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 note-pooled certificate. The certificate is then sold to a trustee that

governs the pool. The note passes through 3 or 4 owners before the

trustee of the pool, in this case, US Bank National gains possession.

c) In a rush to create these note-securitized MBA’s, “Mortgage

Backed Assets”, laws requiring signatures, notaries, recording and

time in order to prove legal transfers are ignored. In order to

GIVE THE ILLUSION OF LEGALLITY, foreclosure mills such as

David J. Stern have to resort to fraudulent lost note claims, fraudulent

affidavits, in-house backdated assignments, and forgery.

IV: RELIEF

39. The defendant seeks the following relief and any other such relief that

the Court would deem necessary, just, and/or proper.

a) A trial by jury on all (3) fraud claims contained in this

cross complaint if applicable. Otherwise a trial by Judge.

b) A finding of fraud with the answers to the interrogatories

concerning finding the lost note based on the previous filed Affidavit in

Support of Summary Judgment.

c) An evidentiary hearing regarding the authenticity of the

backdated mortgage assignment created in-house.

d) Proof Michael K. Winston, bar # 051403 has standing to

appear as co-counsel.

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e) A finding of forgery of the return of service affidavit.

f) Dismissal of the foreclosure complaint with prejudice.

g) A finding that. U.S. Bank National Association has not shown

they own or hold the note and mortgage.

h) The plaintiff, U.S. Bank National Association enjoined from

reselling or reassigning the note or mortgage.

i) Any other such relief including a satisfaction of mortgage lien,

monetary penalties and/or fines that the court deems to be necessary, just,

and/or proper.

V: LIST OF EXHIBITS

40. The list of exhibits is derived from the documents filed by the plaintiff and

their attorneys in this case.

a) Exhibit “A” - The plaintiff’s original complaint with the mortgage sought to

foreclose attached filed April 09, 2007.

b) Exhibit “B” - The plaintiff’s Motion & Affidavit in Support of Summary

Judgment with notary execution date of October 19, 2007 but filed Nov. 20, 2008.

c) Exhibit “C” – The plaintiff’s backdated Assignment of Mortgage prepared

by plaintiff’s attorney David J. Stern in-house and executed on August 09, 2009.

d) Exhibit “D” - Promissory Note produced by plaintiff’s attorney and copied

by Judge into file on July 06, 2010.

e) Exhibit “E” – Plaintiff’s Answer to Interrogatories concerning the lost note

filed by Michael. Winston on November 03, 2010.

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 f) Exhibit “F” – Plaintiff’s Return of Service filed by Michael Winston on

November 24, 2010.

e) Exhibit “G” – Copy of David J. Stern lead affidavit signing paralegal, (up to

1000 a day), Chreyl Samons’ signature.

h) Exhibit “H” A certified copy of the service processor, Susan R. Upthegrove’s,

court recorded bond for process serving containing her signature dated January 09, 1996.

i) Exhibit “I” A copy of the service processor, Susan R. Upthegrove’s, court

recorded mortgage deed, containing two of her signature dated February 09, 2007, just

two months prior to allegedly signing the return of service affidavit.

Certificate of Service

I Declare that the contents in these cross claims are true and correct to the

best of my knowledge. I further declare that a true and correct copy of these Cross

Claims have been sent via US mail to the following person(s).

1. Kim F. Stevens, attorney of record, Bar# 0543136, c/o Law offices of

David J. Stern, 900 South Pine Island Road Suite 400, Plantation, FL 33324-3920

(954) 233-8000.

2. Michael K. Winston, Esquire, Bar# 051403, 525 Okeechobee Bld,

#1200, West Palm Beach, FL 33401

Done this ____ day of December, 2010.

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_______________________________
Sharon Metzgar
301 Henthorne Drive
Lake Worth, FL 33461
Ph: (561) 281-9543

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