IN THE DISTRICT COURT OF APPEAL STATE OF FLORIDA SECOND DISTRICT ELENA GONZALEZ, Appellant, v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee. / CASE NO.: 2D10-5561 L.T. No.: 09CA51063

INITIAL BRIEF OF APPELLANT

MICHAEL C. TICE, ESQUIRE ATTORNEY AT LAW Post Office Box 1650 Fort Myers, Florida 33901 Tel: (239) 334-0051 Fax: (239) 334-2892 Fla. Bar No.: 177846

TABLE OF CONTENTS

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case and of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Issue:

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certificate of Service Certificate of Compliance Appendix

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TABLE OF CITATIONS

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PRELIMINARY STATEMENT

The Appellant, Elena Gonzalez, will be referred to as Mrs. Gonzalez. The Appellee, Deutsche Bank National Trust Company, will be referred to as Deutsche Bank. All other persons and entities will be referred to by their proper names. References to the Record on Appeal will be App. at ___ (pagination in appendix.).1

STATEMENT OF THE CASE AND OF THE FACTS

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Even though this is a non-final appeal, the Clerk of Lee County Circuit Court has prepared an index to record on appeal. Mrs. Gonzalez has used that index as a source for establishing the filing dates of pleadings in this case. Since this record is not to be transmitted to this Court, the entire record for this appeal is contained in the Appendix to this Brief.

This is an appeal of an order denying Mrs. Gonzalez Motion for Relief from Final Judgment and Objection to Foreclosure Sale. See App. at ____. On January 16, 2009, Deutsche Bank filed its complaint to foreclose a mortgage and reestablish promissory note against Mrs. Gonzalez and other defendants. App. at ___. Deutsche Bank filed its lis pendens on the same date. App. at ___. On March 27, 2009, Deutsche Bank filed its notice of filing original note and mortgage. App. at ___. (Only the first page of the notice is attached to the Appendix; the original documents are not attached.) On or about August 4, 2009, Deutsche Bank filed its notice of filing a copy of assignment of mortgage. App. at ___. Again only the first page is attached. Mrs. Gonzalez filed her answer and affirmative defenses on October 14, 2009. App. at ___. The first affirmative defense of Mrs. Gonzalez was [t]he Complaint fails to join indispensible parties, specifically the loan originator and the loan servicer(s) and the Complaint fails to adequately show the chain of the title demonstrating that the Plaintiff is in fact the real party in interest with standing to bring this action. See App. at ____. On September 22, 2010, the Court denied Deutsche Banks motion to dismiss the first affirmative defense of Mrs. Gonzalez. App. at ____.
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On September 13, 2010, Deutsche Bank filed its motion for summary final judgment of foreclosure, including memorandum of law. App. at ___. On

September 24, 2010, Mrs. Gonzalez filed a verified response and objection to motion for summary final judgment of foreclosure. App. at ___. In her response, Mrs. Gonzalez alleged, inter alia: 4. When exhibits are inconsistent with the plaintiffs allegations of material fact as to whom the real party in interest is, such allegations cancel each other out. Fladell v. Palm 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., 441 So. 2d 1114 (Fla. 3 1983). 5. Florida Rule of Civil Procedure 1.130(b) provides in pertinent part: Any exhibit attached to a pleading shall be considered a part thereof for all purposes. Because the facts revealed by Plaintiffs exhibits are inconsistent with Plaintiffs allegations as to its ownership of the subject note and mortgage, those allegations are neutralized and Plaintiffs complaint is rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983). . . . 7. Florida Rule of Civil Procedure 1.2 10(a) provides in pertinent part: Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that
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persons own name without joining the party for whose benefit the action is brought. 8. The Plaintiff in this action meets none of those criteria. Because the exhibits attached to Plaintiffs complaint and filed in support of its motion for summary judgment are inconsistent with Plaintiffs allegations as to ownership of the subject promissory note and mortgage, Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action. 9. In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975). Furthermore, the general rule in actions at law is that the right of a plaintiff to recover must be measured when the suit was instituted. Voges v. Ward, 98 Fla. 394, 123 So. 785, 793 (1929). 10. The Defendant recognizes the precedent set in WMSpecialiy Mortgage, LLC v. Salmon, 874 So.2d 680 (Fla. 4th DCA 2004) regarding the assignment of a mortgage. However, as the Second District Court of Appeals noted, standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim as of the date of the commencement of the action. The plaintiffs failure to meet the standing requirements as of the commencement of this foreclosure action renders the complaint fatally defective and, therefore constitutes misrepresentation as to who the Plaintiff really is. The assignment cannot post date the filing of this action if assignment does not relate back to the commencement of the litigation. Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281, 1286 (Fla. 2nd DCA 2005). App. at _____.
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The lower court rendered its final judgment of mortgage foreclosure on September 30, 2010. App. at ____. On October 5, 2010, Mrs. Gonzalez filed her motion for relief from final judgment and objection to foreclosure sale. App. at ___. In her sworn motion for relief, Mrs. Gonzalez alleged, inter alia: 6. The Defendant in its First affirmative defense states: 1. The Complaint fails to join indispensable parties, specifically the loan originator and the loan servicer(s) and the Complaint fails to adequately show the chain of the title demonstrating that Plaintiff is in fact the real party in interest with standing to bring this action. . . . 7. The Defendant further argued the standing issue in its Verified Response and Objection to Plaintiffs Motion for Summary Judgment; to wit; that the allegations set forth in the Complaint, the exhibits attached to the Complaint, and affidavits filed with the court are inconsistent for the following reasons: a. The Complaint alleges that the Plaintiff is the owner and holder of the note and mortgage subject to the foreclosure action. However, the Plaintiffs complaint and Lis Pendens was filed on January 16, 2009 with the Lee County Florida Clerk of Courts office. Subsequently, under a Notice of Filing, the Plaintiff filed a copy of the Assignment of the Mortgage to the same entity with a date of August 4th, 2009. The assignment was recorded July 28th 2009, after the Foreclosure Complaint and Lis Pendens was filed indicating that the Plaintiff trust entity was the owner and holder of the note when in fact at that time it had no interest in the subject mortgage and note. And finally, based on the Plaintiffs assignment that they are relying on to show their ownership interest, it reflects
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a ASSIGNMENT EFFECTIVE DATE of December 27th, 2009 once again, 11 months and 20 days, almost ONE YEAR AFTER the Foreclosure complaint was filed. Thus, the Plaintiff committed fraud upon the Court when it filed its Foreclosure complaint on January 16, 2009. . . . 9. The Plaintiff in this action meets none of those criteria. Because the exhibits attached to Plaintiffs complaint and filed in support of its motion for summary judgment are inconsistent with Plaintiffs allegations as to ownership of the subject promissory note and mortgage, Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action. . . . . . . 12. In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975). Furthermore, the general rule in actions at law is that the right of a plaintiff to recover must be measured when the suit was instituted. Voges v. Ward, 98 Fla. 394, 123 So. 785, 793 (1929). 13. Based upon all of the above, this Court has the discretion to set aside the Judgment and to vacate the Sale. United Companies Lending Corp. v. Abercrombie, 713 So. 2d 1017, 1018 (Fla. 2d DCA 1998). App. at ___.

The lower court denied Mrs. Gonzalezs sworn motion for relief from final judgment and objection to foreclosure sale on November 10, 2010. App. at ___. Mrs. Gonzalez filed her notice of appeal on the same day.

ISSUE:

WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION IN DENYING THE SWORN MOTION FOR RELIEF FROM FINAL JUDGMENT AND OBJECTION TO FORECLOSURE SALE FILED BY MRS. GONZALEZ.

SUMMARY OF ARGUMENT

The trial judge abused his discretion in denying the sworn motion for relief from final judgment and objection to foreclosure sale because the Plaintiff had no ownership interest in the subject property at the time it filed its complaint for foreclosure of mortgage.

STANDARD OF REVIEW

The standard of review is whether the lower tribunal abused its discretion in ruling on the sworn motion for relief from final judgment and objection to foreclosure sale. Shields v. Flinn, 528 So.2d 967 (Fla.3d DCA 1988); Ashland Oil Inc. v. Pickard, 289 So.2d 781 (Fla.3d DCA 1974); Sterling Factors Corporation v. U.S. Bank national Association, 968 So.2d 658 (Fla.2d DCA 2007).

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ISSUE:

WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION IN DENYING THE SWORN MOTION FOR RELIEF FROM FINAL JUDGMENT AND OBJECTION TO FORECLOSURE SALE FILED BY MRS. GONZALEZ.

ARGUMENT

The right of the plaintiff to recover must be measured by the facts as they exist when the suit was instituted. Voges v. Ward, Fla. 123 So. 785 (1929). Lee v. Harbour Preservations, LLC, 795 So.2d 181 (Fla.3d DCA 2001); OConnell v. Citizens National Bank of Hollywood, 254 So.2d 236 (Fla.5th DCA 1971). In this case, the Plaintiff had no ownership interest in the property being foreclosed upon at the time it filed its complaint. The assignment relied on by the Plaintiff to establish its ownership interest was effective nearly one year after the foreclosure was filed in this case. This is no sufficient. See Greenwald v. Triple Properties, Inc., 424 So.2d 185 (Fla.th DCA
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1983). The allegations to the complaint are also inconsistent with terms of the assignment. See City of Hollywood v. Florida Power and Light Company, 624 SO.2d 285 (Fla.4th DCA 1993). The Plaintiff had no authority to maintain the foreclosure action. Costa Bella Development Corp. v. Costa Development Corp., 441 So.2d 1114 (Fla.3d DCA 1983). At the time the Plaintiff filed its complaint it was not the owner and holder of the note and mortgage in question. See Your The

Construction Center, Inc. v. Gross, 316 So.2d 596 (Fla.4th DCA 1975).

Plaintiff was not a real party in interest in this case. See Tampa Properties, Inc. v. Great American Mortgage Investors, 333 So.2d 480 (Fla.2d DCA 1976); Corcoran v. Brody, 347 So.2d 689 (fla.4th DCA 1977). The trial judge should have granted the sworn motion for relief filed by Mrs. Gonzalez.

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CONCLUSION

Mrs. Gonzalez requests the Court to reverse the order of the trial court denying the sworn motion for relief from judgment and remand this case with instructions that a trial on the merits be held.

Respectfully submitted.

MICHAEL C. TICE, ESQUIRE ATTORNEY AT LAW Florida Bar No.: 177846 P.O. Box 1650 Fort Myers, Florida 33902 (239) 334-0051

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the initial brief has been furnished by regular U.S. mail to Jennifer J. Ross, Esq., Ben-Ezra & Katz, P.A., 2901 Stirling Road, Suite 300, Fort Lauderdale, Florida 33312, (File No. 53331/LEN), this ____ day of March 2011.

MICHAEL C. TICE, ESQUIRE ATTORNEY AT LAW Florida Bar No.: 177846 P.O. Box 1650 Fort Myers, Florida 33902 (239) 334-0051

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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the font requirements (Times New Roman, 14 pt.) of Rule 9.210, Florida Rules of Appellate Procedure.

MICHAEL C. TICE, ESQUIRE ATTORNEY AT LAW Florida Bar No.: 177846 P.O. Box 1650 Fort Myers, Florida 33902 (239) 334-0051

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INDEX TO APPENDIX

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