IN THE CIRCUIT COURT FOR PALM BEACH COUNTY, FLORIDA CIVIL DIVISION CASE NO: 502011CA015458XXXXMB EQUUS PARTNERS,

Plaintiff, -vMORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and COUNTRYWIDE BANK, FSB now known as BANK OF AMERICA NATIONAL ASSOCIATION (BOA), et al., Defendants. FIRST AMENDED COMPLAINT Plaintiff EQUUS PARTNERS files its First Amended Complaint against the defendants MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (Defendant MERS) and BANK OF AMERICA NATIONAL ASSOCIATION (Defendant BOA) and alleges: 1. This is an action seeking a declaratory judgment and quiet title to real property

located in in Palm Beach County, Florida. 2. 3. This Court has jurisdiction pursuant to F.S. 65.011 and 86.011. The Plaintiff is a subsequent purchaser for a valuable consideration of real

property located in Palm Beach County, Florida with the following legal description: LOT 94, OF EQUUS AGR-PUD PHASE TWO, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 102, PAGE 157, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA.

4.

The Defendant MERS is a Delaware corporation with its principal place of

business in Virginia. 5. The Defendant BOA is a National Association with its principal place of business

in North Carolina. The Defendant BOA is purposefully concealing the owner of the economic interest in the real property and has identified itself as the is the servicing agent of the real party in interest. 6. On or around May 25, 2007 Cheryl Charles-Duval issued a Note payable to

Countrywide Bank, FSB as Lender and granted a Mortgage securing payment of the Note in favor of the Defendant MERS. 7. MERS is identified as a nominee on the mortgage instrument and is also

identified as the mortgagee for the Lender on the same mortgage instrument. The fact that MERS cannot be both nominee and mortgagee with respect to the same right is axiomatic.1 8. Upon information and belief, the Note and Mortgage were assigned thereby

extinguishing the rights of Countrywide Bank, FSB to the payments thereunder. 9. No assignment was recorded in the official records of Palm Beach County,

Florida and the mortgage instrument recorded in the name of the Defendant MERS as nominee does not provide adequate notice of the existence of a lien. 10. On September 1, 2011 the Plaintiffs General Partner remitted a written request

for an estoppel letter to the Defendant MERS and to Countrywide Bank, FSB. The written request also demanded a date, time and location wherein the original note could be inspected and photocopied. The request was ignored. 11. On October 3, 2011 the Plaintiff recorded a Warranty Deed in Book 24775 at

Page 0431 of the Official Records of Palm Beach County, Florida and on October 17, 2011 the
1

See RESTATEMENT (THIRD) OF AGENCY 1.01 - .02 (2006).

Plaintiff recorded a Notice of Lis Pendens in Book 24799 at Page 1162 of the Official Records of Palm Beach County, Florida. 12. In Florida, the failure to record an assignment of mortgage, as with failure to

record a deed or mortgage, renders them invalid as against subsequent purchasers or mortgagees for value and without notice.2 13. Florida Statutes 695.01 (1) provides that no conveyance, transfer, or mortgage of

real property, or of any interest therein, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless same be recorded according to law (2011).3 14. Florida Statutes 701.02 (1) provides that an assignment of mortgage upon real

property or of any interest therein, is not good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless same is recorded according to law (2011).4 COUNT I DECLARATORY JUDGMENT (F.S. 48.23 (2011)) 15. through 14. 16. 17. This is an action for declaratory judgment and supplemental relief. Florida Statues 48.23(1)(d) provides that the recording of a lis pendens The Plaintiff repeats and re-alleges the allegations contained in paragraphs 1

constitutes a bar to the enforcement against the property described in the notice of all interests and liens unrecorded at the time of recording of the notice unless the holder of any such

2 3

See Manufacturers Trust Co. v. Peoples Holding Co., 110 Fla. 451 (1933). See McCahill v. Travis Co., 45 So.2d 191 (Fla. 1950). 4 This section also applies to assignments of mortgages resulting from transfers of all or any part of the debt, note or notes secured by mortgage. F.S. 701.02(2) (2011).

unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice.5 18. The Plaintiff contends that the mortgage instrument recorded in the name of a

nominee does not provide sufficient notice of the existence of a lien; does not provide sufficient notice of the actual economic ownership of interests in the real property; and that an unrecorded assignment of a mortgage is such an interest contemplated under Florida Statutes 48.23(1)(d) such that the recording of a notice of lis pendens constitutes a bar to the enforcement of such interest unless the holder intervenes within 30 days. 19. The Defendant BOA contends that that the mortgage instrument recorded in the

name of a nominee does provide sufficient notice of the existence of a lien; does provide sufficient notice of the actual economic ownership of interests in the real property; and that an unrecorded assignment of a mortgage is not such an interest contemplated under Florida Statutes 48.23(1)(d) such that the recording of a notice of lis pendens does not constitute a bar to the enforcement of such interest unless the holder intervenes within 30 days. 20. Plaintiff is in doubt about plaintiffs rights under the statute.

WHEREFORE, plaintiff demands a judgment declaring the rights of the parties and for supplemental relief. COUNT II DECLARATORY JUDGMENT (F.S. 695.01(1) (2011)) 21. through 14. 22. This is an action for declaratory judgment and supplemental relief. The Plaintiff repeats and re-alleges the allegations contained in paragraphs 1

F.S. 48.23(1)(d) (2011); Khilena Adhin, Tenita Isaacs, et al., v. First Horizon Home Loans, et al, (Fla. 5th DCA 2010).

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Florida Statutes 695.01(1) provides that no conveyance, transfer, or mortgage of

real property, or any interest therein shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the same be recorded according to law. 24. The Plaintiff contends that an unrecorded assignment of mortgage is an economic

interest in real property contemplated by Florida Statutes 695.01(1) and that the unrecorded interest is not good and effectual in law or equity against the interest of the Plaintiff. 25. The Defendant BOA contends that that an unrecorded assignment of mortgage is

not an economic interest in real property contemplated by Florida Statutes 695.01(1) and that the interest is good and effectual in law or equity against the interests of the Plaintiff. 26. Plaintiff is in doubt about plaintiffs rights under the statute.

WHEREFORE, plaintiff demands a judgment declaring the rights of the parties and for supplemental relief. COUNT III DECLARATORY JUDGMENT (F.S. 701.02(1) 2011) 27. through 14. 28. 29. This is an action for declaratory judgment and supplemental relief. Florida Statutes 701.02(1) provides that an assignment of mortgage upon real The Plaintiff repeats and re-alleges the allegations contained in paragraphs 1

property or of any interest therein, is not good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the assignment is recorded according to law. 30. The Plaintiff contends that Florida Statutes 701.02(1) applies to subsequent

purchasers of the real property by virtue of the Supreme Court of Floridas holding in 5

Manufacturers Trust Co. v. Peoples Holding Co., 110 Fla. 451 (1933); the plain meaning of the statute and Senate Bill 1672 seeking to amend F.S. 701.02(1) (6) and F.S. 702.01. 31. The Defendant BOA contends that Florida Statutes 701.02(1) only applies to

estop an earlier assignee/purchaser of the same mortgage and not subsequent creditors or purchasers of the real property by virtue of the Second District Court of Appeals holding in JP Morgan Chase v. New Millennial, LC, 6 So.3d 681 (2009). 32. Plaintiff is in doubt about plaintiffs rights under the statute.

WHEREFORE, plaintiff demands a judgment declaring the rights of the parties and for supplemental relief. COUNT IV QUIET TITLE 33. through 14. 34. Florida. 35. 36. The Defendant BOA has no right to payment under the note and mortgage. The Defendant BOA cannot enforce the mortgage against the rights of the This is an action to quiet title to real property located in Palm Beach County, The Plaintiff repeats and re-alleges the allegations contained in paragraphs 1

Plaintiff in the real property. 37. The Defendant BOA cannot direct the Defendant MERS to enforce the mortgage

against the rights of the Plaintiff in the real property. 38. The mortgage, not being enforceable by the Defendant BOA or the Defendant

MERS and no assignment of mortgage appearing in the public records, the mortgage is acting as a cloud on title.

WHEREFORE, plaintiff demands judgment against the defendants quieting title to the property in the plaintiff. I certify that a copy of the foregoing was forwarded by first class mail to Ryan T. Cox, Post Office Box 11438 Fort Lauderdale, FL 33339-1438 this day of January, 2012.

Dated:___________

THE DELTA LAW FIRM HOWARD FEINMEL, ESQUIRE FBN: 169293 Attorney for the Plaintiff 5030 Champion Blvd. PMB #G6-275 Boca Raton, FL 33496 Telephone 561-910-5985