Appeal Brief FL 120326

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDASECOND DISTRICT

1005 EAST MEMORIAL BOULEVARD, LAKELAND, FL 33801-2019 POST OFFICE BOX 327, LAKELAND, FL 33802-0327

Monday, 26 March 2012

Jeremiah T. Ammann and CASE NO. 2D11-5276Laura U. Ammann, L.T. No.: GC08-937

Appellants

v.

Chase Home Finance, L.L.C., et al.

Appellees._______________________________

APPEALFROM THE CIRCUIT COURT OF

HIGHLANDS COUNTY, FLORIDACASE NO. GC08-937

TRIAL JUDGE: HONORABLE PETER F. ESTRADA

__________________________________________________________________

INITIAL BRIEF OF APPELLANTS__________________________________________________________________

Jeremiah T. Ammann, andLaura U. AmmannAppellants, Self-Represented1820 Iris AvenueSebring, FL 33875-6090(863) 385-3138

TABLE OF CONTENTSPage

TABLE OF CONTENTS ................................................................................. i

TABLE OF AUTHORITIES ............................................................................ ii

PRELIMINARY STATEMENT ....................................................................... v

I. STATEMENT OF THE CASE AND FACTS ............................................... 1

A. NATURE OF THE CASE BELOW ................................................ 1

1. The Parties, Four Complaints, and Three Answers ..................... 3

2. The Guarantee that Limits Indorsement ...................................... 19

3. The Counter-Claim and Cross-Claims ........................................ 20

(a) Count I: Violations of Consumer Protection Laws .............. 25

(b) Count II: Quiet Title (Slander of Title) ................................ 26

4. CHF's Insufficient Notices and Assignment ................................ 26

5. The Initial Communications and the FDCPA .............................. 29

6. Using "In Rem" to Avoid FDCPA Liability ................................. 30

7. Elements of an FDCPA Claim Were Alleged .............................. 33

8. Elements of a "Quiet Title" Action Were Alleged ....................... 36

II. SUMMARY OF ARGUMENT ................................................................... 38

III. ARGUMENT ............................................................................................. 39

IV. CONCLUSION .......................................................................................... 45

CERTIFICATE OF SERVICE ......................................................................... 47

CERTIFICATE OF COMPLIANCE ................................................................ 47

i

TABLE OF AUTHORITIES

Cases Page

Boca Burger v. Forum, 912 So.2d 561, 564 (2005) ......................................... 38Cochrane v. Florida v. Florida East Coast Ry Co.,

145 So. 217, 218 (Fla. 1932) .................................................................. 24Deseret Ranches of Florida, Inc. v. Bowman, 3402 So. 2d 1232, 1233 ........... 43Edgar Johnson v. BAC Home Loans Servicing, et al.,

No. 5:10-CV-303-F, US Dist. Ct., E.D. North Carolina,Western Division, September 29, 2011, ORDER,paragraph under "1. Consumer Debt." ................................................... 25

Edwards v. Landsman, 51 So.3d 1208, 1214-1215 (4th DCA 2011) ...............17,42Feltus v. US Bank, N.A., 2D10-3727,

Opinion Filed 19 Oct. 2011, p. 3, last ¶ ................................................. 6Garzon v. State, 980 So.2d 1038, 1045 (Fla. 2008) ......................................... 24Gates v. Utsey, 177 So. 2d 486, 1st DCA (July 27, 1965), at 488. .................. 19Heintz v Jenkins, 514 US 291; 115 S Ct 1489; 131 L Ed 2d 395 (1995) .........34,35IndyMac v. Garcia, 2010 NY Slip Op 51127(U),

7282-2008, 22 June 2010 .......................................................................14, 20Jeff-Ray v. Jacobsen, 566 So.2d 885 (Fla. 4th DCA 1990) .............................. 16Jerman v. Carlisle, 130 S.Ct. 1605, 1609 and 1618 (April 2010) ................... 32Johnson v. BAC Home Loans Servicing, et al.,

No. 5:10-CV-303-F., U. S. Dist. Ct, E.D. North Carolina,Western Division. September 29, 2011 .................................................. 33

Marianna v Maund, 56 So. 760 (Fla. 1911) ..................................................... 16McLean v. JPMCB as Trustee, 4 DCA, No. 4D10-3429,

14 December 2011 ................................................................................. 23Portley v. Litton Loan Servicing, U.S. Dist. Ct.,

Eastern District of Pennsylvania, NO. 08-2799,Memorandum and Order, Tucker J., April 2010 .................................... 44

Progressive v. McGrath, 913 So.2d 1281 (Fla. 2nd DCA 2005) ...................... 16Ridgewood Utilities Corp. v. R. L. King,

426 So.2d 49, 50 (Fla. 2d DCA 1982) ................................................... 38Safeco v. Ware, 401 So.2d 1129, 1130 (4 DCA 1981) ...................................... 21Taylor v. Bayview, 2D10-1493,

Opinion filed 9 November 2011, page 5, 1st ¶ ...................................... 14Troupe v. Redner, 562 So.2d 394, 395 (Fla. 2d Dist. App. 1995) ..................... 35

ii

Vance v. Fields, Fla. 172 So.2d 613 (1965) headnote 2. .................................. 14Wells Fargo v. Marchione, 20 Apr 2009, 2008-02775,

NY Supreme Ct., App. Div, 2nd Jud. Dept. ........................................... 15Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373, 376 (4th Cir. 2006) ....... 25

Statutes and Rules

FDCPA, 15 U.S.C. § 1692a(3) ......................................................................... 34FDCPA, 15 U.S.C. § 1692a(5) ........................................................................ 34FDCPA, 15 U.S.C. § 1692a(6) ......................................................................... 34FDCPA, 15 U.S.C. § 1692g(3) ......................................................................... 36Form 1.944, Florida Rules of Civil Procedure .................................................24,45Form 1.965, Florida Rules of Civil Procedure ................................................. 10Rule 1.110, Florida Rules of Civil Procedure .................................................. 5Rule 1.130(a), Florida Rules of Civil Procedure .............................................. 6Rule 1.140(b), Florida Rules of Civil Procedure ............................................. 13Rule 1.170(h), Florida Rules of Civil Procedure ............................................. 42Rule 1.180(a), Florida Rules of Civil Procedure .............................................. 42Florida Statute § 673.5011(2)(c) ...................................................................... 45Florida Statute § 702.01 Equity. (2011) ........................................................... 31

Other Authorities

Black's Law Dictionary, by Henry Campbell Black, M.AFifth Edition, West Publishing Co., © 1979

Dun, p. 451 .......................................................................................... 26Lis pendes, p. 840 ................................................................................ 37Malice in law, p. 863 ........................................................................... 6Non-negotiable, p. 952 ........................................................................

Florida Causes of Action, by Marc Wites & Arthur L. Berger,James Publishing, Inc., Rev. 1, 8/2007

Slander of Title, § 13:40, at p. 13-12 ................................................ 36Foreclosure Bench Book, by the Honorable Jennifer D. Bailey and

Doris Bermudez-Goodrich, © 2010Fair Debt Collection Practices Act (FDCPA), p. 16, ¶ 2 .................. 33Florida's Expedited Foreclosure Statute, at page 50, ¶ 3(c) ............. 31Service of Process, p. 19, ¶ 1 ............................................................ 31

Redbook, The: A Manual on Legal Style (St Paul, MN:2002),Rule 1.80 at 43 ............................................................................................ 24

iii

Trawick's Florida Practice and Procedure, by Henry P. Trawick, Jr.,published by West, © 2009.

Definitions, § 1:5, p. 6, ¶ 1 ................................................................... 26,32Filing and service, § 7:7, p. 133 ........................................................... 7Form, § 12.2 Form, p. 225 ................................................................... 5Hearings, § 15:5, p. 262 ....................................................................... 8Motion to strike defenses, § 10:7 p. 202 .............................................. 9Notices and Other Papers, § 9:8, p. 191 ............................................... 8Repugnancy, § 7:7, p. 99 ...................................................................... 6, 19

iv

PRELIMINARY STATEMENT

In this Brief, the appellants, Jeremiah Ammann ("Jeremiah") and Laura

Amman ("Laura") will be referred to: individually, as "Jeremiah" and "Laura,"

respectively; and collectively as the "Appellants." Laura's maiden name was

Chaney. Appellants were married on 21 June 2008.

When a term is going to be used later to refer to a person, paper or thing, the

first mention of the term will be placed inside in quotes, emphasized by bold type

and usually in parentheses as shown above. Most dates will be in bold type to

facilitate review of the text.

The Record on Appeal will be referred to as the "Record." Citations to the

Record will be made in parentheses by the letter "R," i.e. when referring to a whole

page it will be like this: (R-1:074). The "1" refers to the volume number and the

"074" refers to the page number as stamped by the Clerk at the top right of the

page. Three digits will be used for all page numbers. When referring to a numbered

paragraph, it will be like this: (R-1:047:2). The "2" refers to the numbered

paragraph "2" on page 047 of volume 1. If the paragraphs on a page are not

numbered, it will be like this: (R-1:005:4th) which means the 4th paragraph when

counting down from the first paragraph at the top of the page (even if the first one

is only a partial paragraph). If there is a section number, it will come before the

v

paragraph number.

Highlands County is a Co-Defendant in the case below because the County

loaned Appellants money to catch up loan payments in 2007. The attorney of

record for the County is Elizabeth V. Lenihan ("Ms. Lenihan"), FL Bar No. 44468

(R-175). Ms. Lenihan filed answers for the County. The last hearing Ms. Lenihan

attended was 19 October 2010. (see R-4:552:19-25)

Chase Home Finance's law firm is Florida Default Law Group, P.L. (also

d.b.a. Echevarria, Codilis & Stawiarski) ("Law Firm"). The Law Firm and three of

its employee attorneys (collectively "Attorneys") were named as defendants in

Appellants' Cross-Claim. "Third-Party Defendants are a Florida law firm and

employee lawyers licensed to practice in Florida who filed the foreclosure action

against [Appellants] as counsel for its client, the Plaintiff [CHF]. (R-4:533:5)

Because the attorney, Brian Hummel filed the initial complaint, he is the

attorney of record, the only attorney of record for plaintiff below. He never

withdrew from the case. All the other 16 or so attorneys are non-compliant because

no substitution of attorney was ever filed and only one attorney filed a notice of

appearance as co-counsel, Damon Ellis. Mr. Ellis's notice said he was appearing for

the Law Firm and its attorneys, not for the Plaintiff below.

Although there are four (4) complaints, there are only three (3) answers,

vi

which are named Answer #1, Answer #3 and Answer #4 to relate to the

corresponding Complaint number and to help avoid confusion. The Attorneys have

worked hard to make the case below very confusing.

Definitions are from Black's Law Dictionary, 5th Ed., © 1979, West

Publishing Co., St. Paul Minn., Henry Campbell Black, M.A., unless otherwise

stated, and will be cited like this: BLD at page.

Trawick's will be cited like this: Trawick's § 6:7 section title, p.

The Foreclosure Bench Book will be cited like this: FBB at p., section title,

paragraph number if appropriate.

vii

I. STATEMENT OF THE CASE AND FACTS

A. NATURE OF THE CASE BELOW

It began on 23 July 2008 as a premature and malicious1 residential-real-

estate-foreclosure action ("Action") filed by a Florida attorney, for an out-of-state

company who was alleged to be the assignee of a lost, overdue note2 (which

appears to be a non-negotiable3 instrument) and a dormant mortgage. The

assignee's name does not appear on either the un-indorsed note-exhibit or the

mortgage-exhibit, and no assignment-exhibit is attached to either the initial or the

last complaint. The last complaint does not even allege an assignment.

Although the initial complaint alleged "Plaintiff was in possession of the

Mortgage Note and entitled to enforce it when loss of possession occurred or

Plaintiff has been assigned the right to enforce the Mortgage Note,"4 a subsequent

paragraph5 in the same count says "At some time between December 2, 2005, and

1 "'malice' merely means a lack of legal justification." Gates v. Utsey, 177 So.2d 486, 1st DCA (July 27, 1965), at 488. "Malice in law. The intentional doing of a wrongful act without just cause or excuse." BLD at p. 863.

2 The purported original note was evidently found and filed in 2010 (R-2:188). 3 (R-4:499:47) "Non-negotiable. Not negotiable; not capable of passing title or

property by indorsement and delivery. An instrument which may not be transferred by indorsement and delivery or by delivery alone, though it may be assigned. The transferee does not become a holder unless it is negotiated." BLD, p. 952. CHF claims to be suing on only the mortgage, not the note.

4 (R-1:003:19) Emphasis added.5 (R-1:004:21) Emphasis added.

1

the present, the Mortgage Note has either been lost or destroyed and the Plaintiff is

unable to state the manner in which this occurred. After due and diligent search,

Plaintiff has been unable to obtain possession of the Mortgage Note." This latter

allegation contradicts the former "in possession" allegation which makes the

pleading a nullity according to Mr. Henry Trawick6. Plaintiff avers it doesn't know

when or how the note went missing.7 So, only the second part of the first-quoted

allegation can, possibly, be true: "Plaintiff has been assigned the right to enforce."

However, no assignment-exhibit was attached to the initial complaint and the

Record shows that the assignment8 did not exist until two days later, when it was

signed and notarized in Ohio on 25 July 2008.

After a motion to dismiss, the initial complaint was dismissed almost a year

later on 21 May 2009 (R-1:074), because Plaintiff failed to show its "standing" or

"right to sue" and the complaint failed to "state a cause of action." Although it is

hard to believe, after three years, four complaints, four judges and a small army of

attorneys, the final complaint in this action is less sufficient than the first!

6 "Repugnancy occurs when allegations within a single cause of action ... are inconsistent and thus neutralize each other. The resulting pleading is a nullity. This may occur in the pleading or between it and an attached exhibit." Trawick's § 6:7 Repugnancy, at page 99.

7 Appellants sent interrogatories about the missing document at R-1:109:7,8.Answers were filed after the purported original note was filed in April 2010.

8 The face of the assignment says it was "prepared by" one Hendys Cabrera who is not, and may never have been, listed as a member of the Florida Bar.

2

1. The Parties, Four Complaints, and Three Answers

Appellants, Jeremiah Ammann and Laura Ammann (nee Chaney), are the

recorded owners of their homestead property: 1820 Iris Avenue in Sebring,

Highlands County, Florida (R-1:002:5; 1:079:5; and 2:282:5). Their home is the

single-family, residential real estate property which is the subject property

("Property") (R-1:025 and 4:480:1) of the Action.

JPMorgan Chase Bank, N. A. ("JPMCB") is not named as a party in any

pleading below, however, it was the original lender and is the putative assignor9 of

a purported Assignment of Mortgage (R-1:085) ("Assignment") to the putative

assignee and original Plaintiff, Chase Home Finance, LLC ("CHF") (R-1:001).

JPMCB was both the lender and the mortgagee pursuant to "a" promissory note

which is similar to the one alleged in Plaintiff's complaint at R-1:026; 1:100;

2:24910; and 2:303 ("Note" refers to the un-indorsed note-exhibit attached to the

last complaint at R-2:303) and "a" mortgage which is similar to the one alleged in

Plaintiff's complaints at R-1:009; 1:086; 2:235; and 2:28911 ("Mortgage" refers to

the mortgage-exhibit attached to the last complaint at R-2:289). The actual

originals were signed by Appellants on 2 December 2005. In addition to the Note

9 See R-1:085; 1:003:19; 1:079:4 and 1:080:17; no assignment is alleged in the Third and Fourth Complaints which each had no "lost note" count.

10 This is the only note-exhibit that shows an indorsement at R-2:251.11 The last three (3) alleged mortgages are missing pages 3, 4 and 9.

3

and Mortgage, the Record shows one more contract which affects the negotiation

and transfer of the Note and Mortgage: a "Loan Note Guarantee" (R-2:191-192)

between JPMCB and the United States of America which will be mentioned later.

CHF has filed four (4) complaints (the "Complaints") in the Action:

1. The "First Complaint" (R-1:001) is the initial "Mortgage Foreclosure

Complaint" filed by Brian Hummel ("Mr. Hummel")12 on 23 July 2008 with two

counts, no assignment, a mortgage-exhibit and a note-exhibit with no indorsement

(R-1:no page number, but after page 027). In response, Appellants' Answer #1 (R-

1:031) was filed on 18 September 2008, and their "Motion to Dismiss for Failure

to State a Cause of Action" (R-1:047) was filed 17 February 2009.

The First Complaint was DISMISSED on 21 May 2009 (R-1:074).

2. The "Second Complaint" (R-1:078) is the "Amended Mortgage

Foreclosure Complaint" filed by Ashleigh L. Politano on 9 June 2009 pursuant to

the lower court's order of dismissal, with two counts, an assignment-exhibit (R-

1:085) that was executed two (2) days after the Action was filed, a mortgage-

exhibit missing pages 3, 4 and 9 (R-1:087-088 and 091-092), and a note-exhibit

with no indorsement (R-1:102). No answer was filed in response to the Second

Complaint, so there is no Answer to #2.

12 CHF's only "attorney of record" never withdrew from the case.

4

On 20 May 2010, CHF filed and served its "Notice of Hearing" for its

Motion for Summary Judgment to be Heard on 9 August 2010.

3. The "Third Complaint" (R-2:228) is the unverified "Second Amended

Mortgage Foreclosure Complaint" filed by Ashleigh L. Price (nee Politano "Ms.

Price") with its motion-for-leave13 (R-2:226)--said motion was served upon

multiple defendants without copies of the proposed pleading (R-2:273:21 - 274:1;

274:11-20)14--on 16 June 2010 with only one count, no allegation of an

assignment, no assignment-exhibit, a mortgage-exhibit missing pages 3, 4 and 9

(R-2:236-237 and 240-241), and a note-exhibit with an undated, qualified

indorsement in blank15 by Wanda Crockham for JPMCB "without recourse" (R-

2:251). In response, Appellants' Answer #3 (R-3:351) with a Counterclaim and a

Crossclaim (the "Claims") (R-3:356)16 was filed on 31 August 2010. (R-3:351)

(indigent status was approved for the Claims); and

CHF filed the Fourth Complaint on 3 August 2010, but CHF did not

cancel the Summary Judgment Hearing set for 9 August 2010.17

13 This motion was filed two months after F. R. Civ. P., Rule 1.110 was amended.14 Appellants received a copy of the proposed pleading on 29 July 2010, ten days

after the hearing, (R-2:269) but it had no copy of an assignment with it.15 This note-exhibit fails to disclose that any transfer of the note or "servicing

rights" was restricted by the Loan Note Guarantee dated 23 December 2005 (R-2:191-192) which, on its face, shows no transfer on or before 23 July 2008.

16 "Counterclaims and crossclaims are incorporated in the answer ... and ... have no ... separate signature or certificate of service." Trawick's §12.2 Form, p 225.

17 At the summary judgment hearing, Ms. Lenihan said the "County has not been given an opportunity to answer that [4th] complaint, so we're not really sure

5

4. The last and Fourth Complaint (2:281) is the unverified Third Amended

Mortgage Foreclosure Complaint filed improperly by Ms. Price on 3 August 2010

with no concurrent motion-for-leave or permission from Appellants, a bogus

certificate of service (R-2:283 and R-3:368:21 - 369:3), only one count, no

allegation of an assignment, no assignment-exhibit, pages 3, 4 and 9 missing18

from the attached mortgage-exhibit (see R-2:290-291 and 294-295), and a note-

exhibit with no indorsement (R-2:305). Although the purported original note and

mortgage were in the court's file, those documents were not within the "four

corners" of the Fourth Complaint and they are different from the note-exhibit and

the mortgage-exhibit attached to the complaint. No "original" of the Assignment

has been seen by Appellants. In a similar case, this Appellate Court has said:

We view U.S. Bank's filing of a copy of the note that it later asserted was the original note as a supplemental exhibit to its complaint to reestablish a lost note as an attempt to amend its complaint in violation of Florida Rule of Civil Procedure 1.190(a). U.S. Bank did not seek leave of court or the consent of Feltus to amend its complaint. A pleading filed in violation of rule 1.190(a) is a nullity, and the controversy should be determined based on the properly filed pleadings.19

In response to the Fourth Complaint, Appellants' Answer #4 (R-4:480) with

how we can have summary judgment on a complaint that hasn't been answered." (R-3:368:25-369:3)

18 A material "transfer-of-rights-in-the-property" clause is missing. Rule 1.130(a).19 Feltus v. US Bank, N.A., 2D10-3727, Opinion Filed 19 Oct. 2011, p. 3, last ¶.

6

Claims (R-4:497) was served (R-4:505) by mail and filed on 18 November 2010

as one continuous document held by one staple. After the Answer and the Claims

were each date-stamped by one clerk, another clerk came up and told Laura she

would have to file another application for indigent status regarding the Claims.

This clerk, sua sponte, separated the Claims from Answer #4 and crossed out the

original date-stamp on the Claims ("Separation Event"). Appellants believe the

clerk should not have done this.20 The Claims were held by the Clerk's Office until

Appellants filed a second application and were approved, again, on 7 December

2010. The Claims were then date-stamped on 8 December 2010 (R-4:497).

CHF used this Separation Event as one of its reasons for asking the court to

dismiss the Claims (R-4:532:2). At the Hearing of 8 April 2011, an non-compliant

attorney, Rhonda Lewis ("Ms. Lewis"), told the court that Answer #4 and the

Claims "were not in one pleading." ( R-5:672:25 - 673:1-2). Judge Estrada asked

Laura for a response and she replied:

Respectfully, Your Honor, I did file the answer, cross-claim and counter-claim all together with the affirmative defenses on November 18th [2010]. That may have been a mistake by the clerk to separate them. However, I sent it all in the mail as one packet stapled together to the attorney's office. They should have gotten it all together with the answer. (R-5:673:18-24)

CHF never complained about any of Appellants' certificates of service.

20 "The clerk must accept papers tendered for filing." Trawick's § 7:7 Filing and service, p. 133.

7

CHF filed no answer-pleading to the Counterclaim. CHF filed no motions

for extension of time on or before 13 December 2010 which was twenty-five (25)

days after service by mail (R-5:671:10-13).

A non-compliant attorney, Jeffery M. Gano ("Mr. Gano"), filed a tardy

"Motion for Extension of Time" to respond to Appellants' "AFFIRMATIVE

DEFENSES" (R-4:506-507)21 on 16 December 2010 (R-5:671:13-16).

Without allowing Appellants the usual ten (10) days' time to object, (R-

4:514:21-22) four (4) days later, Judge Estrada--ex parte--"Granted" an extension

of time to Respond to "Complaint."22 Although a counterclaim may be considered

to be a complaint, CHF did not request leave to respond to a complaint (until three

days after leave had already been granted to them23. "The court cannot determine a

matter at a hearing that is not noticed for the hearing unless all parties consent...."24

This "order" appears to have been drawn up by an attorney, Erin Berger (R-

4:517:Firm: Kass, Shuler...; R-4:518:Copies furnished to; and 4:507) who was not

an employee of the Law Firm (R-4:554:4-7 and 555:21-24). Appellants filed an

21 The motion says "AFFIRMATIVE DEFENSES" six (6) times, but does not say "complaint," "crossclaim" or "counterclaim" at all.

22 "Affirmative defenses" are part of an answer, not a complaint, counterclaim or crossclaim. "Five days" plus 5 for mailing = 10, Trawick's § 9:8 Notices and Other Papers, p. 191.

23 See CHF's "Motion for Extension of Time to File a Response to Counterclaim..." filed by Mr. Gano on 23 December 2010 (R-4:523).

24 Trawick's § 15:5 Hearings, p. 262

8

"Objection" to the motion for extension of time along with their "Motion to Vacate

the Order..." on 22 December 2010 (R-4:513). Appellants thought the word

"Complaint" was a typographical error (R-4:514:12 sic 23), but Judge Estrada did

not correct it even after Laura brought it up at the hearing (R-4:554:15-20).

On 7 January 2011, a non-compliant attorney, Cindy L. Runyan, (no bar

number listed, R-4:530) ("Ms. Runyan") filed a "Motion to Strike Defendant

Affirmative Defenses" (R-4:529) which was fifty (50) days after (R-5:671:10-17)

Answer #4 was served on CHF. This motion is so generic that CHF could file it in

any other case without changing anything but the caption. Appellants had twenty-

one (21) defenses in their Answer #4 (R-4:481:14 - 485:34). CHF's motion did not

specify any single affirmative defense. Ms. Lewis, not Ms. Runyan, appeared at

the Hearing and she was only a little more specific (R-5:704:2 - 707:19).

Regarding a motion to strike defenses, Mr. Trawick makes four pertinent points:25

1. The motion [to strike] must be made within 20 days after service of the answer ... to which the motion is directed unless another time is ordered by the court.

2. When directed to several defenses, the motion should specify those to which it is directed. If this is not done and at least one is sufficient, the motion should be denied.26

25 Trawick's § 10:7 Motion to strike defenses, p. 202, citations omitted.26 Judge Estrada's handwritten order says: "Plaintiff has Twenty Days (20) to file

from date of order." (R-4:509 and 5:518) This order did not grant time to respond to an "answer" or to "affirmative defenses." The deadline was on Monday, 10 January 2011.

9

3. The forms of affirmative defenses approved by the Supreme Court are sufficient.

4. An initial defense should not be stricken without leave to amend.

Appellants copied the defense of "Statute of Limitations" word-for-word

from the Florida Rules of Civil Procedure, Form 1.96527 into their Answer #4

(R:4:483:24). For this reason, alone, the motion to strike should have been denied.

It should have been denied as untimely. It should have been denied as a nullity

because it was filed by a non-compliant attorney. Further, when the motion was

granted, Appellants should have been granted leave to amend.

CHF filed nothing within 25 days of Answer #4 being served and filed. That

deadline was 13 December 2010. Then, Judge Estrada granted the three-days-late

December 16th motion for extension of time on 20 December 2010 and 21 days

later, CHF missed that 10 January 2011 deadline to "Respond to Complaint."

On 14 January 2011, a non-compliant attorney, Cindy L. Runyan, (R-

4:538) filed a four-days-late "Motion to Dismiss Counterclaim and Motion to

Dismiss Third-Party Cross Claim" (R-4:532) on behalf of all Appellees.

At the 18 January 2011 Hearing, Laura objected to Ms. Lewis's appearing

on behalf of CHF by saying:

27 CHF's purported attorney, Rhonda Lewis, said, "I'm not sure what statute of limitations she's alleging because she just recites to a form." (R-5:706:14-15). A Civil Rule "Form" approved by the Florida Supreme Court.

10

First of all, Your Honor, I would like to note that Ms. Lewis is not an attorney of record and there's been no notice of appearance filed, and the Judicial Rules of Administration 2.505(e)(3) state that all attorneys who wish to be co-counsel should file a notice of appearance. (R-4-553:16-21; see also 4:554:4-7; 556:10-17 and 557:6-11)

After hearing Laura's objection, Judge Estrada spoke to Ms. Lewis:

"Ma'am, would you respond to the claims of the defendant in this matter as to what they perceive to be a violation of Florida Administrative Rules? They quote Pasco County versus Quail Hollow Properties, Inc., 693 So.2d 82, Southern District, in terms of the appearance of multiple attorneys." (R-4:555:8-14)

Ms. Lewis responds by saying:

"Your Honor, I apologize to the Court because I'm new with the firm, also, and I don't have that rule with me." (R-4:555:15-17)

Ms. Lewis fails to cite any law, case law or rule to counter Laura's

objection.28 Later, Judge Estrada says:

"I'll make the determination as to where we're going, as long as there's case law presented to me setting forth the prospective arguments...." (R-4:560:18-21)

Based upon his own words, the judge should have ruled in Laura's favor.

Instead, he said:

"I believe there's a misinterpretation by you. The way I read it and the way it is determined is if new counsel came on board that was outside the firm. In reviewing the documentation in this case, it stills remains

28 Ms. Lewis failed to cite any legal authority against Laura's two Florida cases, about verifying an amended complaint, at the 8 April 2011 Hearing. Ms. Lewis said: "I believe there is case law, I don't have it with me today.... (R-5:666:6-7)

11

under the current law firm of Florida Default Law Group. Although it's frustrating for the Court for attorneys to be changing, I still understand that it can happen within a firm without another subsequent appearance being done. On that claim, ma'am, I'll deny your motion [to vacate] at this time." (R-4:557:22 - 558:8).

It appears Judge Estrada misinterpreted the plain language of the Florida

Rules of Judicial Administration and pertinent case law. The Judge's arbitrary

decision does not appear to be founded upon any law, rule or case law. At the 25

February 2011 Hearing (R-4:595) on CHF's motions to dismiss counterclaim and

to strike affirmative defenses, Judge Estrada said:

[W]hen I make a ruling ... that ruling is backed not only by the facts but by the law. (R-4:615:15-17)

Appellants believe Judge Estrada ignored the facts and the law.

As shown above, Appellants only filed three (3) Answers, each in response

to a complaint filed by Plaintiff. Beyond these three Answers, Appellants did not

file any "amended" answer.

The reason Appellants filed the Claims (and the reason Appellants call this a

bogus and malicious foreclosure action) is that the Complaints are not sufficient to

state a foreclosure cause of action, CHF has no standing to bring the foreclosure

action, and--although the circuit court has jurisdiction to hear foreclosure actions

in general--the allegations of the Fourth Complaint have been negated by its own

controlling exhibits. Thus CHF has not alleged sufficient facts in its pleadings to

12

give the lower tribunal the subject matter jurisdiction it needs to hear this

particular Action (not to mention that the last two complaints were not verified).

"[A]ny ground showing that the court lacks jurisdiction of the subject matter may

be made at any time." Fla. R. Civ. P. 1.140(b). Further, the Attorneys in the Action

were active participants in this matter, prior to filing the law suit, and continue to

harass Appellants without legal justification.

The purported originals of the note (R-2:211) with an undated, qualified

indorsement in blank29 by Wanda Crockham for JPMCB "without recourse" (R-

2:213)30 and mortgage with no missing pages (R-2:193) were filed by Ms. Price

separately from any of the Complaints on 12 April 2010 (R-2:188)--almost two

years after the First Complaint (R-1:001) was filed.

At the 3-hour hearing of 8 April 2011 (R-5:644), the Law Firm's attorney,

Damon Ellis--who was "making a limited appearance ... on behalf of Florida

Default Law Group..." (R-5:648:3-14 and 5:650:19-21)--was, evidently, speaking

for CHF31 when he said something odd: "We don't have a separate count for a suit

on the note." (R-5:696:4-5) This isn't the only odd statement made by the attorneys

29 This note fails to disclose that any transfer of the note or "servicing rights" was restricted by the "Loan Note Guarantee" dated 23 December 2005 (R-2:191-192) which, on its face, shows no transfer on or before 23 July 2008.

30 Compare to the note-exhibit attached to the Third Complaint at R-2:251, and the note-exhibit attached to the Fourth Complaint at R-2:305.

31 Mr. Ellis argued for CHF without a notice of appearance to speak for CHF. Laura objected to both non-compliant attorneys at R-5:680:16 - 681:2.

13

about promissory notes and Florida law.

Ronald Pereira ("Mr. Pereira") filed a "Response" (R-1:125) to Appellants'

motion to dismiss (R-1:116) the Second Complaint. In that Response, Mr. Pereira

said something strange: "As the Note follows the Mortgage, Plaintiff has the right

to enforce the Mortgage and the Note." (R-1:126:7, last sentence). At the hearing

of 3 September 2009,32 the Law Firm's Emily Lang made the same topsy-turvy

argument when she said: "The note follows the mortgage." (R-1:140:17 and see

lines 13-17). Actually, Florida case law says just the opposite: The "mortgage

follows the note,"33 and an assignment of the mortgage--without an assignment of

the note--is a nullity because it "creates no rights in the assignee."34 (R-1:149:29 -

1:150:37).

Although the Complaints have not alleged any "equitable" transfer of the

note or mortgage, the Assignment says: "FOR VALUE RECEIVED, on or before

July 10, 2008...." However, the Assignment was executed on 25 July 2008, and

With regard to a written assignment, the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient, unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated. A retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment.35

32 Six months before the purported original note was filed in April 2010.33 Taylor v. Bayview, 2D10-1493, Opinion filed 9 November 2011, page 5, 1st ¶.34 See Vance v. Fields, Fla. 172 So.2d 613 (1965) headnote 2.(R-2:157:2) Ex.B-1.35 IndyMac v. Garcia, 2010 NY Slip Op 51127(U), 7282-2008, 22 June 2010.

14

A case similar to this Action was heard by the Supreme Court of New York.

The opinion in that case, which is on point with the issue raised below, said:

The issue presented on this appeal is whether an assignee of a note and mortgage has standing to commence a foreclosure action prior to the date of the execution of the assignment. We hold that an assignee in such a case has no standing.36

Appellants admit that they signed "a" note and "a" mortgage when they

purchased the Property. However, Appellants have questioned CHF's alleged right

to "enforce the Mortgage Note and Mortgage" (R-2:282:4) from the beginning of

the case below (R-1:031:4 - 1:032:10). The First Complaint was dismissed because

the "complaint fails to show the standing/right to sue of plaintiff nor attaches the

assignment documentation showing same." (R-1:074) Interestingly, three years

later, the unverified Fourth Complaint fails to say that Plaintiff "owns" the note

and mortgage; fails to allege any "assignment" and no assignment-exhibit is

attached; the mortgage-exhibit has no "transfer-of-rights" clause; and the note-

exhibit has no "indorsement" at all. It's like CHF went all the way back to square

one, but worse.

As shown above, the Fourth Complaint is even less sufficient than the First

Complaint. At least the First Complaint alleged that the right to enforce had been

"assigned" (R-1:003:19). Under a motion to dismiss, the allegations and exhibits

36 Wells Fargo v. Marchione, 20 Apr 2009, 2008-02775, NY Sup. Ct., App. Div.

15

within the four corners of the Fourth Complaint do not, sufficiently, invoke the

lower court's subject matter jurisdiction of this particular action, because the

controlling exhibits negate the material allegations, and the Fourth Complaint fails

to state a cause of action upon which the lower court can grant any relief. A

plaintiff's lack of standing at the start of the case is not a defect that can be cured

by the acquisition of standing after the case is filed.37 The reasons stated in this

paragraph form the basis of Appellants' Claims for violations of state and federal

laws and for quiet title (slander of title).

However, Appellants contend that: 1) CHF has not verified that it is the

"real party in interest" and, thus, it is making misrepresentations as to the

ownership, character and amount of the alleged debt; 2) CHF apparently was not

the owner of the debt at the inception of this case; 3) CHF's alleged ownership of

the debt came AFTER the debt was in default and AFTER CHF commenced the

Action; and 4) it has hired attorneys to collect the alleged debt. In short, CHF is a

debt collector attempting to collect an alleged consumer debt from consumers

(Appellants) through outside attorneys who claim to be "debt collectors" and who

use the United States Mail and the legal system, under color of law, to collect

alleged debts, without legal justification.

37 Progressive v. McGrath, 913 So.2d 1281 (Fla. 2nd DCA 2005); Marianna v Maund, 56 So. 760 (Fla. 1911) and Jeff-Ray v. Jacobsen, 566 So.2d 885 (Fla. 4th DCA 1990).

16

With CHF's vast experience in the loan-servicing business, and with the

army of attorneys at its disposal38, CHF knew, or should have known, that it had no

legal right to attempt to foreclose Appellants' ownership rights in the Property on

the day it filed its action below. Even if CHF had been the "owner and holder" of

the alleged note and mortgage prior to filing its action, CHF did not abide by the

notice requirements of the mortgage-exhibit before filing a law suit, and CHF

violated federal and state laws in its malicious attempt to collect an alleged

consumer debt from Appellants who are consumers according to the FDCPA.

Without the note, the mortgage is a nullity. The note is the debt as

acknowledged by Ms. Lewis when she said: "the note, which is the underlying

debt." (R-5:707:3) The Law Firm mailed two letters (R-2:284 and 2:286) to

Appellants ("Letters") which were an attempt to "collect a debt," not an attempt to

"foreclose a mortgage." Preparing an Assignment was neither an attempt to

"collect a debt," nor an attempt to "foreclose a mortgage." The Letters and the

Assignment fall outside any litigation immunity39 and outside a foreclosure action.

CHF and its attorneys argued that the only basis for the Claims was the law suit,

38 Out of 18 attorneys in the case below, only 1 of them is the actual attorney of record for CHF, Brian Hummel.

39 Since the "alleged conduct did not occur 'during the course of a judicial pro-ceeding,' [1215] none of these actions would be protected by the doctrine of litigation immunity." Edwards v. Landsman, 51 So.3d 1208, 1214-1215 (4th DCA 2011)

17

itself (R-5:683:5-8; 692:9-11) and papers in it. This argument is, itself, misleading,

because the Letters and Assignment are outside of the litigation, and yet they keep

pushing it.

It is the Law Firm's shoddy legal work that has led to an investigation by the

Florida Attorney General for possibly "fabricating" misleading documents in

foreclosure cases including "assignments of mortgages" (R-4:499:42). The Law

Firm and several of its attorneys helped CHF in its fraudulent and malicious

prosecution of the action below. Eight (8) days before it filed the action below, the

Law Firm produced the initial written communication which was mailed to

Appellants (R-1:005 and 1:007) and which notified them that they had "30 days"

to dispute the debt, before the Law Firm would consider the debt to be "valid."

Only one week later, the Law Firm prematurely assumed the debt was valid when

it filed the First Complaint. Then, the Florida Law Firm "prepared" the

Assignment (R-1:085) in Florida and sent it to Ohio where it appears to have been

executed two days after the commencement of the action. It was the Law Firm

who "requested" the recording of the Assignment in Highlands County's Official

Records. Lawyers have a duty not to participate in any fraud committed by their

clients. From this action, alone, it can be seen that the Law Firm has a bad habit of

not following the rules.

18

The Law Firm is the agent for its principal, CHF, and CHF is, evidently,

responsible for the acts of its agent.40

2. THE GUARANTEE THAT LIMITS INDORSEMENT

Appellants raised an affirmative defense (R-4:484:29) regarding a "Loan

Note Guarantee" (R-1:191). The United States of America, through the Rural

Housing Service ("RHS"), guaranteed the loan note in this matter. As a condition

of the Loan Note Guarantee issued to JPMCB:

"The Lender will be responsible for servicing the entire loan and Lender will remain mortgagee and/or secured party of record." (1:191:1.Loan Servicing)

Under the conditions of the Guarantee, a "blank" indorsement of the Note--

which would be payable to anyone--is not permissible, because the set of possible

lenders and the timing of a sale are limited as follows:

"Lender may sell the guaranteed loan only to a Lender which meets the qualifications and in the manner as provided in Subpart D, 7 CFR 1980. Such loan must not be in default at the time of the sale." (R-2:191:the paragraph above "CONDITIONS OF THE GUARANTEE.") [Underlining added.]

The set of possible "servicers" is, also, limited by the Loan Note Guarantee:

"The Lender may sell the loan servicing rights to an RHS eligible Lender when the Purchasing Lender agrees to be bound by all of the same terms as the selling Lender and this agreement and the RHS Agreement for Guaranteed Single Family Housing Loans." (R-

40 Gates v. Utsey, 177 So.2d 486, 488 (Fla. 1st DCA 1965) at ¶ 2. "The act of the agent for a disclosed principal is that of the principal." Trawick's, § 6.6, p. 99.

19

2:191:1.Loan Servicing)

3. THE COUNTER -CLAIM AND CROSS-CLAIMS

Appellants have raised issues of fact and law41 as to the identity of the "real

party in interest," and, in particular, have stated repeatedly, that CHF was not the

owner and holder of the original note and mortgage on the 23rd day of July 2008.

In the action below, Appellees are attempting to collect a debt allegedly

owed by Appellants to CHF.

The record shows that CHF was not the "real party in interest" on the day

CHF filed its First Complaint, which is why it was dismissed (1:074). This

dismissal validated Appellants contentions that CHF had made "false, deceptive

and/or misleading representations regarding the debt alleged in the Complaint" (R-

4:501:60). CHF has yet to verify or validate that it was the "owner and holder" of

the alleged note and mortgage when it initiated the action below. CHF first alleged

that it "is now the holder of the Mortgage Note and Mortgage" (R-1:002:4) on 23

July 2008, but did not say it "owned" the documents. However, the First

Complaint, itself, contradicts this allegation when it says: "Plaintiff has been

unable to obtain possession of the Mortgage Note." (1:004:21). This same

41 "A plaintiff has no foundation in law or fact to foreclose upon a mortgage, unless the plaintiff has shown it has legal or equitable interest in such mortgage." IndyMac v. Garcia, 2010 NY Slip Op 51127(U), 7282-2008, 22 June 2010.

20

paragraph in the First Complaint also says that the "Note" was "lost or destroyed"

at "some time between December 2, 2005, and the present...." Inconsistently, the

First Complaint also says: "Plaintiff was in possession of the Mortgage Note and

entitled to enforce it when loss of possession occurred" (R-1:003:19).

After the dismissal of the First Complaint, the Second Complaint vaguely

alleged that CHF "is the present designated holder and owner of the note and

mortgage with authority to pursue the present action by virtue of being a holder of

the note with enforcement rights and of the following assignments...." (R-1:079:4).

This allegation is inconsistent with the allegation that "Plaintiff has been unable to

obtain possession of the Mortgage Note" (R-1:080:19). Plaintiff cannot presently

"hold" something which it has been "unable to take possession of," especially

since they say they don't know when or how it went missing (R-1:080:19).

At the Hearing of 8 April 2010, Ms. Lewis seems to have gone off the deep

end of error when she said (R-5:706:25 - 707:6):

[Affirmative Defense paragraph] Number 27, no possession at the filing. A note is not required to be attached to the complaint.42 It will be our burden of proof at trial to show the existence of the note, which is the underlying debt, and the breach of it. However, it's not required to be attached to, it's not a defense to a mortgage foreclosure action.

42 Fla. R. Civ. P. 1.130(a) says, in pertinent part: "All ... documents upon which action may be brought ... or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading." See Safeco v. Ware, 401 So.2d 1129, 1130 (4 DCA 1981).

21

Paragraph 27 (R-4:484) said nothing about attaching a note to the

complaint. It merely says CHF did not have the note (debt) at filing. These

attorneys often wander off point like a tipsy coachman. The problem is, the

decisions being made by the judges are not based upon the facts, valid law, rules or

case law. The judges and the attorneys put a lot of importance upon the allegation

that CHF "now" (two years later) has possession of the purported original note.

The whole point of Paragraph 27 is that CHF did not have possession of said note

"when it filed the original complaint" (R-4:484:27) according to the Complaints

filed below by CHF. A lack of standing at the inception of the case cannot be cured

by obtaining standing later. Without standing, the court has no subject matter

jurisdiction and subject matter jurisdiction may be raised at any time.

A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it owns and holds the note and mortgage in question—otherwise, the plaintiff lacks standing to foreclose.

While it is true that standing to foreclose can be demonstrated by the filing of the original note with a special endorsement in favor of the plaintiff, this does not alter the rule that a party's standing is determined at the time the lawsuit was filed. Stated another way, "the plaintiff's lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed." Thus, a party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact.

22

Generally, where a mortgage foreclosure action is based on an assignment that was executed after the lawsuit was filed, the plaintiff has failed to state a cause of action. See Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990). In such cases, the proper course of action is for the plaintiff to file a new complaint.43

According to the Residential Foreclosure Bench Book, the Plaintiff: "Must

be the owner/holder of the note as of the date of filing suit." FBB, p. 5, ¶ 1,

(Emphasis added.) It, also says: "Endorsement in blank – where unsigned and

unauthenticated, an original note is insufficient to establish that the plaintiff is the

owner and holder of the note. Must have affidavits or deposition testimony

establishing plaintiff as owner and holder. Riggs v. Aurora Loan Services, LLC,

2010 WL 1561873 (Fla. 4th DCA 4/21/10)." FBB, p. 5, ¶ 1(a)(a).

In the Third and Fourth Complaints, CHF omitted the word "owner" and

alleged: "Plaintiff is now the holder of the Mortgage Note and Mortgage and/or is

entitled to enforce the Note and Mortgage." (R-2:229:4 and 2:282:4). The record

on appeal shows that CHF has failed to show that it was the "real party in interest"

either before, on or after the commencement of the action below. Plaintiff has,

also, failed to allege that it is prosecuting the foreclosure action on behalf of

someone else and failed to allege any "equitable" transfer of ownership prior to

filing its Action.

43 McLean v. JPMCB as Trustee, 4 DCA, No. 4D10-3429, 14 December 2011. Some citations omitted.

23

CHF's vague allegation/conclusion of law that it is "now44 the holder of the

Mortgage Note and Mortgage and/or is entitled to enforce the Mortgage Note and

Mortgage" (R-2:282:4) is not the simple, straight-forward wording approved by

the Florida Supreme Court.45 CHF's "and/or"46 statement is not a sufficient

statement for a pleading which is supposed to aver ultimate facts that can, and

must, be proved. Even if CHF was the holder, CHF failed to give notices as

required by the mortgage-exhibit and by pertinent law (R-4:481:9).

It is the deception, misrepresentation, failure to disclose, dishonesty, false

statements and fraud committed by CHF and its attorneys (who are all debt

collectors) while attempting to collect an alleged consumer debt, the note, that

was--prior to the filing of the First Complaint--not owed to CHF, that form the

basis of Appellants' Counter-Claim against CHF (the "CHF Claim") and Third-

Party Cross-Claim (the "TP Claim") (collectively, the "Claims") (R-4:497) against

the Law Firm and the attorneys (collectively, the "Attorneys") involved in the case

44 "now" apparently refers to the date of service for the Fourth Complaint which is "certified" to be 2 August 2010 by Ashleigh Price (2:283).

45 Form 1.944, Fla. R. Civ. P. (2010), paragraph 3 says: "Plaintiff owns and holds the note and mortgage." (See copy of Form 1.944 at 1:072-Exhibit A)

46 The use of "and/or" is condemned by the Florida Supreme Court, see: Cochrane v. Florida v. Florida East Coast Ry Co., 145 So. 217, 218 (Fla. 1932); and Garzon v. State, 980 So.2d 1038, 1045 (Fla. 2008)."The slash...in two grammatical abominations: and/or and he/she. It is especially unfit for legal writing because it is inherently ambiguous." Bryan A Garner (with Jeff Newman and Tiger Jackson), The Redbook: A Manual on Legal Style (St Paul, MN:2002), Rule 1.80 at 43. [Emphasis added.]

24

below.

(a) Count I: Violations of Federal and State Consumer-Protection Laws

Count One of the Claims (R-4:502) is for: "Violations of the FDCPA (15 -

U.S.C. § 1692 et seq.), Florida's Deceptive and Unfair Trade Practices Act (F.S. §

501.201 et seq.), and The Florida Consumer Collection Practices Act (F.S. §

559.551 et seq.)"

Consumer debt is defined as an obligation to pay money arising from a transaction whose subject (e.g., property) is primarily for personal, family, or household purposes. 15 U.S.C. § 1692a(5). The Fourth Circuit has held that the enforcement of a security interest through foreclosure falls within the parameters of the FDCPA. See Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373, 376 (4th Cir. 2006) (holding default on a note secured by a deed of trust is a consumer debt and concluding otherwise "would create an enormous loophole in the [FDCPA] immunizing any debt from coverage if that debt happened to be secured by a real property interest and foreclosure proceedings were used to collect the debt") (citations omitted).47

The attorneys argue that a foreclosure action is not subject to an FDCPA

claim. For the sake of argument, if CHF had legally owned and held the note on 23

July 2008, it could not have enforced the mortgage, because the conditions

precedent were not met as shown within the four corners of the First Complaint,

and the mortgage was, and is, still dormant. This means that CHF, and its

47 Edgar Johnson v. BAC Home Loans Servicing, et al., No. 5:10-CV-303-F, US Dist. Ct., E.D. North Carolina, Western Division, September 29, 2011, ORDER, paragraph under "1. Consumer Debt." Emphasis added.

25

attorneys, have only been attempting to enforce a consumer debt (the Note) since

the date of the Letters, 15 July 2008. The mortgage cannot be enforced, yet.

(b) Count II: Quiet Title (Slander of Title)

Count Two of the Claims (R-4:502) is for "Quiet Title (Slander of Title)."

Appellants are the recorded owners of the Property which is their homestead.

Appellees actions have affected the salability of Appellants' home, without legal

justification, and caused them financial damages of over $10,000 (R-4:502:62).

4. CHF'S INSUFFICIENT NOTICES AND ASSIGNMENT

Appellants denied (R-4:481:9) Plaintiff's bare assertion that "All conditions

precedent to the acceleration of the Mortgage Note and foreclosure of the

Mortgage have been performed or have occurred." (R-1:002:9) "A condition

precedent is one that must occur before the other party becomes liable."48 The

Record shows that the "conditions precedent" were not performed.

Prior to 17 July 2008, Appellants had received no written notice of

"acceleration" of the alleged note and mortgage (R-4:482:16). The Law Firm sent

two Letters (one to each Appellant) dated "July 15, 2008" (R-2:284-5 and 2:286-7)

that were not signed by anyone. Each of the Letters appears to be a dun letter49, a

48 Trawick's § 1:5 Definitions, p. 6, ¶ 1.49 Dun. A demand for payment (e.g. dun letter) to a delinquent debtor. BLD p. 451

26

payoff letter50 and a "notice of acceleration" because they say:

Pursuant to the terms of the promissory Note and Mortgage, our client has accelerated all sums due and owing, which means that the entire principal balance and all other sums recoverable under the terms of the promissory Note and Mortgage are now due. (R-1:005:1st ¶:2nd sentence) [Emphasis added.] ["now" = 15 July 2008]

The Letters do not offer Appellants "30 days" to "cure" any default (R-

1:019:18:¶3 and R-4:482:16).

Because the Letters were the first correspondence Appellants received from

the Law Firm, the Letters are each an "initial written communication"--sent prior

to the lawsuit--as described in the FDCPA at 15 U.S.C. § 1692e(11). Less than one

week after Appellants received the Letters, the Law Firm filed the First Complaint

on 23 July 2008 (R-1:001) in apparent violation of the FDCPA's 30-day notice

period, 15 U.S.C. § 1692g(a)(3) (R-4:483:22), and the written terms of the

mortgage-exhibit which say in pertinent parts:

• "All notices ... must be in writing." (R-1:018:15)

• "Lender may require immediate payment in full of all sums ... [unless] prohibited by Applicable Law." (R-1:019:18:¶2)

• "If Lender exercises this option, Lender shall give Borrower notice of acceleration. This notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period,

50 "...if you wish to...pay off your loan...contact this law firm...." (1:005:3rd ¶).

27

Lender may invoke any remedies permitted by this Security Instrument...." (R-1:019:18:¶3)

• "Neither Borrower nor Lender may commence ... any judicial action ... that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action."(R-1:020:20:¶2)

The Record shows no notice of acceleration prior to 15 July 2008, the date

on the Letters. So, even if CHF was the "real party in interest," CHF's failure to

perform the necessary conditions precedent is fatal to its foreclosure action below.

Although CHF is not the "lender," the Law Firm claimed CHF to be the

"creditor" and "servicer" on the date the Letters were written, 15 July 2008 (R-

1:005 and 1:007) and mailed to Appellants. The First Complaint was filed 23 July

2008. The Assignment (R-1:085) was prepared by the Law Firm--in Florida--and

then executed--in Ohio--two (2) days later on 25 July 2008. It was recorded in the

Highlands County Official Records on 14 August 2008, thus it was impossible to

attach a copy of the Assignment to the First Complaint (R-1:001). Appellants

received no notice of any assignment, of the note or mortgage, prior to the filing of

the First Complaint. A copy of the Assignment is attached to the Second Complaint

(R-1:078). However, the Third (R-2:228) and Fourth (R-2:281) Complaints do not

28

have a copy of the Assignment attached to them. The Third and Fourth Complaints

do not even allege an assignment.

5. THE INITIAL COMMUNICATIONS AND THE FDCPA

The Letters (R-2:284 and 2:286) were sent to "comply with the Fair Debt

Collection Practices Act and should not be considered a payoff letter" (R-2:284:3rd

and 2:286:3rd). However, the Letters state a dollar "amount owed ... through

today," (R-2:284:2nd and 2:286:2nd) and the Letters say "if you wish to ... pay off

your loan ... please contact this law firm..." (R-2:284:3rd and 2:286:3rd).

The Letters also say "Florida Default Law Group, P.L. is a debt collector."

"This law firm is attempting to collect a debt...." (R-2:284:4th and 2:286:4th).

There is even a "NOTICE" that says in bold type: "Florida Default Law Group,

P.L. is a debt collector. This Firm is attempting to collect a debt, and

information obtained may be used for the purpose." (R-2:285 and 2:287)

All four Complaints allege: "This firm has complied with the notice

requirement of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq, as

amended." (R-1:001:2; 1:078:2; 2:228:2 and 2:281:2).

The Letters and the Complaints prepared by the Law Firm express that the

Law Firm is a "debt collector" (R-2:284:4th and 2:285:NOTICE) which is defined

by the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.

29

("FDCPA") The Law Firm states that it has sent the Letters to "comply" with the

FDCPA (R-2:284:3rd), and that the Law Firm is attempting to "collect a debt,"

evidently as defined by the FDCPA, from the Appellants who are, thereby, implied

to be "consumers" as defined by the FDCPA.

In papers and hearings in the case below, Plaintiff and its Attorneys denied

that they were debt collectors and that they denied that they had to comply with the

FDCPA. However, Mr. Ellis did say this:

[F]or purposes of seeking that deficiency judgment Florida Default Law Group and its individual attorneys would, in my opinion, be deemed debt collectors at that point.... (R-5:697:18-21 and R-6:693:48)

Mr. Ellis ignores the fact that the Complaint seeks a "deficiency decree" (R-

2:283:WHEREFORE) without which they cannot seek any deficiency, or money,

judgments from Appellants if the Action concludes in their favor.

6. USING "IN REM" TO AVOID FDCPA LIABILITY

The trial court below, in general, has "in rem" jurisdiction over real estate

property in Highlands County. However, in this Action, the court must obtain

jurisdiction over the parties as well, and CHF has not alleged sufficient facts in its

Complaints to invoke subject matter jurisdiction.

In the seventh paragraph, the Letters say "this law firm will not be seeking a

personal money judgment against you." (R-2:285:7th and 2:287:7th) Contrary to

30

the Complaints' allegations that "This is an in rem action..." (R-2:281:1),

Appellants were named as Defendants (R-2:281) and served, personally, as

individuals.51 "Due service of process is essential to satisfy jurisdictional

requirements over the subject matter and the parties in a foreclosure action. Rule

1.070, Fla. R. of Civ. P. (2010) and Chapters 48 and 49 of the Florida Statutes."52

No "property" was named as a "defendant" in the Complaints, and the

Complaints pray for "the entry of a deficiency decree" (R-2:283). Regarding "in

rem" actions and "deficiency" judgments, Florida's "Expedited Foreclosure

Statute," F. S. § 702.10 (2010), allows a plaintiff to file an "order to show cause,"

but "only provides for entry of an in rem judgment; ... a deficiency judgment

cannot be entered under the show cause procedure."53 From this statute, it appears

that a "deficiency judgment" is not allowed in a pure "in rem" action in Florida.

In Florida, foreclosures are actions in "equity"54 and equity actions require

personal jurisdiction. Foreclosure actions are personal because they are meant to

foreclose the owner's "rights" and "interests" in the property. At best, the action

below is only a "quasi in rem" action, however, Mr. Trawick has said that the

quasi in rem classification:

51 CHF said this action is "a 2008 foreclosure action filed by [CHF] against Defendants and their real property...." (R-4:533:4) [Underlining added.]

52 FBB, at page 19, Service of Process, ¶ 1.53 Ibid, Florida's Expedited Foreclosure Statute, at page 50, ¶ 3(c).54 Florida Statute § 702.01 Equity. (2011)

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is unnecessary because the action, while it affects property, is directed to the rights of persons in the property and could be classed as an action in personam without extending the definition. The correct test is whether notice in the constitutional sense must be given to the defendant personally. If so, the action is in personam even though property is the subject matter of the action. If not, the action is in rem. Few in rem actions exist."55

It is not only misleading and dishonest to say it is an "in rem" action, but it

is prejudicial to Appellants. The Attorneys have improperly argued the in-rem

classification as a bar to Appellants' FDCPA Claims. Although the action below

may be "quasi in rem," it is more accurate and it is better for all concerned to

classify it as an "in personam" action.

For the sake of argument, even if it is 100 percent in rem, it is still a

residential "foreclosure" action which is subject to the FDCPA. Almost two (2)

years ago, the Supreme Court of the United States said:

"Respondents in this case are a law firm, Carlisle, McNellie, ... and one of its attorneys, Adrienne S. Foster (collectively Carlisle). In April 2006, ... Carlisle sought foreclosure of a mortgage.... the FDCPA's definition of "debt collector" includes lawyers who regularly, through litigation, attempt to collect consumer debts. 56

At the Hearing of 8 April 2011, Laura asked Judge Estrada, "Your Honor,

do you have a copy of the Residential Foreclosure Bench Book?" (R-65:692:15-

17) The Judge replied, "It's loaded on my computer for use when I need it." (R-

55 Trawick's § 1:1 Definitions, p. 3, ¶ 1.56 Jerman v. Carlisle, 130 S.Ct. 1605, 1609 and 1618 (April 2010)

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65:692:20-21) Then she read some words from the book:

Just for reference, page 16 under the FDCPA, paragraph two, states attorneys engaged in regular foreclosure work met the general definition of debt collector and are subject to the FDCPA.(R-5:692:22-25)

A foreclosure action can be the subject of an FDCPA action57 and attorneys

can be proper defendants in such an action.58 In the Action, the mortgage is still

dormant, so CHF is only suing on the note, a debt.

7. ELEMENTS OF AN FDCPA CLAIM WERE ALLEGED

The Claims (R-4:502) allege the necessary elements of a claim under the

strict-liability FDCPA, to wit: Debt collectors (Plaintiff and its attorneys) who

violated, and continue to violate, the FDCPA in their attempt to collect a consumer

debt--alleged to be owed to someone else--from consumers (Appellants) as

detailed below:

1. A consumer—“any natural person obligated or allegedly obligated to pay

57 "The Fourth Circuit has held that the enforcement of a security interest through foreclosure falls within the parameters of the FDCPA." JOHNSON v. BAC HOME LOANS SERVICING et al., No. 5:10-CV-303-F., U. S. Dist. Ct, E.D. North Carolina, Western Division. September 29, 2011.

58 "Some Florida courts held - attorneys engaged in regular foreclosure work met the general definition of debt collector and are subject to the FDCPA. Sandlin v. Shapiro, 919 F. Supp. 1564, 1567 (M.D. Fla. 1996), (law firm engaged in collection foreclosure work was considered a debt collector where the firm sent correspondence advising of payoff and reinstatement figures and directed mortgagors to pay the law firm)." FBB, at page 16, Fair Debt Collection Practices Act (FDCPA), ¶ 2.

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any debt.”59 Jeremiah and Laura were each alleged to be a "consumer"

because they were allegedly obligated to pay a debt (R-4:498:39-40);

2. A consumer debt—“any obligation. . . [incurred] primarily for personal,

family or household purposes.”60 A "financial obligation" was alleged to be

incurred for "personal, family or household purposes." (R-4:499:47);

3. A debt collector—"any person who uses any instrumentality of interstate

commerce or the mails in any business the principal purpose of which is the

collection of any debts, or who regularly collects or attempts to collect,

directly or indirectly, debts owed or due or asserted to be owed or due

another."61 CHF (R-4:498:41; 4:500:51)62, the Law Firm (R-4:498:41), and

three of its attorneys, Ms. Price (R-4:499:43), Mr. Pereira (R-4:499:44) and

Ms. Cruz-Alvarez (R-4:499:45) were all alleged to be "debt collectors"; and

4. Violations of the FDCPA were alleged in the Answer/Claims (30-day

notice-violation-R-4:483:22, general violations-R-4:497:36; falsehoods-R-

R-4:498:37-38; specific violations-R-4:500:51-4:401:61).

The Law Firm and its attorneys argued that they were "immune" from

litigation under the FDCPA and that they were protected by Florida's "litigation

59 15 U.S.C. § 1692a(3)60 15 U.S.C. § 1692a(5) including debts associated with foreclosures.61 15 U.S.C. § 1692a(6) including lawyers, see Heintz v Jenkins, 514 US 291;

115 S Ct 1489; 131 L Ed 2d 395 (1995).62 Sometimes, even a "creditor" is legally considered to be a "debt collector."

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privilege" because the Claims were only about the actual litigation below.

Seventeen (17) years ago, the United States Supreme Court addressed the

specific issue of "whether the term 'debt collector' in the Fair Debt Collection

Practices Act applies to a lawyer who 'regularly,' through litigation, tries to collect

consumer debts." The U.S. Supreme Court said:

[T]he Act applies to attorneys who "regularly" engage in consumer-debt-collection activity, even when that activity consists of litigation.63

Because these elements were alleged; because the action below is an "in

personam" equity foreclosure action which seeks to collect on a note-debt and

seeks a deficiency judgment; and because the Attorneys are not "immune" to an

FDCPA claim64, the Claims did state a cause of action for violations of the FDCPA

against Plaintiff and Cross-Defendants.

"The law in Florida is clear that a Motion to Dismiss filed pursuant to Florida Rules of Civil Procedure 1.140(b), tests the legal sufficiency of the Plaintiff's Complaint to state a cause of action. ... The trial court is restricted to a review of the allegations within the four corners of the Complaint. ... In other words, the trial court must take the pleaded facts as true and without considering how the allegations will ultimately be proven. Troupe v. Redner, 562 So.2d 394, 395 (Fla. 2d Dist. App. 1995)" (See R-1:125:3).

Thus, the lower court erred once by "dismissing" the Claims and erred twice

by dismissing them "with prejudice" even after a motion to reconsider (R-6:784).

63 Heintz v Jenkins,514 U.S. 291, 299 (1995)64 The Law Firm, itself, is not an attorney authorized to practice law in Florida.

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Although Appellants believe their Claims are sufficient to state a cause of

action on Count I, they welcome the opportunity to amend their Claims to be more

specific about state-law claims and the violation of the 30-day-notice-period under

FDCPA § 1692g(3) (R-4:483:22), to clearly point out that the Letters say "If you

do not notify this law firm in writing within thirty (30) days ....", to add copies of

the Letters to the Claims, or anything else that is deemed appropriate by the

Appellate Court.

8. ELEMENTS OF A "QUIET TITLE" ACTION WERE ALLEGED

The Claims allege the necessary elements of a "Quiet Title (Slander of Title)

"cause of action (R-4:502) as detailed below:

Liability is generally imposed upon a defendant (Appellees) who65:

1. communicates to a third person (R-4:503:68-70);

• Plaintiff communicated to third persons, the Law Firm and its Attorneys.

The Law Firm prepared and mailed the Letters, then the Law Firm

through its attorney--Brian Hummel--communicated to other third parties

(courthouse personnel, official records personnel and the public) when it

maliciously and prematurely filed a law suit and a "lis pendens" on 23

July 2008, and the Law Firm communicated to an out-of-state third party,

65 See Florida Causes of Action, Slander of Title § 13:40, at p. 13-12.

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JPMCB's Vice President in Ohio--Stacy E. Spohn (R-1:085), when it

prepared the Assignment and sent it to Ms. Spohn for her signature after

the law suit had already been filed, and the Law Firm made another third-

party communication (to the official-records personnel and to the public)

when it requested the recording of the Assignment on 14 August 2008.

2. makes statements disparaging the plaintiff's title (R-4:503:70-72);

• The Letters and the Assignment were outside the litigation of the

foreclosure action, which means they are outside any privilege or

immunity an attorney might have "inside" a litigation. A lis pendens is

only justified when a plaintiff is the "real party in interest" and has

complied with all conditions precedent and pertinent laws. A law suit and

a lis pendens are malicious when a plaintiff has no legal justification to

file them. A "notice of lis pendens" is "a notice of pending litigation the

effect thereof on the owner of property is constraining."66 [Emphasis

added.]

3. makes statements which are not true in fact (R-4:503:68-70); and

a) The law suit and the lis pendens were filed in July 2008. The foreclosure

was dismissed in May 2009, because Plaintiff had no standing to sue,

and still have no standing.

66 BLD, Lis Pendens, p. 840.

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b) Even if Plaintiff had standing at the inception of the case below, Plaintiff

did not abide by the conditions precedent of the Mortgage or the law.

4. which cause the plaintiff actual damage (R-4:502:62 and 4:503:73).

"[R]ecovery in an action for slander of title requires proof that a false and

malicious statement was made in disparagement of the plaintiff's title to the

property in question and caused him/her/it damage."67

II. SUMMARY OF ARGUMENT

The Claims (R-4:497) were filed on 18 November 2010 and no "answer"

(responsive pleading) was filed. Florida's Supreme Court has said, "[W]e hold that

a plaintiff has the absolute right to amend a complaint once as a matter of course

before a responsive pleading is served, and a trial court has no discretion to deny

such an amendment." Boca Burger v. Forum, 912 So.2d 561, 564 (2005).68

CHF amended its complaint three times and Judge Estrada would not let

Appellants amend once! A mortgage is not a negotiable instrument nor a "debt."

CHF is attempting to foreclose on a dormant mortgage, based upon a non-

negotiable note. CHF does not consider its foreclosure action to be the "collection

of a consumer debt." However, there are many problems with CHF's position: 1)

67 Ridgewood Utilities Corp. v. R. L. King, 426 So.2d 49, 50 (Fla. 2d DCA 1982).68 See Fla. R. Civ. P. 1.190(a). According to Boca Burger, a "motion to dismiss" is

"not a responsive pleading." Ibid, at 565.

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CHF's attorneys said it was a debt and that they were complying with the FDCPA

in their attempt to collect that debt (R-1:005:4th:last sentence); 2) CHF alleged it

did not have the note at inception (R-1:004:21 and R-4:484:27); 3) the note is not

negotiable because allows for additional debt (R-1:014:§5:2nd¶; 1:016:2nd¶:1st

sentence; and R-4:499:47 - R-500), thus it is not for a "fixed amount of money"

(F.S. § 673.1040)--so delivery, alone, to CHF does not make CHF a "holder"; 4)

CHF alleged the note was in default, or overdue, (R-1:002:6) before the

assignment was executed; 5) the note, not the mortgage, is a consumer debt by

definition; and 6) CHF is, in fact, only suing on the note, because conditions

precedent were not met, which means the mortgage is still dormant and CHF

cannot sue on a mortgage before those conditions are met.

III. ARGUMENT

The Action lacks both factual and legal merit. In spite of this lack of merit,

CHF and its attorneys have continued to prosecute the Action by ignoring facts,

law, rules and case law that are unfavorable to their case, by making contradictory

statements in pleadings and motions, and by twisting and obscuring facts and law

in their self-serving attempt to collect an unverified consumer debt.

Appellants are not the only ones complaining about bogus foreclosures.

There have been so many problems with Plaintiff's who file bad foreclosure

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actions, that the Florida Supreme Court amended the Rules of Civil Procedure in

February 2010 in an effort to "prevent the wasting of judicial resources and harm

to defendants resulting from suits brought by plaintiffs not entitled to enforce the

note." (R-3:308:15-16)

To establish that Appellants' Claims are valid against Appellees, Appellants

made a persistent effort in the case below, and have attempted in this Brief, to

show that CHF's Action was filed without factual or legal justification; that both

CHF and its attorneys are debt collectors who are attempting to collect an alleged,

and as yet unverified, consumer debt from Appellants--who are consumers--and

that their Claims have alleged the necessary elements of their two causes of action

herein. Even though the Claims are believed to be sufficient, Appellants do not

mind amending them, if need be.

At first glance, the case below looks like a valid foreclosure action, but a

closer look will reveal that it is a sham and that it has been from the beginning.

The First Complaint, with two counts, was dismissed because it failed "to state a

cause of action" and because CHF failed to show its "standing/right to sue." CHF's

reluctance to verify its Third and Fourth Complaints is telling by itself.

The Fourth Complaint, with one count, is worse than the First One, because:

1) The Fourth Complaint is not verified;69 2) The attached note-exhibit does not

69 Ms. Lowe had no law, rule or case law when she argued that the verification

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name CHF and it is not indorsed; 3) The attached mortgage-exhibit, also, does not

name CHF, and it is missing a "transfer of rights" clause; 4) No "assignment" is

alleged; 5) No copy of an "assignment" is attached; 6) Appellants were not

afforded a 30-day period nor a proper "notice of acceleration" to cure a default as

required by the mortgage-exhibit and by law; and 7) The Fourth Complaint was

filed and accepted by the lower court without a motion for leave to amend the

second amended complaint; 8) CHF has not alleged that it is foreclosing on behalf

of anyone else; 9) CHF has not alleged any equitable transfer of title; and 10) the

attached certificate of service is bogus.

A purported original note (R-2:211) was filed on 12 April 2010 (R-2:188)

which contains an undated, qualified, blank indorsement purportedly made by

JPMCB's Assistant Secretary Wanda Crockham (R-2:213). A blank indorsement

usually means that anyone can own the note simply by taking delivery and holding

it with valuable consideration. However, with this particular Note, a blank

indorsement does not appear to be valid or permitted, because JPMCB obtained a

"Loan Note Guarantee" (R-2:191, see R-4:484:29 and R-5:709:15 - 710:17) from

the federal government which restricts both the ownership rights and the servicing

rights of the Note and Mortgage.

requirement would not apply. Ms. Lowe said: "I'm not looking at the statute [sic rule] at the moment, but I believe that ... would not apply because this is simply an amended complaint. (R-3:390:13-15)

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On 18 November 2010, Appellants filed and served their "Defendants'

Answer to Third Amended Complaint" (R-4:480) which contained their "Counter-

Claim and Third-Party Cross-Claim" (R-4:497) against CHF, CHF's Law Firm and

three attorneys in the Law Firm.

The Claims have two counts (R-4:502):

1) "Violations of the FDCPA (15 - U.S.C. § 1692 et seq.), Florida's Deceptive and Unfair Trade Practices Act (F.S. § 501.201 et seq.) and The Florida Consumer Collection Practices Act (F.S. § 550.551 et seq.); and

2) Quiet Title (Slander of Title). (Affecting saleability of the Property, not its ownership which has been established.)

The non-compliant Law Firm's arguments for dismissal of the Claims were,

briefly, that the Claims: 1) were not "contained in a responsive pleading" (R-

4:532:2)70; 2) "fail to state a cause of action" (R-4:533:8); 3) were not "based in

indemnification, subrogation, or contribution" (R-4:534:2nd)71; 4) did not apply in

a foreclosure action because it "is an action in rem" and it "is not a suit against a

debtor" (R-4:534:3rd); 5) were "barred by the application of Florida's absolute

litigation privilege" (R-4:535:5th); and regarding Count II, failed to "satisfy the

elements of a slander of title action." (R-4:536) Items 4, and 5 were discussed

70 See our discussion of "Separation Event" on page 7 of this Brief.71 Appellees were not joined under 1.180(a). They were sued under FDCPA and

Fla. Rule Civ. P. 1.170(h) permits additional parties when their "presence" is "required to grant complete relief." See Edwards v. Landsman, 51 So.3d 1208, 1215 (4th DCA 2011)

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earlier in this Brief.

As one example (there are many in this case) of why attorneys should

follow the rules set up to guide their behavior in legal proceedings and why judges

should enforce those rules:

One of CHF's many non-compliant attorneys, Ashleigh L. Price, nee

Politano ("Ms. Price"), filed the two-count Second Complaint (R-1:078 and 1:080)

on 9 June 2009. In an apparent effort to avoid filing another amended complaint,

Ms. Price prepared a "Notice of Voluntary Dismissal as to Count II..." on 25

March 2010, which was filed on 12 April 2010 (R-2:216).

Appellants filed their "Motion to Strike Plaintiff's 'Notice of Voluntary

Dismissal Count II...'" on 21 May 2010. Their motion quoted the 4th District Court

of Appeal: "only an entire action may be voluntarily dismissed under Fla. R. Civ.

P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes

of action." Deseret Ranches of Florida, Inc. v. Bowman, 3402 So. 2d 1232, 1233

(R-1 2:220:4).

Ms. Price filed a "Motion for Leave to File..." (R-2:226) concurrently with

the proposed Third Complaint with only one count (R-2:228) on 10 June 2010.

The "Count II" and the "Leave" matters were heard before Judge Angela Cowden72

72 Appellants filed a Motion to Disqualify Judge Cowden because of her express bias against us. Laura objected that Ms. Lowe was not one of the "attorneys of record," and Judge Cowden said, "It doesn't matter." (R-3:387:12) Judge

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on 19 July 2010.73 At the hearing, Judge Cowden announced that Appellants'

Motion to Strike was "DENIED as Moot" because CHF was granted leave to file

the Third Complaint (R-2:277:1-9). Surprisingly, two days later, a "Notice of

Voluntary Dismissal..." of a non-existent "Count II" (R-4:478) dated 21 July 2010

with Ms. Price's name and signature, which was not filed until 18 November

2010. Appellants filed another "Motion to Strike..." (R-4:511) the second

immaterial notice on 22 December 2010. Mr. Gano filed a "Notice of Withdrawal

of Voluntary Dismissal of Count II" on 15 March 2011 (R-1 4:586).

An original lender is, normally, a "creditor" and is not accountable under the

FDCPA, however, there are times when even a creditor can be classified as a

"debtor" who must comply with the FDCPA. In the Action, however, CHF appears

to have obtained the the debt after it was in default.

"If ... the debt is already in default at the time of the assignment, the

mortgage servicer will be considered a “debt collector” for the purposes of the

FDCPA." Portley v. Litton Loan Servicing, U.S. Dist. Ct., Eastern District of

Pennsylvania, NO. 08-2799, Memorandum and Order, Tucker J., April 2010.

The Fourth Complaint does not allege that CHF "owns" the Note or

Mortgage. There is a 300-pound gorilla in the room that is being ignored by the

Cowden also said, "Ms. Ammann, ... all the things that you keep raising are totally ... unimportant to everything." (R-3:388:1-3)

73 Attended by Ms. Lenihan and Laura, in person; Mr. Pereira telephonically.

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lower court: When a plaintiff (especially one that has several years of experience

in the mortgage business and an army of attorneys at its disposal) refuses--twice in

a row--to copy the words from a Florida-Supreme-Court-approved form (1.944)

that simply say Plaintiff "owns and holds the note and mortgage," the one obvious

conclusion is that the plaintiff DOES NOT OWN the note and mortgage. Form

1.944 can be altered a little here and there to fit different sets of facts, but if the

substantive element of ownership is thrown out, then it is no longer the approved

form. Here's the thing, a mortgage obtained by fraud is a nullity in a court of law.

According to Florida Statute § 673.5011(2)(c) Appellants may return the

note or refuse payment for "lack of a necessary indorsement" or for CHF's "failure

to comply with the terms of the instrument." As shown above, the sale of the note

and its servicing rights are limited by federal law and the Loan Note Guarantee.

The face of the Fourth Complaint (with exhibits) shows that CHF failed to comply

with the terms of the note-exhibit as subject to the mortgage-exhibit.

IV. CONCLUSION

Two United States Supreme Court cases (Heintz and Jerman) have been

quoted to show that attorneys are subject to the FDCPA in a foreclosure litigation.

The Action below is not a valid foreclosure case, because the mortgage is dormant

and the Appellees are still attempting to collect on a note-debt, alone. Appellees

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have been acting as if all conditions precedent have occurred and as if they have

followed all the pertinent rules. As shown above, Appellees have failed to follow

almost all of the rules. The four judges below have failed to enforce the rules so

often that they could be considered to be complicit in the actions of the Appellees.

WHEREFORE, Appellants move this Appellate Court to vacate the orders

(R-6:763; 6:778 and 6:821) filed with their Notice of Appeal (R-6:823); to verify

that the Claims are valid, as is, or--in the alternative--allow Appellants time to

amend the Claims; to perform a plenary review of the Action below based upon

this appeal; review the purported "non-resident bond" (R-2:219) signed by an

attorney, but not by a surety nor by a principal, and rule on its validity; review all

papers signed by attorneys without any "notice of appearance" and rule on whether

their papers and appearances are a "nullity" or not; to dismiss the Action below

with prejudice for lack of standing and lack of subject matter jurisdiction; to make

such orders as to prevent any further injustices; for such other, further and different

relief as the Appellate Court deems appropriate.

-END-

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