Motion to Determine in personam jurisdiction in a Florida foreclosure action
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IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND FOR HIGHLANDS COUNTY, FLORIDA - CIVIL Monday – 28 July 2014 HSBC BANK USA, N.A., a Foreign Case No.: 2010 - 000 288 – GCS Corporation not Registered in Florida, as TRUSTEE for NHEL HOME EQUITY LOAN TRUST, SERIES 2006-WF1, a purported New York State Trust not Registered in the State of Florida, Plaintiff, vs. PAUL J. THORNTON, a resident of Highlands County, Florida, et al., Defendants. ________________________________/ DEFENDANT, PAUL THORNTON'S VERIFIED MOTIONS TO STRIKE THE ORDER SETTING TRIAL, TO DETERMINE IN PERSONAM JURISDICTION, TO TAKE JUDICIAL NOTICE OF OFFICIAL RECORDS, AND TO DISMISS THIS ACTION WITH PREJUDICE The Defendant, Paul J. Thornton for himself only, states that it is impossible for him to receive a fair and impartial hearing in this action when both the Plaintiff and the Court are ignoring the written rules. Defendant MOVES the Court to: A) STRIKE the “Order Setting Non-Jury Trial” (the “Order”) filed on Thursday, 5 June 2014, because granting it was beyond the Court's jurisdiction, there was an adjudication on the merits, it was improperly set and it appears to be a nullity; B) DETERMINE whether the Court has in personam jurisdiction over the following five (5) persons 1 who are directly related to papers filed in this action: 1) the trust 2 alleged in the purported “Verified Amended Complaint to Foreclose Mortgage” (“Complaint”), “Nomura Home Equity Loan Trust, Series 2006-WF1 Asset Backed Pass-Through Certificates” (“Trust”); 2) the trustee alleged in the Complaint, “HSBC Bank USA, National Association,” a national banking corporation that, upon information and belief, should be, but is 1 The word “person” is defined in the 2013 Florida Statutes section 1.01(3). 2 Upon information and belief, the Trust is not registered in Florida and no trust by that name is registered either in New York or with the Securities and Exchange Commission (SEC). See Florida Statute Chapter 609. It is, also, required to deposit, but—upon information and belief —it has not deposited or pledged a security as required by Florida Statute section 660.27.
Transcript
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUITIN AND FOR HIGHLANDS COUNTY, FLORIDA - CIVIL
Monday – 28 July 2014
HSBC BANK USA, N.A., a Foreign Case No.: 2010 - 000 288 – GCSCorporation not Registered in Florida,as TRUSTEE for NHEL HOME EQUITYLOAN TRUST, SERIES 2006-WF1,a purported New York State Trust notRegistered in the State of Florida,
Plaintiff,vs.
PAUL J. THORNTON, a resident ofHighlands County, Florida, et al.,
Defendants.________________________________/
DEFENDANT, PAUL THORNTON'S VERIFIED MOTIONSTO STRIKE THE ORDER SETTING TRIAL,
TO DETERMINE IN PERSONAM JURISDICTION,TO TAKE JUDICIAL NOTICE OF OFFICIAL RECORDS, AND
TO DISMISS THIS ACTION WITH PREJUDICE
The Defendant, Paul J. Thornton for himself only, states that it is impossible for him to
receive a fair and impartial hearing in this action when both the Plaintiff and the Court are
ignoring the written rules. Defendant MOVES the Court to: A) STRIKE the “Order Setting
Non-Jury Trial” (the “Order”) filed on Thursday, 5 June 2014, because granting it was beyond
the Court's jurisdiction, there was an adjudication on the merits, it was improperly set and it
appears to be a nullity; B) DETERMINE whether the Court has in personam jurisdiction over
the following five (5) persons1 who are directly related to papers filed in this action: 1) the trust2
alleged in the purported “Verified Amended Complaint to Foreclose Mortgage” (“Complaint”),
“Nomura Home Equity Loan Trust, Series 2006-WF1 Asset Backed Pass-Through
Certificates” (“Trust”); 2) the trustee alleged in the Complaint, “HSBC Bank USA, National
Association,” a national banking corporation that, upon information and belief, should be, but is
1 The word “person” is defined in the 2013 Florida Statutes section 1.01(3).2 Upon information and belief, the Trust is not registered in Florida and no trust by that name is
registered either in New York or with the Securities and Exchange Commission (SEC). See Florida Statute Chapter 609. It is, also, required to deposit, but—upon information and belief—it has not deposited or pledged a security as required by Florida Statute section 660.27.
not registered in the state of Florida, a.k.a. the Plaintiff (“HSBC”); 3) the purported affiant,
Vladimir Turina (“Turina”) who is not a party to this action and whose signature appears on the
non-compliant and purported “Certification of Possession of Original Note Previously Filed with
the Court”3 (“Certification”) under penalties of perjury on 3 September 2013, and who is, or was,
an apparent non-attorney employee of Ronald R. Wolfe & Associates, P.L., f.k.a. Florida Default
Law Group, P.L. (the “Firm”); 4) The purported “contractual servicer,” “Wells Fargo Bank,
NA” appears to be a non-party national banking corporation who is named on the fourth page of
the Complaint, but who is a stranger to this action (“Wells Fargo”); and 5) the purported affiant,
Lemar A. Smith (“Smith”), appears to be a non-party resident of North Carolina, who
purportedly verified the Complaint under penalty of perjury on Tuesday, 22 October 2013,
apparently without a power of attorney or any other written authorization having been attached
to, or alleged in, the amended complaint; C) TAKE JUDICIAL NOTICE of certain Court
records and Official Records of Highlands County, Florida which are mentioned below; and D)
DISMISS THE ACTION with prejudice because the Complaint fails to state a cause of action
(said failure is not correctable by amendment) and the Plaintiff is barred by the doctrine of res
judicata from litigating the same issues against the same parties more than once.4
The facts alleged below, in support of these motions, are made under oath according to
my own knowledge except for those allegations made upon information and belief which I
believe to be true. The grounds for these motions are stated below.
I. THIS ACTION IS “CLOSED” AND IT APPEARS THAT THE COURT HASNO JURISDICTION TO CONTINUE WITH ANY PROCEEDINGS HEREIN
1. My main objection in this paper is that this Court lacks jurisdiction over both the plaintiff
and the subject matter. Having made this objection, the Court is bound to review and to decide
the issues herein relating to jurisdiction. If the Court proceeds any further without such review
and decision, then the Court will be proceeding without jurisdiction (a.k.a. coram non judice)
and without due regard for the established rules of law. Commenting on the necessity for dealing
with an objection for “want of jurisdiction,” the Supreme Court of the United States said this:
[T]he case is now before us for consideration, on a motion by the defendant, todismiss the bill for want of jurisdiction in the cause.
However late this objection has been made, or may be made in any cause, in aninferior or appellate court of the United States, it must be considered and decided,
3 The Certification does not appear on the Clerk of Court's online docket.4 See Trawick, Fla. Prac. and Proc. § 25:15 Merger, res judicata ... (2010 ed.) at page 475.
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before any court can move one further step in the cause; as any movement isnecessarily the exercise of jurisdiction. Jurisdiction is the power to hear anddetermine the subject matter in controversy between parties to a suit, to adjudicateor exercise any judicial power over them; the question is, whether on the casebefore a court, their action is judicial or extra-judicial; with or without theauthority of law, to render a judgment or decree upon the rights of the litigantparties. If the law confers the power to render a judgment or decree, then the courthas jurisdiction; what shall be adjudged or decreed between the parties, and withwhich is the right of the case, is judicial action, by hearing and determining it.
2. To date, neither Plaintiff nor the Court has shown any authority for proceeding with this
case after a non-jury hearing on the merits, the filing of a final summary judgment and the setting
aside of that final judgment on 5 June 2013. In fact, both the Plaintiff and the Court have acted
capriciously5 and arbitrarily6.
3. “The lack of statutory authority to make particular order or judgment is akin to lack of
subject matter jurisdiction and is subject to collateral attack.”7
4. On Wednesday, 28 November 2012, Plaintiff filed an improper “Notice of Change [sic.,
Substitution] of Attorney,” (“Notice-1,” the first of two non-compliant “notices”) which says, in
pertinent part, “Kristia M. Bared [“Bared”] is no longer an attorney employed with the Ronald
R. Wolfe & Associates, P.L. and will no longer be assigned to this case. Trent A. Kennelly
[“Kennelly”] will now be appearing as counsel on behalf of Plaintiff.” This notice usurps the
Court's authority to decide whether an attorney-of-record will be withdrawn or whether a new
attorney will be substituted for an attorney-of-record. Defendant objected to the “non-compliant”
attorneys in his “Verified Cross-Motion for Summary Judgment...”8 Notice-1 is even more
improper because no written consent of the client was filed, no motion to withdraw was filed, no
motion to substitute was filed, and no order was granted to approve either a withdrawal or a
substitution. It is supposed to be up to the judge to approve withdrawals and substitutions of
attorneys. Here, the attorneys took over the Judge's job and the Court allowed this particular
5 For example: Judge Estrada granted Plaintiff's motion for leave to amend its complaint, without notice or a hearing at Plaintiff's request, on the same day the motion was filed, 1 Nov. 2013, and he granted Plaintiff's un-noticed and un-timely oral request for a trial date at a hearing that was supposed to be about Plaintiff's noticed motion for summary judgment without hearing or saying anything pertinent to the summary judgment issue on 3 June 2014.
6 Not supported by fair, solid, and substantial cause, and without reason given. http://thelawdictionary.org/arbitrary/
7 46 Am. Jur. 2d, Judgments § 25, pp. 388-89.8 See my “Verified Cross-Motion...” filed 20 March 2013, on page 15 beginning at ¶ 55.
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usurpation of its authority, not once, but twice.9 Notice-1 was, literally, performed coram non
judice,10 which makes it a nullity.
5. What about the often-used argument that the Firm represents the Plaintiff, so that any
attorney of the Firm can represent the Plaintiff without giving notice or without obtaining the
client's permission and without obtaining leave of court? Firstly, I have seen no rule that permits
any entity, other than a duly licensed individual, to represent any person in a Florida court.
Secondly, in this action, all the attorneys appear to be part of the Firm (at least when they signed
the relevant papers), yet they have filed two notices regarding a “change of attorney.” If they
thought the Firm, itself, could practice law and represent the Plaintiff in this Court, then there
was no “change of attorney” and the two notices were bogus.
6. According to the Florida Supreme Court:
A party cannot change his attorney without leave of court, and an order of courtgranting application for substitution is essential to render change of attorneysregular.11 [Underlining added.]
7. Florida's Second District Court of Appeal describes a similar non-compliant appearance
as a “nullity” and says that the rule applies to all “additional” attorneys, too:
We find persuasive the reasoning employed by the First District Court of Appealin Bortz v. Bortz, 675 So.2d 622 (Fla. 1st DCA 1996). In Bortz … the FirstDistrict found that the … motion for rehearing, filed by an attorney … who hadnot appeared in the cause theretofore, was a nullity and thus could not beconsidered by the trial court so as to allow the trial court to rehear the case or filean amended order. No motion had been filed requesting that the new attorney bepermitted to replace the … prior attorney. The First District based its conclusionon Florida Rule of Judicial Administration … entitled “Substitution ofAttorneys.” Subsection (h) provides … that attorneys for a party may besubstituted at any time by order of the court, that no substitute attorney mayappear without a court order, that the client be notified in writing of thesubstitution, and that the client's written consent be filed with the court.
The reasons for requiring substitute attorneys to be officially recognized by thecourt and client are clear. The court must be able to rely on representations ofattorneys because such representations bind the client. … Notices of appearancefor attorneys who come upon the scene at later dates have a similar effect on the
9 I have yet to see a rule that allows a law firm to practice law or to represent anyone as an attorney-at-law. A law firm cannot sign a paper in an “individual” capacity. You cannot file a complaint against a law firm with the Florida Bar.
10 "in the presence of a person not a judge." http://legal-dictionary.thefreedictionary.com/Coram It is following the rules, not wearing a robe, that makes someone a legitimate judge.
11 Diem v. Diem, 187 So. 569 (1939), and see 187 So.2d 598, at 637 (1966). Also see FRJA 2.505(e) and (f).
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court and other parties. The court and parties must know with whom they mustdeal.
So, too, does this reasoning apply … [to] an “additional” attorney. … Alladditional attorneys so appearing shall file a notice of appearance with the courtand shall serve a copy of the notice of appearance on all parties in theproceeding.12
8. In spite of the non-compliant notice that Bared was no longer an employee and no longer
“assigned to this case” in 2012, Plaintiff continued to file copies of Bared's papers with the Court
up to 2014. These papers have certificates of service that are false and insufficient, yet the Court
did nothing about them, even after Defendant raised the matter in his “Verified Response to the
Hearing on Plaintiff's Purported 'Motion for Summary Judgment'.”13
9. On Thursday, 14 February 2013, Plaintiff's non-compliant and fourth (4th) “Notice of
Hearing” with another photo-copied “Motion for Summary Judgment”14 was filed. Said motion
had Bared's signature and her certificate of service dated almost three years earlier—23 April
2010!
10. On Tuesday, 26 March 2013, a hearing was held on Plaintiff's non-compliant motion for
summary judgment. The hearing was recorded. The original transcript was filed. During the
hearing, Defendant raised the issues that: the complaint is not verified; the Plaintiff is not the
owner of the note and mortgage; the Plaintiff is not authorized to transact business in Florida;
and the trust is not registered in Florida.15
11. The attorney of record did not appear at the March 2013 hearing. Instead, a non-
compliant attorney, J. Bennett Kitterman (“Kitterman”)—without a notice of appearance16—
appeared via telephone and argued that the new Florida Rule of Civil Procedure (“FRCP”)
1.110(b) was not “final until June 1st, 2010. Plaintiff filed its complaint prior to that date;
therefore, plaintiff's complaint is proper at the time it was filed.”17 Thus, Kitterman admitted that
the initial complaint was not verified, but argued wrongly that it did not have to be verified.
12 Pasco County v. Quail Hollow Properties, 693 So.2d 82, at 83 (Fla. 2d DCA 1997).13 “Verified Response ...” at page 2, paragraphs 7 – 10, filed 30 May 2014.14 The motion, itself, does not appear separately on the docket. The other three (3) summary
judgment motions were filed: 27 April 2010; 13 July 2011 and 15 September 2011. The last three motions appear to be photo-copies of the 2010 motion with the same date of service.
15 See Transcript of 26 March 2013 hearing at page 4, line 16 to page 5, line 8.16 See my “Verified Cross-Motion...” at page 15, beginning at ¶ 55 and the Transcript of 2
May 2014 rehearing at page 4, lines 1 – 20 for my objections to non-compliant attorneys.17 See Transcript of 26 March 2013 hearing at page 6, lines 18 – 23.
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12. The Court's decision turned on the sufficiency of the complaint as argued by Kitterman.
The Court, not knowing that Kitterman was wrong, took Kitterman at his word and granted Final
Summary Judgment on 27 March 2013. In this judgment, the Court retained some jurisdiction, to
be used if needed.
13. On Wednesday, 27 March 2013, the case was set to the closed status of “DISPOSED.”
14. The Florida Supreme Court's Administrative Order No. AOSC14-20, signed by Chief
Justice, Ricky Polston on 26 March 2014 (v1.1.4 2014/03/10), says, in pertinent part:
A case is considered to be closed, or disposed, (that is, in a closed status) for courtactivity on the date of the judicial decision, order or other recordable action thatprovides resolution to the last (or all) of the matters brought before the court as aconsequence of the filing event that initiated the case. The court, then, has nofurther action to take on the case. [Underlining added.]
15. Although Plaintiff could have requested the Court's permission to “amend” its initial
complaint to add a “verification,” it made a tactical decision not to do so. Instead, it decided to
assert that its initial complaint was filed before the new FRCP 1.110(b) became effective in
“June” of 2010. Kitterman made a judgmental mistake of law. Plaintiff's failure to move for
leave to amend, appears to be a “waiver” of its right to amend, because Plaintiff did not believe it
was required and did not offer to “amend.” Plaintiff repeated its tactical error and its judgmental
mistake of law when it failed to move for leave to amend before the final judgment was set aside
and the case was CLOSED on 5 June 2013.
16. Regarding “tactical” errors and “mistakes of law,” FRCP 1.540:
is not intended to spare counsel from his own tactical errors or mistakes. …"[R]ule 1.540 does not provide relief for judgmental mistakes nor tactical errors ofcounsel nor from mistakes of law.18 [Citations omitted.]
17. Kitterman did not refute the allegation that Plaintiff was “not the owner of the note,” he
just argued that it was “irrelevant.”19 FRCP Form 1.944 provides a sample complaint to
foreclose. Paragraph 3 of that sample says: “Plaintiff owns and holds the note and mortgage.” To
enforce a mortgage, a plaintiff must either be the owner of the note and mortgage on the date it
files the complaint, or it must allege and prove that it is authorized to act for the person who was
the owner of the note and mortgage at the time the action was filed. Having possession of the
18 Hermitage Ins. Co. v. Oxygen in the Grove, 30 So.3D 549 at 551 (Fla. 3d DCA 2010).19 See Transcript of 26 March 2013 hearing at page 6, line 24 to page 7, line 1.
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note after the filing of the complaint is not sufficient, because standing cannot be obtained after
the inception of the action.
18. The Second District Court of Appeal wrote: “[T]he 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.”20 The Fourth District Court of Appeal said, “A party must have standing to file
suit at its inception and may not remedy this defect by subsequently obtaining standing.”21
19. “Judicial discretion is defined as: The power exercised by courts to determine questions
to which no strict rule of law is applicable but which, from their nature, and the circumstances of
the case, are controlled by the personal judgment of the court.”22 Judge Estrada's decisions in this
case are more than an “abuse of discretion.” He has, repeatedly, made incorrect applications of
existing rules of law in violation of my due-process rights. All of the decisions made by Judge
Estrada in this action (beginning 1 November 2013) appear to be coram non judice. If so, then all
of his orders are null and void.
20. Kitterman apparently misrepresented the law when he asserted that “it's not a requirement
that the plaintiff be registered to do business in the state of Florida; however plaintiff has filed a
nonresident cost bond....” Kitterman mentions two different requirements into one sentence: 1)
registering to do business in Florida (whether Plaintiff is doing its own business or the trust's);
and 2) filing a nonresident cost bond to protect defendants in a legal action. While it appears that
both requirements apply to the Plaintiff, Plaintiff has only complied with the second one.
21. As for the first requirement mentioned by Kitterman, it appears that the Plaintiff—acting
as a trustee of a trust—is required to comply with Florida Statute (“FS”) Chapter 609 entitled
“Common-Law Declarations of Trust” just like any other person (whether resident or non-
resident, state bank or national bank) who intends to conduct business in Florida under a
declaration of trust. This chapter requires registration and the payment of a $350.00 fee prior to a
trust conducting any business in Florida. However, Plaintiff does not allege that it has complied
with Chapter 609, and upon information and belief, Plaintiff has not complied with said chapter.
22. In addition to FS Chapter 609, Chapter 660 is entitled “TRUST BUSINESS” and section
660.27(1) says, in pertinent part,
“Before transacting any trust business in this state, every ... national bank ...having trust powers shall give satisfactory security deposit or pledge of security ...
having at all times a market value in an amount equal to 25 percent of the issuedand outstanding capital stock of such ... bank, ... or the sum of $25,000, whicheveris greater.” [Underlining added.]
23. Upon information and belief, Plaintiff has not given the “satisfactory security or pledge
of security” as required by FS Chapter 66023 and by 12 U.S.C. § 92a(f).
24. Regarding “security deposits” the federal law dealing with trust powers, 12 U.S. Code §
92a(f) says24:
Deposits of securities for protection of private or court trusts; execution ofand exemption from bond [Emphasis in original.]Whenever the laws of a State require corporations acting in a fiduciary capacityto deposit securities with the State authorities for the protection of private or courttrusts, national banks so acting shall be required to make similar deposits andsecurities so deposited shall be held for the protection of private or court trusts, asprovided by the State law. National banks in such cases shall not be required toexecute the bond usually required of individuals if State corporations undersimilar circumstances are exempt from this requirement. National banks shallhave power to execute such bond when so required by the laws of the State.
25. Plaintiff's Response to my Cross-Motion for Summary Judgment was filed on Monday, 5
May 2014 by a non-compliant attorney, Matthew D. Wolf (“Wolf”). Wolf says, at paragraph 14,
“Despite the fact that Plaintiff is excluded from the requirements of Section 607.1502, …
Plaintiff filed a Non-Resident Bond with the Court on May 31, 2011.” Again, a non-compliant
attorney confuses the two separate statutes, 607.1502 and 57.011. FS 57.011 has to do only with
non-resident plaintiff's (whether individuals or entities) who file law suits in Florida's circuit and
county courts. The Plaintiff's compliance with one statute does not have anything to do with the
other statute.
26. Wolf admits, “Pursuant to Fla. Stat. § 607.1501 (2011), a foreign corporation is required
to register with the state in order to transact business.” However, Wolf contends that while
Plaintiff is conducting the “activities” of acquiring and enforcing mortgages, these activities do
not constitute “transacting business” and thus, Plaintiff is excluded from registration pursuant to
§ 607.1501(2)(g) and (h) (2011).25 The non-compliant Wolf does not claim exclusion under §
607.1501(2)(i) “Transacting business in interstate commerce.” Nor does he claim federal law
preemption of any Florida statute.
23 See Lawson Products v. Tifco Industries, 660 F.Supp. 892 (1987).24 See, also, 12 U.S. Code § 92a(j) regarding national banks making security deposits with
state authorities. http://www.law.cornell.edu/uscode/text/12/92a25 Section 607.1501(2) does not list acquiring and enforcing “promissory notes.”
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27. Here is a table showing the various fees relating to Florida corporations, trusts and court
filings in this action which affect the Plaintiff's capacity to sue in Florida courts.
§ 609.02 “Declaration of Trust” filing fee28 $350.00 Unknown
§ 201.01 Excise Tax on Documents (mortgages) Variable Unknown
§ 865.09 Fictitious Name registration29 $50.00 Unknown
28. If Plaintiff's business activities were conducted only for itself and if those activities began
and ended only with “acquiring and enforcing mortgages,” then Wolf would be correct and his
client would not have to register. However, Plaintiff is conducting business for someone else, the
trust, and these “mortgage” activities are only a portion of the total business being conducted by
Plaintiff-Trustee and the Trust.30 Because most mortgages do not go into default, “enforcing”
mortgages is an even smaller portion of that business. Yet, it is the small portion that Plaintiff
focuses on, for its excuse in not paying fees that other corporations and banks pay.
29. It is important to note that FS Chapter 607, the Florida Business Corporation Act, does
not mention promissory notes, “selling” mortgages, issuing certificates, selling certificates,
securities, trading securities, unincorporated associations, or trusts. Trusts are governed by FS
Chapters 609 and 660.
30. According to the June 1, 2006 Pooling and Servicing Agreement (PSA)31 at Section 2.10
[Emphasis added.]:
The purpose of the common law trust,32 as created hereunder, is to engage in the following activities:
26 Failure to comply is a bar to legal proceedings. See § 607.1502(1).27 Failure to comply is a bar to legal proceedings. See § 607.1622(8).28 Failure to comply with FS Chapter 609 is a third-degree felony. See § 609.06.29 Failure to comply with FS Chapter 865 is a misdemeanor. See § 865.09(9).30 The total amount of the alleged certificates is approximately $600,000,000.00.31 The trust named in this PSA is: “Nomura Home Equity Loan, Inc., Home Equity Loan
Trust, Series 2006-WF1” which may, or may not, be the Trust alleged herein.32 It is not known at this time: whether the Trust alleged in the Complaint is the same trust
named in the June 1, 2006 PSA; whether the Trust is still active; whether the Trust has been sold to someone else; or whether it still exists.
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a) to acquire and hold the Mortgage Loans and the other assets of the Trust Fundand the proceeds therefrom;
b) to issue the Certificates sold to the Depositor in exchange for the MortgageLoans;
c) to make payments on the Certificates;d) to engage in those activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental or connected therewith; ande) subject to compliance with this Agreement, to engage in such other activities
as may be required in connection with conservation of the Trust Fund and themaking of distributions to the Certificateholders.
31. It appears that Plaintiff is not appearing sui juris33 because it is under a legal disability
which prevents it from acting for itself. It is under a self-inflicted obligation to act for the benefit
of someone else and it is under the authority of someone else. Because Plaintiff asserts it is
acting on behalf of someone else, it is alieni juris and, thus it appears, Plaintiff must comply with
the laws of Florida affecting trusts and their right to conduct trust business here. However,
Plaintiff has not shown that it has complied with the Florida trust laws and it, therefore, suffers a
further, self-inflicted legal disability which deprives it of the capacity to sue in Florida's courts
on any trust's behalf.
32. According to the Complaint, Plaintiff hired a Florida debt-collector, the Firm, to collect
an alleged consumer debt from a Florida resident. Attached to the Complaint is a copy of a letter
from the Firm stating that it is representing “HSBC Bank USA, National Association, as Trustee
for NHEL Home Equity Loan Trust, Series 2006-WF1” and that its “client has accelerated all
sums due and owing....34” (“NoA”) The letter also states that the Firm is “a debt collector.” At
that time, the Firm was not filing a legal action, it was merely attempting to help the Trust in
conducting some of its business, namely: collecting a consumer debt that was allegedly owed to
the Trust. Pursuant to the federal Fair Debt Collection Practices Act,35 15 U.S.C. §§ 1692-1692p
(“FDCPA”) and the Florida Consumer Collection Practices Act, F.S. Section 559.55 et seq.
(“FCCPA”), both Plaintiff and the Firm appear to be “debt collectors.”36
33. Defendant is not aware of the total number of consumer debts that Plaintiff is attempting
to collect in the State of Florida (either inside or outside of the courts), but a brief search on the
33 Defined as meaning “of his own right; possessing full social and civil rights; not under any legal disability, or the power of another....” http://thelawdictionary.org/sui-juris/
34 This letter appears to be a notice of acceleration or “NoA.” The creditor's name on the NoA does not match the Plaintiff's name on the amended complaint. This is repugnant.
35 As amended by Pub. L. 111-203, title X, 124 Stat. 2092 (2010).36 See Jackson v. Wells Fargo Home Mortgage, Inc., No 03-5019AP-88A (Fla. 6th Cir. App.
Ct. August 9, 2004).
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internet indicates that the number is in the hundreds and could be thousands. These business
transactions, if abusive or unfair, may be covered by the “Florida Deceptive and Unfair Trade
Practices Act,” FS 501.201 et seq. (“FDUTPA”) as well as the FDCPA and the FCCPA. The
United States Bankruptcy Court, Middle District of Florida, Tampa Division wrote this:
The National Bank Act preempts state laws that prevent or significantly interferewith the exercise by national banks of their powers. The Florida ConsumerCollection Practices Act applies generally to all creditors and prohibitsinappropriate debt collection practices. It does not prevent or significantlyinterfere with the business of banking. Accordingly, for the reasons set forthbelow, the Court concludes that the NBA does not preempt the FCCPA.37
34. Defendant moves the Court to take judicial notice of certain Official Records of
Highlands County, to wit: 1) Limited Power of Attorney (“LPoA”), dated 21 December 2006
and recorded 29 March 2007 at Book 2057, Pages 88-90; 2) LPoA, dated 24 October 2008 and
recorded 10 February 2009 at Book 2177, Pages 163-166; and 3) LPoA, dated 15 December
2008 and recorded 5 March 2009 at Book 2180, Pages 1349-1352 which bear witness that
Plaintiff, HSBC as representative of various “trusts,” is—by its own admission, “transacting
business” in Highlands County, Florida, and has apparently been been doing so since, at least
December 2006. The first page of each of these documents is attached hereto and made a part
hereof by this reference, as Exhibits “A,” “B” and “C.”
35. Similar to the first two LPoAs, the third LPoA says: “HSBC Bank USA, National
Association, hereby constitutes and appoints Wells Fargo Bank, N.A., (the “Servicer),” [Bold
letters in original.]:
as its lawful agent and attorney-in-fact in its name, place and stead to execute andacknowledge in writing or by facsimile stamp all documents customarily andreasonably necessary and appropriate for the tasks described in items (1) through(4) below; provided however, that the documents described below may only beexecuted and delivered by such Attorney-in-Fact if such documents are requiredor permitted under the terms of the related servicing agreements and no power isgranted hereunder to take any action that would be adverse to the interests ofHSBC Bank USA, National Association or any action which is not required orpermitted under the servicing or trust agreement. This Power of Attorney is beingissued in connection with the Servicer's responsibilities to service certainmortgage loans (the “Loans”) held by HSBC Bank USA, National Association asTrustee of various trust [sic., trusts]. These Loans are comprised of mortgages …
37 Opal V. Bate v. Wells Fargo Bank, N.A., Adv. Pro. No. 8:10-ap-01289-MGW, Memorandum Opinion on Preemption by National Bank Act of Florida Consumer Collection Practices Act, Michael G. Williamson, Bankruptcy Judge, 22 June 2011.
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and other forms of security instruments (collectively the “Security Instruments”)and the promissory notes (the “Notes”) they secure.
1. Demand, sue for, recover, collect and receive each and every sum of money,debt, account and interest (which now is, or hereafter shall become due andpayable) belonging to or claimed by HSBC Bank USA, National Association asTrustee of the trusts relating to the Loans, and to use or take any lawful means forrecovery by legal process or otherwise.
2. As HSBC Bank USA, National Association as Trustee of the trusts act anddeed, to transact business of any kind.... [Emphasis added.]
36. It appears from the face of these Official Records of Highlands County that Plaintiff
intended to “transact business” in this County through its agent38 regarding “various” trusts since
at least December 2006. The Trust's business included its agent's attempts to “collect” debt by
“any lawful means ... or otherwise.” The agent is instructed to transact business lawfully, but
neither the Trustee nor the Agent have followed the law as expressed in the Florida Statutes.
37. Although collecting money is not the only trust business conducted by Plaintiff, it can
hardly be questioned that Plaintiff's attempt to collect a debt for the trust is both “transacting
business” and “transacting trust business.”
38. FS Chapter 609 is entitled “Common-Law Declarations of Trust.” Section 609.02 of that
Chapter says that every trust “organized for the purpose of transacting business in this state ...
which intends to sell ... notes, bonds, mortgages, ... or other security of such [unincorporated]
association shall, prior to transacting any such business, file with the Department of State a true
and correct copy of the declaration of trust under which the [unincorporated] association
proposes to conduct its business....” It also says that the “Department of State, prior to the
issuance of the certificate by it [see § 609.03], shall collect from [the trust] a filing fee of
$350....”
39. If HSBC had not transacted any business in Florida, then HSBC would not have filed
three LPoAs and thought it necessary to hire the Firm to collect an alleged consumer debt and to,
further, hire the Firm to file a complaint in a Florida court.
40. Evidently, HSBC had come to the end of its power without obtaining its desired goal.
HSBC claims that Defendant owed it some money, and, since HSBC did not have the power it
38 In effect, the LPoA allows the agent to act as if it is the “trustee,” thus assuming the trustee'spowers. This transfer of power does not appear to be permissible pursuant to the PSA. Further, FS 709.2201(3)(e) says, in pertinent part, that “an agent may not … Exercise powers and authority granted to the principal as trustee.... Thus, the LPoAs may be void.
12
needed to collect said debt, HSBC hired the Firm to collect it, first, via written communication
and, when that failed, to seek the judicial power of the State of Florida—through its Circuit
Courts—to collect the consumer debt.
41. Upon information and belief, under a Florida law applied generally to all citizens,39 a
plaintiff must pay a filing fee with the Clerk of Court when a complaint is filed. Before filing a
complaint, there is an additional requirement for plaintiffs who are corporations (both foreign
and domestic): they must register with the State of Florida and file a report with Florida every
year thereafter.40 Persons who are not residents of Florida have one more requirement: they must
file a bond with the Clerk of Courts upon notice provided by a defendant, if they have not
already done so.41
42. Under the federal law, 12 C.F.R. § 7.4007 Deposit-Taking, the following state laws are
not “preempted”:
1) Contracts; 2) Torts; 3) Criminal Law; 4) Rights to collect debts; 5) Acquisition
and transfer of property; 6) Taxation; and others.
43. The National Bank Act of 1864 (NBA) gave national banks “powers as shall be necessary
to carry on the business of banking”42 The United States Supreme Court set forth the preemption
standard for national banks in Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25
(1996) which held that states have the power to regulate national banks to the extent state laws
do not “prevent or significantly interfere with the national bank's exercise of its powers.”
44. The States of our Union have established, individually their own state constitutions and,
together established the U.S. Constitution. Under these constitutions, a federal Supreme Court,
with the final word over all other court decision, has been set up with appellate and inferior
courts in each state with their own specific “judicial” powers under these constitutions and other
pertinent laws and rules. Neither the United States Congress nor the NBA give any judicial
power to national banks. If the national banks had judicial power, they would not have to go to
court to collect alleged debts.
39 FS 28.241(1). Payment of the fee may be deferred for indigents, see FS 28.241(2).40 FS § 607.1501(1)* and § 607.1622(1). A corporation pays a nominal registration fee and a
minuscule annual fee for the privileges of being able to transact business here and to access Florida Courts the same as residents. Relative to a corporation's financial resources, these minor once-a-year fees allow them to file hundreds or thousands of law suits each year. *No exemption is listed in § 607.1501(2) for “trust” activities.
45. When national banks, through the exercise of their banking powers, are unable to collect
a debt, they usually turn to the state courts praying for the court to exercise its judicial power to
help the national banks collect money. When doing this, the national banks rely upon state laws
affecting contracts, torts, rights to collect debts, and the acquisition and transfer of property.
46. In an often-successful attempt to save money, national banks will ignore state fees and,
intentionally fail to pay them.43 Their excuse is, often, that state laws are “preempted” by the
NBA and that state laws (requiring banks, trusts and corporations to pay certain fees) do not
apply to national banks. As long as nobody complains about this stingy and, sometimes,
unlawful behavior, the national banks will continue to save money while making billions of
dollars off the backs of humans who are kept in the dark about what the banks are doing.
47. It appears, from the discussion above, that Plaintiff, a national bank, is not immune from
paying the state fees and from registering with the State of Florida pursuant to the Florida
Statutes referenced in the table at paragraph 27 on page 9, above. The statutes in this table are
important because they affect the Plaintiff's authority to do business in Florida and its capacity,
or lack thereof, to sue in Florida's courts.
48. Upon information and belief, the Trust has not filed a “declaration of trust” with Florida;
has not obtained a “certificate” from Florida; and has not paid “a filing fee of $350.” FS § 609.04
says it is “Unlawful to transact business prior to compliance. No person [including a national
bank acting as a trustee] may transact or conduct any business,44 within this state, under any
declaration of trust, or like [unincorporated] association, without first complying with the
provisions and requirements of this chapter....” [Bold letters in original, underlining added.]
49. Plaintiff, HSBC—who is a foreign corporation, might argue that it is not “transacting
business” in Florida, or that the business it does “transact” is exempt under FS § 607.1501(2).
However, FS Chapter 607 is the “Florida Business Corporation Act” and it deals only with
“corporations.” “Corporation” is defined in section 607.01401(5) and “Foreign corporation is
defined in 607.01401(12). These sections say in pertinent part:
[T]he term: “Corporation” … means a corporation for profit, which is not aforeign corporation, incorporated under or subject to the provisions of this act.
“Foreign corporation” means a corporation for profit incorporated under lawsother than the laws of this state. [Underlining added.]
43 This stinginess led banks to create the Mortgage Electronic Registration System (MERS) to avoid paying fees to County Clerks every time a mortgage was transferred.
44 This section says “any business,” which includes more than just “trust business.”
14
50. Florida's Fourth District Court of Appeal explained that a “business trust” also known as
a “common law business trust” is described as “unincorporated” in 156 ALR 22 at 27:
… an unincorporated business organization created by an instrument bywhich property is to be held and managed by trustees for the benefit and profit ofsuch persons as may become the holders of transferable certificates evidencingthe beneficial interests in the trust estate.”45 [Underlining and emphasis added.]
51. The Fourth District Court stated that “the general rule seems to allow suit to be
maintained by the trustees of such a trust. … But, as a result of the decision in the Willey46 case,
Florida is often cited as an exception to the general rule.” Corcoran, at 689-690, see fn. 45. In
Florida, the Trust (when it exists), not the Trustee, is the proper and indispensable party.
52. The Fourth District Court said that when a trust has been “qualified in Florida pursuant to
Chapter 609, Florida Statutes”: Corcoran, at 690, see fn. 45.
“Logic dictates that a common law trust authorized to transact business in Floridais the real party in interest....”47
53. It seems reasonable that logic would, also, dictate that when a trust is not “qualified”
pursuant to Chapter 609, Florida Statutes, then that trust is not “authorized” to transact business
in Florida. When a trust is not authorized to do business in Florida, then it logically follows that
its trustee is not authorized, since the trustee's power to act is derived from the trust through its
declaration of trust. It is very important to note that failure to comply with Chapter 609 is no
trifle matter because it is “unlawful” and it is considered a “felony.” See FS 609.04 and 609.06.
54. The Corcoran Court went on to say, “As yet, no Florida case has held that the trustees of
a business trust can maintain suit on a note and mortgage payable to a trust, absent statutory
authorization in the state of its origin.”
55. There is a criminal penalty for violating FS Chapter 609. Section 609.06 says, in
pertinent part: “Any person who shall violate any of the provisions of this chapter shall be guilty
of a felony of the third degree....” Without a showing that Plaintiff has complied with FS Chapter
609, the Complaint bears witness that Plaintiff has committed and is committing a felony.
Plaintiff's attempts to collect an alleged consumer debt through its agent, the Firm, without first
45 Corcoran v. Brody, 347 So. 2d 689 (Fla. 4th DCA 1977).46 Willey v. W.J. Hoggson Corporation, 90 Fla. 343, 106 So. 408 (1925). "A trust is not
established by merely naming a person as `trustee.'"47 Corcoran Court quoting Tampa Properties, Inc. v. Great Am. Mortgage Investors, 333 So.
2D 480, at 481 (Fla. 2d DCA 1976).
15
complying with the relevant statutes, appear to be unlawful acts. The Court should not aid the
Plaintiff in the commission of any unlawful act.
56. On Wednesday, 27 March 2013, a “Final Summary Judgment of Mortgage Foreclosure”
(Final Judgment) was entered in Plaintiff's favor by Circuit Court Judge J. David Langford
who set the status of the action to “DISPOSED.” According to paragraph 3 of the Final
Judgment, my home was to be sold on 25 April 2013! The Court had arrived at its judgment
based upon the merits (the facts and the law) of the case as the Court had discerned them from
the pleadings and from the hearing. Even though Kitterman's arguments were wrong, the Court
relied upon them and the action was adjudicated upon the merits.
57. Regarding the legal doctrine of res judicata, the final judgment:
“is conclusive as to all matters which were or could have been raised....Accordingly, the decree in the ... foreclosure proceeding, from which no appealwas taken, would generally conclude all of the issues presented in that suit. ... Ifappellants felt this to have been error, they could have availed themselves ofproceedings to amend or appeal. Failing to do this, they will generally not beallowed to question that decree or to relitigate issues concluded by it.”48
58. Any debt, promissory note, mortgage and cause of action alleged by the Plaintiff in this
action was merged into the Final Summary Judgment on 27 March 2013, whereby they appear to
have perished. According to Florida's Third District Court of Appeal:
The Promissory Note and the Mortgage merged into the final judgment upon itsentry. "This occurs as a matter of well-settled Florida law. The mortgage ismerged into the judgment, is thereby extinguished, and `loses its identity.'" NackHoldings, LLC v. Kalb, 13 So.3d 92, 94 n. 2 (Fla. 3d DCA 2009) (quotingWhitehurst v. Camp, 699 So.2d 679, 682 (Fla. 1997)); Gilpen v. Bower, 152 Fla.733, 12 So.2d 884, 885 (1943) ("Although the debt secured by a mortgage existsindependently of the instrument[,] a debt reduced to a judgment does not have thispeculiarity as the former merges in the latter and loses its identity."); Diamond R.Fertilizer Co., Inc. v. Lake Packing P'ship, 743 So.2d 547, 548 (Fla. 5th DCA1999) ("[A] cause of action upon which an adjudication is predicated merges intothe judgment and ... consequently, the cause of action's independent existenceperishes upon entry of the judgment."); Vernon v. Serv. Trucking, Inc., 565 So.2d905, 906 (Fla. 5th DCA 1990) ("[A] debt reduced to final judgment merges intothe final judgment and loses its prejudgment identity.").49
59. I believed that the Court's final judgment was made in error and, pursuant to FRCP
1.530(b), I had ten (10) days to file a motion to rehear. The tenth (10th) day fell on Saturday, 6
48 Stadler v. Cherry Hill Developers, Inc., 150 So. 2d 468, at 471 (Fla. 2d DCA 1963).49 JPMorgan Chase Bank, NA v. Hernandez, 99 So. 3D 508, at 511-512 (Fla. 3d DCA 2011).
16
April 2013 and pursuant to FRCP 1.090(a) and FRJA 2.514(a)(1)(C), the last day to file a motion
to rehear appeared to have been 8 April 2013.
60. On that Monday, 8 April 2013, I filed my “Motion to Rehear and Vacate Final
Judgment.” Upon receiving its copy of the motion-to-rehear, Plaintiff had a second chance to
acknowledge that its initial complaint was missing the mandatory “verification” and Plaintiff had
a second chance to move the Court for leave to file an amended complaint with a verification at,
or prior to, the rehearing set for 18 April 2013.
61. On Thursday, 18 April 2013, a hearing was held on my motion to rehear and to vacate.
This hearing was recorded by a court reporter and the case status was set to “REOPEN.”
62. Another non-compliant attorney, Shilpini V. Burris,50 appeared telephonically for
Plaintiff and she, too, made a tactical decision to not move for leave to amend and, instead, she
argued that the verification “issue” should have been raised somewhere other than in response to
Plaintiff's motion for summary judgment. Further, Burris repeated Kitterman's June-effective-
date argument by stating that she would “rely on counsel's prior assertion at the [26 March 2013]
hearing.”51
63. Regarding the “verification” issue, Judge Langford said:
Well, this issue was raised at our hearing. It was raised at the hearing on summaryjudgment. And whenever Mr. Thornton raised this issue, this Court posed thequestion to [Kitterman] in regard to the issue he had raised. [Kitterman] informedthe Court that the effective date of this was in June and, therefore, there was noverification required. Mr. Thornton filed his motion for rehearing. When Ireviewed it, I had my staff attorney go and pull the case, and I read what JudgeAltenbernd said in this opinion. Judge Altenbernd's opinion is very clear, whichsays that in their opinion this became effective on February the 11th, 2010.52
Now, I don't know why [Kitterman] told me that it was in June, and I relied uponthat and granted the motion for summary judgment.
64. On Wednesday, 5 June 2013, the “Order Setting Aside Final Summary Judgment”
was filed in Defendant's favor. In this judgment, the Court did not retain any jurisdiction.
On the same day, this action, having been heard and finally decided upon the merits, had its case
STATUS set to “REOPEN CLOSED.”
65. To date, the docket lists the “STATUS” of this case as “REOPEN CLOSED.”
50 See paragraph 3, above re withdrawal and substitution. No notice of appearance was filed.51 See Transcript of 18 April 2013 rehearing at page 4, lines 15 – 23.52 See JP Morgan Chase Bank v. Jurney, 86 So. 3d 1182 (Fla. 1st DCA 2012).
17
66. As of 5 June 2013, the docket shows the action was CLOSED and, after that date: no
motion to “rehear” was filed under FRCP 1.530; no “notice of appeal” was filed; and no motion
for “relief from judgment” was filed under FRCP 1.540. While Plaintiff may have been able to
contest this order prior to 5 June 2014, it appears that Plaintiff no longer has any right to
contest it, attack it, ignore it or to amend it. Plaintiff has shown no authority that would allow it
to either amend its initial complaint or to have a trial after a final summary judgment hearing and
decision. It, also, appears that the Court has no jurisdiction to either alter the order or to grant
Plaintiff any relief from this order. Further, it appears that without the Plaintiff having shown
either its capacity-to-sue or its standing-to-sue, the Court has no subject matter jurisdiction to
grant any relief to Plaintiff.
67. Capacity is the right to be able to come into court. Standing is the right to receive relief in
a court of competent jurisdiction. The Second District Court of Appeal wrote this about
STANDING:
[T]he 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.53
68. The Complaint is contradictory as to both the capacity and standing of the Plaintiff. Its
first sentence says, “Plaintiff, HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE
FOR NOMURA HOME EQUITY LOAN TRUST, SERIES 2006-WF1 ASSET BACKED
PASS-THROUGH CERTIFICATES, sues Defendant(s)....” This sentence indicates that Plaintiff
is not the “real party in interest” and that Plaintiff, “HSBC Bank, USA, National Association,” is
suing on behalf of the implied real-party-in-interest, “NOMURA HOME EQUITY LOAN
TRUST, SERIES 2006-WF1 ASSET BACKED PASS-THROUGH CERTIFICATES.” This
name-change for the implied real-party-in-interest, occurred after final judgment on the merits
and in violation of Defendant's due process rights to notice and a meaningful opportunity to be
heard. This new name suggests that Plaintiff is representing “CERTIFICATES,” but that is just
plain silly. How can anyone represent certificates54??? It should be noted that no document is
53 McLean v. JP Morgan Chase Bank Nat. Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012).54 Pursuant to papers filed at the SEC, no “paper” certificates are issued. “Except as described
below, no person acquiring a book-entry security will be entitled to receive a physical certificate representing such security. Unless and until physical securities are issued, it is anticipated that the only “securityholder” with respect to a book-entry security will be Cede & Co., as nominee of DTC. Beneficial owners are only permitted to exercise their rights indirectly through participants and DTC.” --Prospectus Supplement, dated 28 June 2006, for Nomura Home Equity Loan, Inc., Home Equity Loan Trust Series, 2006-WFI at page 64
18
either alleged, identified or attached to the Complaint authorizing Plaintiff to either initiate or
maintain this foreclosure action on behalf of any person, any company, any corporation, any
trust, any investors, any certificateholders, or any “certificates.”55
69. This alleged new name for the substituted, or corrected, Plaintiff does not match the name
of the alleged “creditor” on the exhibit attached to the Complaint: a letter from the Firm dated 15
February 2010 which appears to be a notice of acceleration (NoA). This difference in names is a
repugnance which, by itself, is sufficient cause to dismiss the action.
70. The NoA is dated 15 February 2010, just eleven (11) days before Plaintiff filed its initial
complaint on 26 February 2010. This failure of Plaintiff to give thirty (30) days' written notice
prior to acceleration is a failure to meet a “condition precedent” as expressed in the alleged
mortgage at sections 15, 18 and 22. The filing of this action is, also, a failure to meet another
“condition precedent” as expressed at section 20 of said mortgage, for failing to give proper
notice prior to filing a “judicial action.” Filing the amended complaint has not cured these
failures and it appears that no amendment can fix them, thus, whether or not the order setting
trial is not stricken, the action should be dismissed with prejudice.
71. Florida's Second District Court of Appeal reversed a final summary judgment for the
lender because of its failure to satisfy conditions precedent. The mortgage in that case contained
a paragraph (identical to paragraph 22 in the alleged mortgage herein) which required the lender
to furnish notice of acceleration 30 days before filing an action to foreclose on the mortgage.
Thus, the plaintiff was not entitled to judgment as a matter of law.56 Plaintiff, likewise, is not
entitled to judgment in this action as a matter of law.
72. Neither of the two Trust names alleged in this action appear to be the full legal name of
an actual trust in any state of the United States, at least from my searches. The trust's FIRST
alleged name from the filing of the initial complaint in February 2010 until November 2013 (a
period of 3 ¾ years) was:
“NHEL HOME EQUITY LOAN TRUST, SERIES 2006-WF1.”
73. This FIRST alleged name of the Trust is used on the Final Judgment!
74. The trust's SECOND alleged name, found in the Complaint on 1 November 2013 was:
roughly. “DTC” is the Depository Trust Company.55 See FS 702.015(3) re suing on behalf of a Person Entitled To Enforce the note (a “PETE”).56 Konsulian v. Busey Bank, N.A., __ So.3d __, Fla. L. Weekly D1164 (Fla. 2d DCA 6/1/11)
19
“NOMURA HOME EQUITY LOAN TRUST, SERIES 2006-WF1 ASSET BACKED PASS-THROUGH CERTIFICATES.”
75. While I have found no trust with exactly the same name as either of the two trusts alleged
in the complaints of this action, I did find a name of a trust that is similar, but not the same as
either of those two above. This similar name, according to records on file with the SEC, is the
“Exact name of the issuing entity as specified in its charter”57:
“NOMURA HOME EQUITY LOAN, INC., HOME EQUITY LOAN TRUST, SERIES 2006-WF1”
76. It appears that the Plaintiff and its attorneys do not know the name of the Plaintiff. They
filed a purported amended complaint in which they sought to “substitute” the Plaintiff or to
“correct” the Plaintiff's name after Final Judgment and after almost four (4) years of litigation.
Surprisingly, after they sought this change, the last few papers filed by Plaintiff do not use the
new, SECOND name as stated in the Complaint! Instead, they go back to using the FIRST name.
Not only do they not know the Plaintiff's name, they do not know the legal name of the Trust!
77. The Complaint says, at paragraph 6, that, “HSBC BANK USA, NATIONAL
ASSOCIATION AS TRUSTEE FOR NOMURA HOME EQUITY LOAN TRUST, SERIES
2006-WF1 ASSET BACKED PASS-THROUGH CERTIFICATES, is the real party in
interest....” This ambiguous allegation is contradictory to Plaintiff's two (2) statements filed in
this action which say that Plaintiff “has not alleged any ownership of the Note or Mortgage.”58
Either the Plaintiff is a “trustee” representing the real-party-in-interest (the Trust), or the Plaintiff
is the real-party-in-interest. With regard to capacity and standing, Plaintiff cannot be both. Nor
can Plaintiff be both incorporated and unincorporated. This uncertainty, or ambiguity, regarding
Plaintiff's capacity and standing is a repugnance which, by itself, is sufficient cause to dismiss
the action.
78. The Complaint fails to allege that Plaintiff owns either the note or the mortgage. In
paragraph 8, it alleges a fact, that “Plaintiff is the holder of that Note” and then it makes an
arbitrary conclusion of law that Plaintiff is “therefore entitled to enforce the Note.” Whether
Plaintiff is, indeed, entitled to enforce the note and whether it has both the capacity and the
57 SEC Form 10-D filed as of 12 December 2006, CIK 0001365821, SEC Film Number 061270439, SEC File Number 333-132109-02.
58 See ¶ 8 on page 3 of my “Verified Cross-Motion for Summary Judgment and Motion for Judicial Notice” and “Exhibit C” attached thereto, filed 20 March 2013.
20
standing to bring a suit to foreclose a mortgage, are judicial decisions for the Court to make.
Merely holding the note, now, is not good enough to enforce either the note or the mortgage.
This is, especially, true when the Complaint is not clear on: 1) who owns the documents; 2) what
the Plaintiff's name is; 3) what the Trust's legal name is; 4) what the capacity of the Plaintiff is;
and 5) what the standing of the Plaintiff is based upon.
79. Such ambiguity and contradiction make the Complaint repugnant and insufficient to state
a cause of action. Logically, a person is either the “real party in interest” or they are not. Plaintiff
has failed to show its capacity or its standing and it has failed to show, by supporting documents
attached to the Compliant, that it is either a real-party-in-interest or that it is authorized to sue on
someone else's behalf.
80. Pursuant to FRCP 1.530(b), the deadline to file a motion for rehearing (if such a motion,
in this particular case, is allowed at all) was 12 days later, on Monday, 17 June 2013, because the
10th day fell on Saturday, 15 June 2013.
81. Pursuant to FRCP 1.530(g), the deadline to file a motion to “alter or amend the
judgment” was, also, 12 days later, on 17 June 2013.
82. The deadline to file a notice of appeal appears to have been thirty (30) days later on
Friday, 5 July 2013.
83. Pursuant to FRCP 1.540(b), the deadline to file a motion for “relief from judgment” was
one year later on Thursday, 5 June 2014 for relief based upon “(1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.”
This rule says, in pertinent part:
[T]he procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.
84. The only two options left in rule 1.540(b) are: “(4) that the judgment or decree is void; or
(5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or
decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable
that the judgment or decree should have prospective application.” To date, Plaintiff has not
sought relief for either of these two reasons, nor is Plaintiff likely to do so.
21
85. Plaintiff, to date, has failed to show that the Court has any jurisdiction to either re-open
this action or to make any changes to the final order filed on 5 June 2013, when this action
was CLOSED over one year ago.
86. Rather than follow the rules, Plaintiff has attempted to ignore and to circumvent the rules
through sneaky, ex parte communications with the Court, and by filing papers that only have the
color of law.
87. On Friday, 25 October 2013, over four months (147 days) after the case was CLOSED on
5 June 2013, a second purported “Notice of Change of Attorney” (Notice-2) was filed regarding
a purported new attorney for Plaintiff, one Amy K. Recla (“Recla”). Recla appears to be another
non-compliant attorney, because there was no motion and no order allowing a withdrawal of Mr.
Kennelly, nor was there a motion or an order allowing a substitution of attorney. Thus, Notice-2
was also performed coram non judice, which makes it a nullity, too.
88. The record shows that no $50.00 “reopen” filing fee was paid after 5 June 2013.
89. FS 28.241(1) says, in pertinent part:
Reopen fees are due at the time a party files a pleading to reopen a proceeding ifat least 90 days have elapsed since the filing of a final order or final judgmentwith the clerk.
90. On Wednesday, 30 October 2013, from the certificate of service, it appears that Plaintiff
served Defendant (by mail) a copy of its tardy and improper “Motion for Leave to File Amended
Mortgage Foreclosure Complaint” (“Motion-for-Leave”) along with a copy of its proposed
amended complaint which had a different name for the Plaintiff and which was purportedly
“verified” by a stranger to this action. The proposed complaint was, also, missing a notice-of-
default (NoD) letter. A copy of an alleged NoD letter was attached to the initial complaint.59
Without this NoD, the Complaint fails to state a cause of action and it should be dismissed.
91. Prior to November 2013, Plaintiff had been up to bat three (3) times with hearings on its
motions for summary judgment. It missed the ball on the first two attempts and then it hit what
looked like a home run on the third attempt, but it was out of bounds and it was declared a foul
ball. The Court granted final summary judgment, but it was set aside after the rehearing of 18
April 2013. Thus, the Plaintiff had three “strikes” prior to June 2013. Plaintiff's failure to hit the
ball (obtain a favorable judgment on its motion for summary judgment) at the hearing held on 3
June 2014, means that Plaintiff has been “at bat four times.”
59 See “Exhibit E” attached to my “Verified Response ...” filed 30 May 2014.
22
92. Florida's Third District Court of Appeal made a similar baseball reference when it said:
'[T]hree strikes are out' in a baseball game; [plaintiff] has been at bat four times.Under the most liberal construction of our modern rules, we hold that ampleopportunity has been proffered to appellant."60
93. The Third District Court also said:
“[I]t has been held that '[g]enerally three ineffective attempts to state the samecause of action ... and the 'liberality in permitting amendments decreases as theaction progresses....' [Citations omitted.]
94. Florida's Fifth District Court of Appeal agrees that, generally, three is “enough”:
Generally three ineffective attempts to state the same cause of action... areenough." ... The case has reached "a point in litigation when defendants areentitled to be relieved from the time, effort, energy, and expense of defendingthemselves against seemingly vexatious claims."61 [Citations omitted.]
95. On Friday, 1 November 2013, the docket shows Plaintiff filed its Motion-for-Leave. On
the same day—before Defendant had received a copy of the motion, it was ostensibly granted by
the order of Circuit Court Judge Peter F. Estrada. This is strange for two reasons: 1) the $50
reopen fee was not paid; and 2) it appears on the docket, that Judge Estrada was not “assigned”
to this case until 60 days (two months) later on Tuesday, 31 December 2013! Judge Estrada's
participation in this action appears to be non-compliant right from the start.
96. Judge Estrada began his involvement in this action when he improperly considered four
(4) of Plaintiff's papers62 and granted the Motion-for-Leave BEFORE Defendant even knew
about these papers! This appears to be four (4) violations of Defendant's due process rights to
notice and a meaningful opportunity to be heard.
97. On 31 December 2013, I filed a motion to disqualify Judge Estrada with the Clerk of
Court. My motion was later denied because it was “never served on the Court,” and Judge
Estrada said it was “legally insufficient.”63
98. While the action was reopened—prior to 5 June 2013—Plaintiff failed to move the Court
for leave to amend its initial complaint, in spite of the fact that it had at least two (2) chances to
60 Alvarez v. DeAguirre, 395 So. 2D 213, at 217 (Fla. 3d DCA. 1981).61 Walters v. Ocean Gate Phase I Condominium, 925 So. 2D 440, at 443 (Fla. 5th DCA 2006).62 The four papers considered by Judge Estrada, ex-parte on 11 November 2013: 1) non-
compliant Certification of Possession...; 2) tardy Motion for Leave to Amend; 3) proposed “Amended” Complaint; and a letter from Plaintiff telling the Judge that Plaintiff was not asking for a hearing (See Transcript of 2 May 2014 rehearing at page 5, lines 11 – 12).
63 See Transcript of 2 May 2014 rehearing at page 13, lines 9 – 15.
23
do so. Plaintiff is bound by its own pleadings and its own tactical decisions.64 Now—four (4)
years after filing its initial complaint, after the 26 March 2013 summary judgment hearing, after
the 27 March 2013 final summary judgment, after the 18 April 2013 rehearing, after the 5 June
2013 order setting aside final summary judgment, after the time has passed for altering or
appealing the 5 June 2013 order—the Plaintiff and the Court have set a trial date based upon
apparently void orders of Judge Estrada allowing Plaintiff to amend its pleading and to have a
trial!
99. The fact that this action is in its fifth (5th) year is an embarrassment to the Plaintiff, the
Firm and to the Court, but that fact does not give any justification to ignore the established rules
and to trample upon or to deny Defendant's rights!
100. Contrary to Judge Estrada's purported order granting Plaintiff leave to amend its initial
complaint, an “amendment after judgment is not permitted.”65 Florida's Fourth District Court of
Appeal has written that an order permitting the filing of an amended pleading “after final
judgment was an abuse of discretion.”66 Judge Estrada's apparent abuse of discretion in granting
leave to amend, after judgment, is prejudicial to me. Plaintiff should have either sought relief
from judgment according to the rules stated above, or filed a new action and verified a new
complaint. Instead, Plaintiff attempted to circumvent the rules by seeking to amend its initial
complaint after final judgment, and by violating my due process rights to notice and an
opportunity to be heard. Not only that, but I have a right to the benefit of the order in my favor
which has not been challenged in a timely or appropriate manner.
101. Florida's Second District Court of Appeals said that defendants have rights, too:
“On the one hand, … 'The chief concern of the courts should not be resolution forthe sake of finality only, but it should be to render justice based upon the merits ofthe action in a timely, thoughtful manner.' On the other hand, ... the defendants'concerns must also be considered: The defendants' interests must be protectedand should be of equal concern to our courts as are the interests of those who, bypaying a filing fee, become plaintiffs and have the power to have these defendantsbrought into court. It is a reality that being sued is costly to the party sued inmoney, emotion, time, and many other tangible and intangible ways. This is trueeven when the suit is totally meritless.”
102. The Florida Supreme Court's Administrative Order No. AOSC14-20, In Re: Trial Court
Case-Event Definitional Framework, says, in pertinent part:
64 Fernandez v. Fernandez, 648 So. 2D 712, at 713 (Fla. Sup. Ct. 1995).65 Trawick, Fla. Prac. And Proc. § 14:3 Time (2010 ed.) at page 251.66 Riverside Towers, Inc. v. Riverside Dev. Corp., 310 So.2d 44, at 44-45 (Fla. 4th DCA. 1975).
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Closed case: A case that has had all issues raised by and subsequent to the filing event resolved and no further action of the court is required.
103. Plaintiff filed its motion for summary judgment and pushed all the legal (but mistaken)
reasons it thought would sustain a decision in its favor at the April 2013 hearing. Here's what
Kitterman said (dates are added in brackets [ ] for reference):
[A]t the summary judgment hearing [on 26 March 2013], I used my knowledge ofthe case law and personal judgment when arguing against Mr. Thornton'sallegations. The Court heard argument from both sides and entered judgment [forPlaintiff] based thereon. Mr. Thornton then exercised his rights under the FloridaRules of Civil Procedure, filed a motion for rehearing timely, attached or citedpertinent case law. The Court heard the motion for rehearing [on 18 April 2013],reviewed the case law, and vacated the final summary judgment [on 5 June 2013].67
104. Plaintiff prevailed at the summary judgment hearing and got a final judgment in its favor,
in part, based upon misrepresentations made by Kitterman. After the hearing, Defendant
followed the rules and asked for a rehearing on the ground that Kitterman had mis-informed the
Court. Had I not asked for the rehearing by 8 April 2013, the Court would have lost jurisdiction
to rehear the decision. However, a rehearing was granted and the final judgment was set aside.
Plaintiff, then, had an opportunity to challenge the judgment, but failed to do so. Plaintiff had a
chance to appeal the Court's decision by 5 July 2013, but failed to do so. From July 2013 until 5
June 2014, Plaintiff had an opportunity to challenge the judgment under FRCP 1.540, but failed
to do so. Now—one year after the judgment was made and the case was closed—The Court
ignores the rules, violates my due process rights and sets a trial date without following FRCP
1.440 and without a pre-trial conference to narrow the issues and to identify witnesses.
105. As stated earlier, this was the FOURTH (4th) hearing on Plaintiff's motion for summary
judgment which was, originally, served on 23 April 2010.
II. THE TRIAL DATE WAS IMPROPERLY SET AND THE ORDERSETTING TRIAL DATE SHOULD BE STRICKEN
106. Ignoring the fact that the case has been decided on the merits. Judge Estrada's ex-parte
order of 1 November 2013, granting Plaintiff leave to amend its initial complaint after final
summary judgment, not only violated my due process rights to notice and an opportunity to be
heard, but it failed to grant any time for me to file an ANSWER to the amended complaint. This
67 See Transcript of 2 May 2014 rehearing at page 14, lines 15 – 23.
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appears to be another due-process violation, especially when the Court and the Plaintiff want to
rush to a trial which appears to be beyond this Court's jurisdiction.
107. No “default” against me has been entered in this action. The action has already been
adjudicated upon the merits, thus, there should be no trial at all.
108. No answer has been filed in response to the granting of leave to file the amended
complaint.
109. On Tuesday, 3 June 2014, a “five-minute” hearing was to be held on Plaintiff's fourth
(4th) non-compliant motion for summary judgment. However, no discussion about any noticed
motion was heard. Instead, the Plaintiff's counsel requested a trial date68 which the Court
proceeded to set over Defendant's oral objection and in spite of pending motions and the fact that
no answer has been filed in response to the amended complaint.
110. The record shows that Plaintiff has used the same exact “motion for summary judgment”
(whose date of service is 23 April 2010) not twice, but four times! To me, this looks like a
violation of my due-process right to be protected from res judicata and “double jeopardy.”
Article I, section 9 of our Florida Constitution says, in pertinent part:
Due process—No person shall be deprived of … property without due process of law, or be twice put in jeopardy for the same offense....”
111. A five-minute hearing was set for Tuesday, 3 June 2014 on Bared's photo-copied non-
compliant 23 April 2010 motion for summary judgment. The non-compliant attorney, Amy
Recla, appeared via telephone. A court reporter was present and a transcript was made. The
hearing lasted from 9:08 A.M. to 9:12 A.M.
112. The first person to speak was Judge Estrada, who said:
Ms. Recla, before we begin, the defendant in this matter has filed a motion todisqualify on 5/23/14. I am still preparing an order on that matter. Do you believeyou can proceed on your motion for summary judgment at this time?69
113. Judge Estrada had been served 11 days prior to the hearing, and by his own admission, he
did not follow the spirit of the law, to wit: FRJA 2.330(f) and (j) which say that the judge is to
rule “immediately” as to whether the motion is legally sufficient or not, but no later that 30 days
68 See Transcript of 3 June 2014 hearing at page 3, lines 13 -17 and page 4, lines 14 – 15. The quickness and the ease in which the trial date was set, makes it seem to me like the Court and Recla had a previous ex-parte conversation regarding the setting of a trial date instead ofhaving a hearing on the motion for summary judgment. If she thought the motion was good and true, why not go for the win on 3 June? Why put it off two months???
69 See Transcript of 3 June 2014, page 3, lines 3 – 8.
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after service. Waiting until the hearing on summary judgment to ask the non-compliant attorney
for her belief does not appear to be proper. While he had 30 days to make a decision, it does not
seem proper for him to make any other decisions prior to making a decision on the motion to
disqualify.
114. Recla replied that she did not “believe that the motion is legally sufficient.” Id. p. 3, lines
16 – 17. To her credit, Recla did mention the possibility of continuing the summary judgment
hearing, however, she—cunningly and improperly—suggested that the Court “set this for trial
pending the entry of the order.” Id. p. 3, lines 13 – 16.
115. The Court expressed his preference when he said:
I would prefer for the Court to complete its order, which it's working on, and I'llgive you a reset on this motion for summary judgment. Id. p. 3, lines 18 – 21.
116. Then the Court told me:
Since you have now personally served me on this one, I will prepare an orderwhether or not I'm granting it or not, but I'm going to go ahead and give anothermotion for summary judgment date, so that way whatever happens this matterwill continue to be heard by the Court. Id. p. 4, lines 4 – 9.
117. Recla spoke next, and out of the blue, she made a request that took me by surprise: “I
would prefer if we just go ahead and get a trial date.” Id. p. 4, lines 14 – 15. This request was
made without any notice and without the Court having had any discussion about the SUMMARY
JUDGMENT HEARING for which notice had been given and for which we were all appearing
before Judge Estrada at that moment.
118. Judge Estrada asked me if I had “any objection to a trial date?” Id. p. 4, lines 16 – 17. I
replied “Yes, I do have an objection to a trial date until the motions are settled, Your Honor.”
119. Previously, at the 2 May 2014 hearing, Judge Estrada expressed his intention that the
parties get together and work out a date to settle any pending motions. The notice-of-hearing for
3 June 2014 did not mention my “cross-motion for summary judgment” and I was unable to
coordinate any other date with opposing counsel prior to the June hearing.
120. Plaintiff's notice for the 3 June 2014 summary judgment hearing said nothing about
setting a trial date. The Second District Court of Appeal has written:
To grant unrequested relief is an abuse of discretion and reversible error. ... Additionally, a court should not grant such relief absent proper notice to the parties.70
70 Worthington v. Worthington, Fla. 2d DCA, October 30, 2013, Case No. 2D12-1361.
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121. FRCP 1.440. SETTING ACTION FOR TRIAL says, in pertinent part:
(a) When at Issue. An action is at issue after any motions directed to the lastpleading served have been disposed of or, if no such motions are served, 20 daysafter service of the last pleading.
122. As noted earlier, I have not filed an answer to the amended complaint.
123. It has been, and still is, my position that all orders issued by Judge Estrada in this action,
after 31 October 2013, are void for violations of my due process rights, for failure to follow the
essential requirements of the law, for res judicata, and for lack of procedural and subject matter
jurisdiction.
124. Florida's First District Court of Appeal opined:
"A notice for trial is properly filed when the action is ready for trial." Kubera v. Fisher, 483 So.2d 836 (Fla. 2d DCA 1986). Rule 1.440 is very clear as to when the action is ready for trial, or is "at issue."
[F]ailure to conform with rule 1.440 is reversible error.71
125. Florida's Third District Court of Appeal said: “[A] notice of or motion for trial filed at a
time when the case is not at issue, as here, is a nullity....”72
126. As for the Florida Supreme Court's thoughts on when the case is “at issue”: “[I]t was
clearly error to determine the cause was at issue before ... an answer had been filed....”73
127. Addressing FRCP 1.440, the Second District Court of Appeal said:
The rule is designed to safeguard the parties' right to procedural due process.Noncompliance with the rule may violate a party's due process rights. Thus strictcompliance with the rule is mandatory.74 [Citations omitted, underlining added.]
128. It should be noted that my answer to the initial complaint was filed on Thursday, 11
March 2010. I filed a motion for leave to amend my answer on Tuesday, 22 March 2011, which
was heard by the Court and was granted on Thursday, 26 May 2011, over three (3) years ago.
129. Forget for a moment, that the final judgment in this action was set aside by the order of 5
June 2013 which, itself, has become final, un-appealable and un-alterable. Forget, also, that the
orders granted by Judge Estrada may all be null and void for the reasons mentioned above. Now,
for the sake of argument, let's say that the 1 November 2013 order granting leave-to-amend was
71 Bennett v. Continental Chemicals, Inc., 492 So. 2d 724, at 726 and 728 (Fla. 1st DCA 1986).72 Alech v. General Ins. Co., 491 So. 2d 337, at 338 (Fla. 3d DCA 1986).73 Rountree v. Rountree, 72 So. 2d 794, at 795 (Fla. Sup. Ct. 1954).74 Brown v. Reynolds, 872 So. 2D 290, at 297 (Fla. 2d DCA 2004).
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valid. It, still, did not grant any leave to Defendant or state a deadline for him to file an answer to
the brand new complaint. The Court's failure to make a specific grant of leave with a due date to
file an answer—and—the Court's improper setting of a trial date, appear to be two more
violations of my due process rights!
130. As the record shows, Plaintiff has had four (4) summary judgment hearings in as many
years without prevailing! This trial would make it Plaintiff's fifth (5th) time at bat!
131. If Plaintiff thought it had such a good complaint, why didn't it just continue with the
summary judgment hearing of 3 June 2014??? Why push it off until later??? If the Court could
not hear the summary judgment motion, then the Court could not set a trial date, either. The
Court should have canceled the hearing until after he made his decision about my motion to
disqualify. Plaintiff, evidently, did not believe it could win that hearing, and it, also evidently,
did not want to have a hearing on my cross-motion for summary judgment!75 By skipping the
hearing on Plaintiff's summary judgment motion and by improperly setting a trial date, Plaintiff's
attorneys were able to avoid the embarrassment of having to explain a photo-copied, non-
compliant motion from an attorney who no longer worked for the Firm and whose certificate-of-
service was bogus—and the attorneys got more time to attempt to come up with something
better, plus a fifth time at bat. However, there are many things wrong with the Complaint that
cannot be fixed.
132. For all the foregoing reasons, the “Order Setting Non-Jury Trial” filed on Thursday, 5
June 2014, should be stricken, or vacated and set aside.
III. TRUSTS ARE CREATED FOR THE PURPOSE OF SECURITIZATION
133. In a normal home-buying transaction, a bank originates a loan when a human being buys
a home and signs a promissory note for $250,00076 along with a mortgage which, usually,
follows the note. The human's note is a promise to pay a certain sum of money within a certain
period of time. The mortgage is a form of security which will allow the noteholder to sell the
home and get back the money it loaned out, if the human defaults on the note. At ten percent
(10%) interest, the human's payments on the note will be $25,000 per year for 30 years.
75 My “cross-motion” cites flaws in the initial complaint that make any amendment futile.76 Round figures will be used for convenience and ease of understanding.
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134. Notes usually say that payments will be applied to any late fees, then to interest, and then
to the unpaid principal balance. If the original noteholder (the bank) sells the note, the new
noteholder will continue to collect the $25,000 per year and apply payments in the same manner.
135. Things are different under securitization. Under securitization, the bank originates 1,000
loans and places the notes and mortgages into a “pool of assets” to be held by another bank as
trustee for a trust created by a “pooling and servicing agreement” or PSA. The trust, in exchange
for the pool of assets, will issue “certificates” (aka “securities”) that will be sold to investors
without recourse and without any guarantee from any government agency or otherwise.
136. Investors do not purchase any promissory notes that are in the pool of assets. Instead,
each investor will give the trust a sum of money in exchange for the trust's conditional promise
to pay a percentage of that sum to the investor each month.
137. For example, a Pension Fund pays $500,000 for a certificate that will pay back five
percent (5%), or $25,000, per year to the Pension Fund. This $500,000 cash will completely pay
off the human's $250,000 note and put $250,000 instant profit into the trust. While the trust just
received $500,000, it is the human—who knows nothing about the trust or the investor, not the
trust—who will be paying $25,000 per year to the Pension Fund.77 Because the human's note is
now paid in full, his/her monthly payments are no longer going to pay off either interest or
principal on the note and the note is contractually broken while the human remains ignorant.
IV. IN PERSONAM AND SUBJECT MATTER JURISDICTION
138. The Florida Supreme Court has held that a court is “without jurisdiction” where there are
“no actual adversaries as to a present, actual dispute or controversy.”78 A plaintiff who has no
damages, has no cause of action.79 A party's capacity-to-sue is a threshold issue, and without it, a
would-be plaintiff is not even allowed to enter the door of the courthouse. If the Court has no
jurisdiction over two adversaries, then there is no controversy and the Court has no subject
matter jurisdiction.
77 If all 360 payments are made, the human will have paid $750,000 for a $250,000 note, the trust will have received its $250,000 back plus it will have made $250,000 instant profit, andthe Pension Fund will make $250,000 profit over the term of the certificate/security.
79 Cardona v. Benton Exp., Inc., 804 So. 2d 505, at 507 (Fla. 3d DCA 2001).
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139. “Where there is no jurisdiction over the subject matter, there is ... no discretion to ignore
that lack of jurisdiction.”80 Without a proper plaintiff and a judicial controversy, a court has no
subject matter jurisdiction. This Court must either establish jurisdiction by admissible evidence
or put an end to any further proceedings herein, immediately. The matter would be coram non
judice if the Court proceeds otherwise.
140. The Court cannot set a trial and cannot proceed any further when the Court has no
procedural jurisdiction, no jurisdiction of the case, and no subject matter jurisdiction of the
action. The Court's jurisdiction over the Plaintiff and the subject matter has yet to be invoked by
a sufficient pleading from the Plaintiff.
141. The Complaint fails to comply with FRCP 1.110(b) which says that a complaint shall
contain “a short and plain statement of the grounds upon which the court‘s jurisdiction depends.”
The Complaint only alleges that the real property, upon which Plaintiff seeks to “foreclose a
mortgage,” is “located in HIGHLANDS County, Florida, and by reason thereof the venue for
this matter is in HIGHLANDS County, Florida.” [Emphasis added.] “Venue” refers only to a
court's “territorial jurisdiction.” Picking the correct “place” to have a trial does nothing to
establish capacity or standing and it does not invoke the Court's subject matter jurisdiction.
142. “Courts occasionally speak of subject matter jurisdiction when applying it to acquisition
of jurisdiction over a thing [i.e., real property] within the territorial jurisdiction of the court. This
is inaccurate. In those cases the court means it has acquired jurisdiction over the parties that
enables it to exercise its territorial jurisdiction over the thing.”81 It appears that when a court fails
to obtain jurisdiction over either the plaintiff or the defendant, then the court fails to obtain
jurisdiction over the subject property.
143. In concert with rule 1.110(b), FRCP 1.120(a) also addresses “jurisdiction” when it says,
in pertinent part:
It is ... necessary to aver the capacity of a party to sue or be sued, the authority ofa party to sue or be sued in a representative capacity, or the legal existence of anorganized association of persons that is made a party, ... to the extent required toshow the jurisdiction of the court.
80 Joyce v. United States, 474 F.2d 215, at 219 (3d Cir. 1973).81 Trawick, Fla. Prac. and Proc. § 3:3 Objections to jurisdiction (2010 ed.) at page 35.
31
144. "`Jurisdiction' means the power of a court to hear and determine a cause, which power is
conferred by a constitution or by statute, or both."82 “The trial court lacks jurisdiction to
determine matters which are not the subject of appropriate pleadings and notice.”83
145. To date, Plaintiff has failed to show that this Court has jurisdiction over the Trust, the
Trustee or the subject matter of the action.
146. It seems that four requisites must be met before the Court has the power to grant any
relief requested by a plaintiff: 1) a plaintiff who, itself, has capacity (the right to come into
court) and standing (the right to relief from the damage caused by Defendant), a.k.a the “real
party in interest”--or who has shown authority from the real party in interest to act on that party's
behalf; 2) a Defendant who has damaged Plaintiff and who has been brought under the court's
jurisdiction by proper service of process under the rules; 3) a competent witness who can
authenticate admissible evidence through testimony in open court and submit to cross-
examination by the Defendant; and 4) a justiciable controversy (established by Constitution,
statute or both) between the parties that gives the court the power to decide the interests, rights
and obligations of the parties. Subject matter jurisdiction must be established at the initiation of
the action and continue to be maintained throughout the proceedings. It cannot be presumed,
consented to, nor waived by the parties.84
147. When any one of these four (4) jurisdictional items are missing, the Court has no power
to grant relief to the Plaintiff. In other words, the court has no subject matter jurisdiction to
proceed and any judgment, other than dismissal of the action, is coram non judice and void.
148. It appears that this Court does not have personal (in personam) jurisdiction over five (5)
persons directly related to papers filed in this action: 1) the Trust; 2) the Trustee; 3) Turina; 4)
Wells Fargo; and 5) Smith.
149. As already shown above, Defendant contends the Court has no in personam jurisdiction
over the purported Trust or its purported Trustee. Defendant moves the Court to determine the
full legal name of the purported Trust and whether, and on what authority, the Court has any in
personam jurisdiction over said Trust.
150. Defendant moves the Court to determine the full legal name of the purported Trustee and
whether, and on what authority, the Court has any in personam jurisdiction over said Trustee.
82 Penn v. Com., 528 S.E.2d 179, 32 Va. App. 422 (Ct. App. 2000).83 Dept. Of Environ. Reg. V. Montco Research, 489 So. 2D 771, at 773 (Fla. 5th DCA 1986).84 See “subject matter jurisdiction” discussion on pages 423 and 424 in Fla. Power & Light
151. The purported affiant, Vladimir Turina (“Turina”) who is not a party to this action and
whose signature appears on the purported “Certification of Possession of Original Note
Previously Filed with the Court” (the “Certification”) under penalties of perjury on 3 September
2013, and who is an apparent non-attorney employee of the Firm. The Certification does not
appear on the Clerk's online docket. As shown in my “Motion To Strike Plaintiff's Purported
'Certification of Possession of Original Note'...” the Certification was insufficient as to form and
substance. In addition to my reasons for striking the Certification found in my motion to strike, I
must point out that while the Certification is an attempt to appear to be in compliance with FS
702.015(4), the Plaintiff has not made any attempt at all to comply with FS 702.015(3) which
says, in pertinent part:
If a plaintiff has been delegated the authority to institute a mortgage foreclosureaction on behalf of the person entitled to enforce the note, the complaint shalldescribe the authority of the plaintiff and identify, with specificity, the documentthat grants the plaintiff the authority to act on behalf of the person entitled toenforce the note.
152. Because Turina is not a party to this action and because he is not an attorney, Defendant
moves the Court to determine whether, and on what authority, the Court has any in personam
jurisdiction over Turina.
153. The purported contractual servicer, “Wells Fargo Bank, NA” (“Wells Fargo”) is named
on the fourth page of the Complaint, but it is not a party to this action. Defendant moves the
Court to determine whether, and on what authority, the Court has any in personam jurisdiction
over Wells Fargo.
154. The purported affiant, Lemar A. Smith (“Smith”), is not a party to this action. He appears
to be a non-attorney who is employed by a non-party, Wells Fargo, in Raleigh, North Carolina.
Smith purportedly verified the Complaint under penalty of perjury on Tuesday, 22 October 2013.
Defendant moves the Court to determine whether, and on what authority, the Court has any in
personam jurisdiction over Smith.
155. The Trust, if it were properly authorized, would be the real party in interest to this action.
A “common law trust authorized to transact business in Florida is the real party in interest.”85 It
appears that the Trustee must register the Trust before transacting any business in Florida.
Registration applies even to “national banks”:
85 Tampa Properties, Inc. v. Great Am. Mortgage Investors, 333 So. 2d 480, at 481 (Fla. 2d DCA 1976).
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The [National Bank] Act and OCC regulations do not "preempt the field" ofbanking in its entirety. "Federally chartered banks are subject to state laws ofgeneral application in their daily business to the extent such laws do not conflictwith the letter or the general purposes of the [Act]." Watters, 550 U.S. 1, at 11,127 S.Ct. 155986
CONCLUSION
156. Because the Trust is not registered, it has no authority to transact business in Florida, any
business transacted by, or on behalf of the Trust, in Florida, appears to be unlawful, and the Trust
does not have the capacity to sue in Florida's state courts. The Trust, even if it was registered, is
not a party to this action. The Trustee has not provided documents to support its allegation that it
represents the Trust. The Complaint fails to show that anyone has standing to bring or to
maintain this foreclosure action.
157. The record shows that the Court failed to follow the established rules for setting a trial
date. Therefore, the order setting a trial date should be stricken.
158. It appears that, at the moment, there is no valid complaint on file in this action. The initial
complaint was insufficient, and the order purporting to grant leave-to-amend is null and void for
lack of procedural and subject matter jurisdiction. It is also void for violation of Defendant's due
process rights.87 A trial on the same issues is barred by the doctrine of res judicata.
159. It also appears that the Court has no personal (in personam) jurisdiction over the alleged
Trust or over the Trustee. Without two adversarial parties, there is no judicial controversy and
the Court has no subject matter jurisdiction.
160. Under penalty of perjury, I, the undersigned, declare that I have read the foregoing, and
the facts alleged therein are true and correct to the best of my knowledge and belief.
161. Further Affiant sayeth naught.
WHEREFORE, the Defendant moves the court to: (A) STRIKE the “Order Setting Non-
Jury Trial” filed on Thursday, 5 June 2014; (B) DETERMINE whether the Court has in
personam jurisdiction over the following five (5) persons. 1) the alleged Trust, “Nomura Home
Equity Loan Trust, Series 2006-WF1 Asset Backed Pass-Through Certificates,” 2) the alleged
Trustee, “HSBC Bank USA, National Association,” 3) the purported affiant, Vladimir Turina, 4)
the purported “contractual servicer,” “Wells Fargo Bank, NA,” and 5) the purported affiant,
86 Gutierrez v. Wells Fargo Bank, NA, 730 F. Supp. 2d 1080, at 1130 (N.D. Cal. 2010). See, also, FS 660.27(1) and “Exhibit N” attached to my “Verified Cross-Motion...”
87 Shiver v. Wharton, 9 So. 3D 687, at 690 (Fla. 4th DCA 2009).
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Lemar A. Smith, (C) TAKE JUDICIAL NOTICE of those Court records and Official Records of
Highlands County, Florida which are mentioned above; and to (D) DISMISS THE ACTION
with prejudice because the Complaint fails to state a cause of action for reasons shown on the
face of the Complaint that cannot be amended to state a cause of action for foreclosure, and the
Plaintiff is barred by the doctrine of res judicata from litigating the same issues against the same
parties more than once. Defendant also moves the Court for findings of fact and conclusions of
law; and for such other, further and different relief as the Court deems appropriate under the
facts and the appropriate law.
SUBMITTED and VERIFIED BY: Paul J. Thornton, Co-Defendant, self-represented3916 Craig AvenueSebring, FL 33870-1196
DEFENDANT, PAUL THORNTON'S VERIFIED MOTIONSTO STRIKE THE ORDER SETTING TRIAL, TO DETERMINEIN PERSONAM JURISDICTION, TO TAKE JUDICIAL NOTICEOF OFFICIAL RECORDS, AND TO DISMISSTHIS ACTION WITH PREJUDICE ...................................................... 1
I. THIS ACTION IS “CLOSED” AND IT APPEARS THAT THECOURT HAS NO JURISDICTION TO CONTINUE WITHANY PROCEEDINGS HEREIN ............................................................ 2
II. THE TRIAL DATE WAS IMPROPERLY SET AND THE ORDERSETTING TRIAL DATE SHOULD BE STRICKEN ......................... 25
III. THE TRUST IS CREATED FOR THE PURPOSEOF SECURITIZATION ........................................................................ 29
IV. IN PERSONAM AND SUBJECT MATTER JURISDICTION ............ 30
V. CONCLUSION ..................................................................................... 34
CERTIFICATE OF SERVICE ............................................................. 35
EXHIBIT A ........................................................................................... 36
EXHIBIT B ........................................................................................... 37
EXHIBIT C ........................................................................................... 38
INDEX .................................................................................................. 39
TABLE OF AUTHORITIES ................................................................ 40
39
TABLE OF AUTHORITIES
CASE CITATIONS Page
Alech v. General Ins. Co., 491 So. 2d 337, at 338 (Fla. 3d DCA 1986) ............................ 28
Alvarez v. DeAguirre, 395 So. 2D 213, at 217 (Fla. 3d DCA. 1981) ................................ 23
Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25 (1996) ............................... 13
Bautigam v. MacVicar, 73 So.2d 863 (Fla. Sup. Ct. 1954) citing Ervin v. Taylor ............ 30
Bennett v. Continental Chemicals, Inc.,492 So. 2d 724, at 726 and 728 (Fla. 1st DCA 1986) ................................................... 28
Fernandez v. Fernandez, 648 So. 2D 712, at 713 (Fla. Sup. Ct. 1995) ............................. 24
Fla. Power & Light Co. v. Canal Authority, Etc., 423 So. 2d 421(Fla. 5th DCA 1982) ....................................................................................................... 32
Gutierrez v. Wells Fargo Bank, NA, 730 F. Supp. 2d 1080, at 1130 (N.D. Cal. 2010) ..... 34
Hermitage Ins. Co. v. Oxygen in the Grove, 30 So.3d 549 at 551 (Fla. 3d DCA 2010) ...... 6
Jackson v. Wells Fargo Home Mortgage, Inc., No 03-5019AP-88A(Fla. 6th Cir. App. Ct. August 9, 2004) ........................................................................ 10
Joyce v. United States, 474 F.2d 215, at 219 (3d Cir. 1973) .............................................. 31
JPMorgan Chase Bank, NA v. Hernandez,99 So. 3D 508, at 511-512 (Fla. 3d DCA 2011) ........................................................... 16
JP Morgan Chase Bank v. Jurney, 86 So. 3d 1182 (Fla. 1st DCA 2012) ........................... 17
Konsulian v. Busey Bank, N.A., __ So.3d __,Fla. L. Weekly D1164 (Fla. 2d DCA 6/1/11) ............................................................... 19
McLean v. JP Morgan Chase Bank Nat. Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012) ........ 18
Opal V. Bate v. Wells Fargo Bank, N.A., Adv. Pro. No. 8:10-ap-01289-MGW,Memorandum Opinion on Preemption by National Bank Act of FloridaConsumer Collection Practices Act, Michael G. Williamson,Bankruptcy Judge, 22 June 2011 .................................................................................. 11
Pasco County v. Quail Hollow Properties, 693 So.2d 82 at 83 (Fla. 2d DCA 1997) ......... 5
Penn v. Com., 528 S.E.2d 179, 32 Va. App. 422 (Ct. App. 2000) .................................... 32
Riverside Towers, Inc. v. Riverside Dev. Corp.,310 So.2d 44, at 44-45 (Fla. 4th DCA. 1975) ................................................................ 24
Rountree v. Rountree, 72 So. 2d 794, at 795 (Fla. Sup. Ct. 1954) ..................................... 28
Shiver v. Wharton, 9 So. 3D 687, at 690 (Fla. 4th DCA 2009) ......................................... 34
Stadler v. Cherry Hill Developers, Inc., 150 So. 2d 468, at 471 (Fla. 2d DCA 1963) ...... 16
Tampa Properties, Inc. v. Great Am. Mortgage Investors,333 So. 2D 480, at 481 (Fla. 2d DCA 1976) .......................................................... 15, 33
Walters v. Ocean Gate Phase I Condominium,925 So. 2D 440, at 443 (Fla. 5th DCA 2006) ............................................................... 23
Watters v. Wachovia Bank, NA, 550 U.S. 1, at 11,127 S.Ct. 1559 167 L. Ed. 2d 389 (2007) ..................................................................... 34
Willey v. W. J. Hoggson Corp., 90 Fla. 353, 106 So. 408 (1925) ...................................... 15
Worthington v. Worthington, Fla. 2d DCA, October 30, 2013, Case No. 2D12-1361 ...... 27
