Mario Kenny ™

Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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IN THE CIRCUIT COURT OF THE XXXXXXXXXX JUDICIAL CIRCUIT
IN AND FOR XXXXXXXXX COUNTY, FLORIDA
XXXXXXXXXXXXXXXXXXXXXX,
Plaintiff,
vs.
JOHN XXXXXXXXXXXXX, et al.,
Defendant
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Case No.: XXXXXX
MOTION TO STRIKE VERIFICATION OF THE VERIFIED AMENDED COMPLAINT
AS A SHAM AND MEMORANDUM IN SUPPORT THEREOF
COMES NOW Defendant, JOHN XXXXXXXXXXXXX, by and through undersigned
counsel, pursuant to Florida Rule of Civil Procedure 1.150, files this Motion to Strike
Verification of the Verified Amended Complaint as a Sham and Memorandum in support thereof
and states the following:
1. This is a residential foreclosure action filed on September 22, 2011.
2. The Plaintiff has filed an Verified Amended Complaint (hereinafter “Complaint”)
pursuant to Florida Rules of Civil Procedure 1.110(b) which states in relevant part:
When filing an action for foreclosure of a mortgage on residential
real property the complaint shall be verified. When verification of
a document is required, the document shall include an oath,
affirmation, or the following statement: “Under penalty of perjury,
I declare that I have read the foregoing, and the facts alleged
therein are true and correct to the best of my knowledge and
belief.”
3. Plaintiff’s Complaint contains the above verification, signed by Angela
XXXXXXXXXXXXX, Vice President for XXXXXXXXXXXXX, Inc., as attorney-in-fact for
the Plaintiff. (Attached as Exhibit A is the Verified Amended Complaint, without attachments).
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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4. The deposition of Angela XXXXXXXXXXXXX took place on February 8, 2013, during
which Ms. XXXXXXXXXXXXX was questioned about her knowledge of the truth and
correctness of the facts in the complaint, which she allegedly verified. (Attached as Exhibit B is
the Deposition Transcript of Angela XXXXXXXXXXXXX).
5. During the deposition, Ms. XXXXXXXXXXXXX admitted that she was not the Vice
President of XXXXXXXXXXXXX, Inc., had no document which clearly gave her the right to
verify the complaint on the Plaintiff’s behalf, and she could not verify the truth and accuracy of
the alleged facts in paragraphs 2, 4, 5, 7, 9, 10, 11, 12, 13, and 14 of the Complaint, despite the
fact that she signed the verification under penalty of perjury. Defendant’s Memorandum in
Support of this Motion contains the details of the false verification and is incorporated herein.
6. Ms. XXXXXXXXXXXXX admitted that some of the facts were verified by merely
reading the Complaint and nothing else. In those instances, Ms. XXXXXXXXXXXXX was
relying on the same document she was charged with verifying in order to confirm the veracity of
the allegation in the Complaint. This obviously defeats the purpose of verification.
7. Therefore, according to the admission of the Plaintiff’s deponent, the verification found in
the Complaint is a sham and should be stricken pursuant to Rule 1.150 of the Florida Rules of
Civil Procedure.
8. Rule 1.150 states:
Rule 1.150. Sham Pleadings
(a) Motion to Strike. If a party deems any pleading or part
thereof filed by another party to be a sham, that party may
move to strike the pleading or part thereof before the cause is
set for trial and the court shall hear the motion, taking evidence of
the respective parties, and if the motion is sustained, the pleading
to which the motion is directed shall be stricken. Default and
summary judgment on the merits may be entered in the discretion
of the court or the court may permit additional pleadings to be filed
for good cause shown.(emphasis added)
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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9. Florida courts have clearly equated the word “sham” with “false” and held that a
pleading is considered a sham “when it is inherently false and based on plain or conceded facts,
clearly known to be false at the time the pleading was made.” Decker v. County of Volusia, 698
So. 2d 650 (Fla. 5th DCA 1997)(quoting Destiny Const. Co. v. Martin K. Eby Const., 662 So.2d
388, 390 (Fla. 5th DCA 1995)); Jimenez v. WSUA Broadcasting Corp., 870 So. 2d 873 (Fla. 3d
DCA 2004)(Pleadings were properly struck upon showing that complaint contained false
allegations, and was tantamount to fraud on the court.).
10. Upon reading Ms. XXXXXXXXXXXXX testimony, there can be no doubt that the
verification in the Complaint meets the definition of a sham pleading and should be stricken.
11. The Florida Supreme Court has held that courts have the power to strike a sham pleading.
“The power is not derived from statute but is inherent in the court.” Guaranty Life Ins. Co. of
Florida v. Hall Bros. Press, 138 Fla. 176, 189 So. 243 (1939)(quoting Rhea v. Hackney, 117 Fla.
62, 157 So. 190 (1934)). “The power to eliminate sham pleadings is an indispensable power to
the protection and maintenance of the character of the court, and the proper administration of
justice.” Id.
12. Given the falsity of the verification, this Court has a duty to strike the verification. Once
stricken, the Complaint will no longer state a cause of action pursuant to Rule 1.110(b), as it will
fail to contain a verification.
13. Rule 1.110(b) states that:
A pleading which sets forth a claim for relief, whether an original
claim, counterclaim, crossclaim, or third-party claim, must state a
cause of action and shall contain (1) a short and plain statement
of the grounds upon which the court’s jurisdiction depends, unless
the court already has jurisdiction and the claim needs no new
grounds of jurisdiction to support it, (2) a short and plain statement
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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of the ultimate facts showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief to which the pleader
deems himself or herself entitled. Relief in the alternative or of
several different types may be demanded. Every complaint shall be
considered to demand general relief.
When filing an action for foreclosure of a mortgage on
residential real property the complaint shall be verified.
(emphasis added)
14. Dismissal is a proper remedy for failure to state a cause of action. See Barrett v. City of
Margate, 743 So. 2d 1160 (Fla. 4th DCA 1999).
15. In Barrett a pro se plaintiff’s complaint failed to comply with Rule 1.110(b) by failing to
state a cause of action. Id. The trial Court allowed the plaintiff the opportunity to amend the
complaint in order to correct the problem but the plaintiff failed to do so. Id. As a result, the trial
Court dismissed the Complaint with prejudice. Id. On appeal the Fourth District Court of
Appeals affirmed the trial courts ruling holding that it was not improper to dismiss a
complaint, with prejudice, for repeated refusal to comply with the rules of pleading. Id.
16. The Fourth District Court of Appeal emphasized the importance of complying with the
Rules of Civil Procedure in stating that the plaintiff’s improper complaint “coupled with their
refusal to comply with either the trial court’s directives or the mandate of Florida Rule of Civil
Procedure 1.110(b), clearly demonstrates the need for the rule and exemplifies the potential for
abuse of the judicial process when the rule is not enforced.” Id.
17. In the above styled case, the Plaintiff was also given an opportunity to correct the
verification in the complaint but failed to do so properly.
18. On October 14, 2011, the Defendant filed a Motion to Strike the Plaintiff’s Verified
Complaint for failure to properly verify. (Attached as Exhibit C is the Defendant’s Motion to
Strike the Plaintiff’s Verified Complaint).
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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19. On May 2, 2012, Defendant’s Motion was granted and Plaintiff was given 60 days to
amend the verification. (Attached as Exhibit D is this Court’s Order).
20. Plaintiff then filed the Verified Amended Complaint, which is the subject of this Motion,
and again failed to comply with the verification requirements, this time by providing a false
verification.
21. Given the holding of the Fourth District in Barrett and the history of the Plaintiff’s action
regarding the verification, dismissal of the above styled case is proper and well within this
Court’s power.
WHEREFORE, the Defendants respectfully request this Honorable Court enter an Order
striking the Plaintiff’s Verification contained within its Verified Amended Complaint as a sham,
dismiss the Complaint, without prejudice, and award attorney’s fees and costs and for any other
relief this Court deems just and proper.
VERIFICATION
Under penalties of perjury, I declare that I have read the foregoing and the facts stated in
it are true.
_________________________
Evan M. Rosen, Esq.
Fla. Bar 120103
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
STRIKE VERIFICATION OF THE AMENDED COMPLAINT AS A SHAM
Plaintiff’s Complaint is improperly verified according to the admissions of the verifier,
Angela XXXXXXXXXXXXX, who is the alleged Vice President for XXXXXXXXXXXXX,
Inc., the alleged attorney-in-fact for Plaintiff. As stated above, during her deposition Ms.
XXXXXXXXXXXXX admitted that some of the facts alleged in the Complaint were not true;
she also admitted that she could not and did not verify paragraphs 2, 4, 5, 7, 9, 10, 11, 12, 13, and
14.
First, although the Ms. XXXXXXXXXXXXX listed her position as “Vice President” in
the verification of the Complaint, Ms. XXXXXXXXXXXXX admitted that she was “not the
vice president” of the company. (XXXXXXXXXXXXX’ Depo, Pg. 90 Lns. 3-16). Then, Ms.
XXXXXXXXXXXXX admitted that the alleged Power of Attorney which allegedly gave the
servicer, her employer, the right to act on behalf of the Plaintiff, was not made by the Plaintiff
and did not even mention the Plaintiff’s name. (XXXXXXXXXXXXX’ Depo, Pg. 71 Lns.3-
16 & Pg. 92 Lns. 15 – Pg. 93 Ln. 14)(See XXXXXXXXXXXXX’ Depo Defense Exhibit 7 –
Power of Attorney). Further, the Corporate Resolution from the Plaintiff’s employer contained
conflicting directives as to whether or not Ms. XXXXXXXXXXXXX was actually even
authorized to sign for the company for which she worked, XXXXXXXXXXXXX, which is not
even a party to this action. (See XXXXXXXXXXXXX’ Depo Defense Exhibit 5 – Corporate
Resolution).
Even if she was authorized to sign on behalf of the Plaintiff, Ms. XXXXXXXXXXXXX
admitted that she did not and could not verify all of the factual allegations in the Complaint.
Although Ms. XXXXXXXXXXXXX signed the verification on the Complaint under penalty of
perjury and swore that all of the facts alleged in the complaint were true and correct to the best
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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of her knowledge and belief, she admitted in her deposition that her knowledge regarding most
of the information was gained solely from the information found in the Complaint. The very
document Ms. XXXXXXXXXXXXX was charged with verifying.
Ms. XXXXXXXXXXXXX testified that in order to verify the Complaint, she reviewed a
packet of documents which included the Mortgage, Note, Payment History, Demand Letter,
Loan Fact Sheet, Corporate Resolutions and Power of Attorney (hereinafter “the Packet”).
(XXXXXXXXXXXXX Depo, Pg. 27 Lns. 19 – Pg. 28 Ln. 21). She also reviewed her computer
system which mirrored what was in the Packet. (XXXXXXXXXXXXX Depo, Pg. 16 Lns. 1-8 &
Pg. 53 Lns. 8-13). Alone, the documents contained in the packet would not have been sufficient
to verify the complaint. However, as the deposition progressed, Ms. XXXXXXXXXXXXX
“remembered” some additional documents she allegedly reviewed but did not have with her and
were not provided to Defense counsel despite having been subpoenaed prior to the deposition.
Regardless, even if she did have the alleged additional documents when verifying the Complaint,
it is clear from her testimony that she did not and does not have sufficient knowledge to properly
and thoroughly verify the Complaint.
The Complaint and Ms. XXXXXXXXXXXXX’ testimony are as follows respectively.
Paragraph 2 of Complaint: “The court has jurisdiction over the
subject matter.”
As to the basis of Ms. XXXXXXXXXXXXX’ belief that paragraph 2 of the Complaint is
true and correct to the best of her knowledge – as required by Fla.R.Civ.P. 1.110(b) – she states,
“[o]ther than the complaint and what I have in front of me, that’s pretty much all I have. I’m
hoping that it’s factual.” (XXXXXXXXXXXXX Depo, Pg. 72 Ln 22 – Pg 73 Ln 2).
Paragraph 4 of Complaint: “The mortgage of the Plaintiff is a
lien superior in dignity to any prior or subsequent right, title, claim,
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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lien, or interest arising out of mortgagor or the mortgagor’s
predecessors in interest.”
Ms. XXXXXXXXXXXXX, after attempting to seem as if she had verified this fact,
finally admitted that she did “not know if there’s any other liens.” (XXXXXXXXXXXXX
Depo, Pg. 76 Lns. 8-10). If Ms. XXXXXXXXXXXXX did not know whether other liens existed,
then she could not have known whether paragraph 4 was true and correct for purposes of
verification.
Paragraph 5 of Complaint: “Plaintiff is entitled to enforce the
terms of the note and mortgage pursuant to Florida Statute
673.3011.”
At the deposition, Ms. XXXXXXXXXXXXX admitted she was not familiar with Florida
Statute 673.3011.
Q: How do you know that the plaintiff is entitled to enforce the
terms of a note and mortgage pursuant to that statute?
A: Because the mortgagors have signed off on those documents
stating.
Q: Do you know what that statute says?
A: No, I do not, not at this time.
Q: Have you ever known what that statute says?
A: It was a part of our training, I’m sure that — but I just can’t
remember off the top of my head right now.
(XXXXXXXXXXXXX Depo, Pg. 77 Lns. 3-13). Out of the 18 count complaint, paragraph 5 is
the only paragraph that contains a statute. This statute is one of the most critical facts the
Plaintiff must establish. Section 673.3011 contains two sentences that define who is entitled to
enforce the instruments which are the basis for the Plaintiff’s cause of action. It is unacceptable
that the person charged with verifying the truth and correctness of the Plaintiff’s right to enforce
does not even know what the statute says and was not prepared to answer how she knew that
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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paragraph 5 was true and correct, despite knowing that her deposition was about the verification
of the Complaint.
Paragraph 7 of Complaint: “Plaintiff declares the full amount
payable under the note and mortgage to be due.”
Ms. XXXXXXXXXXXXX clearly had no idea where to find the information that would
enable her to know whether the Plaintiff declared the full amount due under the note and
mortgage. (XXXXXXXXXXXXX Depo, Pg. 77 Ln. 15 – Pg. 79 Ln. 9). First she pointed to the
fact that the Defendant signed the note and mortgage. (XXXXXXXXXXXXX Depo, Pg. 77 Lns.
15-20). Then she attempted to correct herself by saying that she knew because of the Complaint
that was filed. (XXXXXXXXXXXXX Depo, Pg. 77 Lns. 21-24). In the same sentence she
corrected herself again and said that she knew the full amount was declared by the Plaintiff
because they placed a judgment against the borrower. (XXXXXXXXXXXXX Depo, Pg. 77 Ln.
24-25). Ms. XXXXXXXXXXXXX then said that the Demand Letter shows that the Plaintiff
declared the full amount but upon further questioning quickly realized that this was not true
either. (XXXXXXXXXXXXX Depo, Pg. 78 Ln. 9 – Pg. 79 Ln. 1). Finally, having run out of
answers, Ms. XXXXXXXXXXXXX gave up and admitted “I’m not sure.”
(XXXXXXXXXXXXX Depo, Pg. 79 Lns. 2-7).
Q: How do you know that the plaintiff declares the full amount
payable under the note and mortgage to be due?
A: Because of their signature. They’ve signed off stating they
would pay that amount and they became delinquent.
Q: But how do you know the plaintiff is declaring that amount
payable?
A: Oh, I’m sorry. Because of the complaint that’s been filed. I
apologize. Okay. It’s because they placed a judgment against
the borrowers.
Q: The plaintiff placed a judgment against the borrowers?
A: Meaning us – well, the attorneys have filed a complaint stating
that they have been delinquent with their payments, so,
therefore, they have — they’re no — they’re not keeping up with
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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what they have stated that they would pay, their payments
monthly, if that makes — I’m trying to make sense of it.
Q: What in the documents that you’ve reviewed for this case tells
you that the plaintiff declares the full amount payable under the
note and mortgage to be due?
A: The demand letters that were served to the borrowers.
Q: Let’s take a look at that. Can you show me in either D-2 or D-3
where the plaintiff declares the full amount due?
A: Not — okay. I see what you’re saying, the full amount due. It
shows the delinquent payments, of course. But the actual note
has the full amount that the borrower signed off on that shows
the amount that they were to pay. And, of course, I have my
fact verification sheet, which is D-4, that shows the original
amount of the mortgage, which was 5,020, and the amount of
each payment that should have been paid and when the last
payment was received.
Q: And I appreciate what you’re saying, but none of that’s
answering the question. I just want to know what shows you
that the plaintiff has made this declaration.
A: Okay. When you say — meaning the complaint itself — I’m not
sure. Really, I’m not sure what you’re — other than — I’m
just going to be quiet on that one. I’m not sure.
(XXXXXXXXXXXXX Depo, Pg. 77 Ln. 15 – Pg. 79 Ln. 9). For someone tasked with verifying
a complaint, knowing whether or not the servicer had declared the full amount under the note
should have been fairly simple and straight forward. From this fact alone, it is clear that Ms.
XXXXXXXXXXXXX did not properly verify the Complaint and could not have done so with
her limited knowledge.
Paragraph 9 of Complaint: “In order to protect its security, the
Plaintiff may have advanced and paid Ad Valorem Taxes,
premiums on insurance required by the mortgage and other
necessary costs, or may be required to make such advances during
the pendency of this action. Any such sum so paid will be due and
owing Plaintiff.”
At first, Ms. XXXXXXXXXXXXX said that the Plaintiff had advanced taxes, premiums
on insurance and other costs. But when asked to show where in the Pay History this was shown,
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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Ms. XXXXXXXXXXXXX retracted her statement and admitted that no payments of this nature
were made by the Plaintiff. (XXXXXXXXXXXXX Depo, Pg. 79 Ln. 10 -Pg. 80 Ln. 10).
Q: Okay. How do you know that in order to protect its security the
plaintiff may have advanced or paid taxes — excuse me, ad
valorem taxes, premiums on insurance required by the
mortgage and other necessary costs or may be required to make
such advances during the pendency of this action?
A: The actual payments are on the — are on this payment history
that you’ve been given. And then, of course, we have the note
and mortgage. It shows the –
Q: So has the plaintiff advanced any taxes or premiums on
insurance or other costs?
A: Yes. I mean, according to what I have here on the pay history.
Q: Can you show me on the pay history where the plaintiff –
A: When you say the plaintiff, I hope I’m understanding that
correctly. We’re talking about the borrower or the actual …
Q: Sure. The plaintiff in this case is, technically, Master
Adjustable Rate Mortgages Trust 2007-1, Mortgage Passthrough
Certificates Series 2007-1.
A: Oh, where they’ve actually paid anything? No. I don’t see that
for them. I’m talking about the actual mortgagor2. So I’m sorry.
I misunderstood that question.
(XXXXXXXXXXXXX Depo, Pg. 79 Ln. 10 -Pg. 80 Ln. 10).
Paragraph 10 of Complaint: “On or about February 28, 2008,
TERRY XXXXXXXXXXXXX died.”
Once again, Ms. XXXXXXXXXXXXX’ uncertain answers demonstrate that she did not
properly and independently verify every fact in the Amended Verified Complaint.
(XXXXXXXXXXXXX Depo, Pg. 80 Ln. 11 – Pg. 83 Ln. 12). Ms. XXXXXXXXXXXXX was
asked:
Q: Your knowledge that she is dead is because — on that date is
because it’s stated on the complaint; isn’t that what you just said
to me?
A: Yes, that is correct, because it’s stated on the complaint.
2 Based on this response, it seems the witness does not even know which party is the Mortgagor and which is the
Mortgagee.
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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(XXXXXXXXXXXXX Depo, Pg. 81 Lns. 12-16). Ms. XXXXXXXXXXXXX then backtracked
and stated that she must have seen a death certificate if Terry XXXXXXXXXXXXX
passed away. (XXXXXXXXXXXXX Depo, Pg. 83 Lns. 9-12). However, this death certificate
was not mentioned as being part of the Packet, was not in Ms. XXXXXXXXXXXXX possession
and had not been provided to Defense counsel as part of the subpoena documents which were
requested.
Paragraph 11 of Complaint: “The record legal title to said
mortgaged property is vested in Defendant(s), JOHN
XXXXXXXXXXXXX, living and if dead, the unknown spouses,
heirs, and beneficiaries who hold or holds possession.”
Ms. XXXXXXXXXXXXX had no idea which document demonstrates that Defendant,
John XXXXXXXXXXXXX, has the record legal title to the property which is the subject of this
law suit. (XXXXXXXXXXXXX Depo, Pg. 83 Lns. 16 – Pg. 85 Ln. 11). When asked how she
knew paragraph eleven was true and correct, Ms. XXXXXXXXXXXXX pointed first to the
Mortgage and Note. (XXXXXXXXXXXXX Depo, Pg. 83 Lns. 16-22). Then Ms.
XXXXXXXXXXXXX stated that the Defendant did not hold legal title because he had not paid
off the Mortgage and would have legal title once the Mortgage had been paid in full.
(XXXXXXXXXXXXX Depo, Pg. 83 Ln. 23- Pg. 84 Ln. 6). Ms. XXXXXXXXXXXXX then
retracted her statement and said that she relied on Mortgage, Note, Demand Letter, and Pay
History to verify that the Defendant was the record legal title owner. (XXXXXXXXXXXXX
Depo, Pg. 84 Ln. 25 – Pg. 85 Ln. 11). Obviously, despite Ms. XXXXXXXXXXXXX’ alleged
training allowing her to verify the facts alleged in the Complaint, she cannot even articulate that
the recorded Deed is what gives the Defendant evidence of legal title. Further, she is clearly
unaware of the basic function of a mortgage under Florida’s “lien theory.”
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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Q: How do you know that the record legal title to the mortgage
property is vested in John XXXXXXXXXXXXX?
A: Because of the documents he signed, the note and mortgage.
Q: The note and mortgage tells you that he owns the property?
A: Yes.
Q: And that legal title is vested to him?
A: Once he pays it off completely, then yes.
Q: What was that? I’m sorry?
A: Once it’s paid in its entirety.
Q: I couldn’t hear you. If he’s paid in its entirety?
A: I said once he’s paid this debt off in its entirety, then he
would own this title — own it. But, yes, he’s in pursuit of
paying for the title.
(XXXXXXXXXXXXX Depo, Pg. 83 Ln. 16 – Pg. 85 Ln. 11). Once again, Ms.
XXXXXXXXXXXXX demonstrated her lack of knowledge and inability to verify the
Complaint.
Paragraph 12 of Complaint: “All conditions precedent to the
acceleration of this mortgage note and to foreclosure of the
mortgage have been fulfilled and have occurred.”
Ms. XXXXXXXXXXXXX readily admitted that she did not know what a condition
precedent was and that she relied on the Complaint to verify that this was true.
(XXXXXXXXXXXXX Depo, Pg. 85 Lns. 12-21).
Q: Can you tell me what a condition precedent is?
A: I cannot.
Q: Tell me how you know that all conditions precedent to the
acceleration of the mortgage note and to foreclosure of the
mortgage have been fulfilled and have occurred.
Ms. XXXX: Again, objection based on legal contention, but go
ahead.
A: By reading the complaint, the information that’s here.
(XXXXXXXXXXXXX Depo, Pg. 85 Lns. 12-21).
This obviously defeats the purpose of trying to verify the facts in the Complaint.
Furthermore, even if she would have known that the condition precedent referred to the Demand
Letter, Ms. XXXXXXXXXXXXX admitted that she did not know if the Demand Letter was
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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mailed out. (XXXXXXXXXXXXX Depo, Pg. 60 Lns. 3-6 & Pg. 61 Lns. 18-20). Therefore, she
could not have verified that all conditions precedent were fulfilled.
Paragraph 13 of Complaint: “For purposes of collection and
foreclosure, the Plaintiff has retained the undersigned attorney and
is obligated to pay said attorney a reasonable fee for his services.”
Ms. XXXXXXXXXXXXX pointed to the Demand Letter, which deals with the potential
acceleration of the Note and not with the retention of counsel. Then she admitted that she did not
know. (XXXXXXXXXXXXX Depo, Pg. 85 Ln. 22 – Pg. 86 Ln.4 & Pg. 86 Ln. 18 – Pg. 87 Ln.
1).
Q: How do you know that for purposes of collection and
foreclosure the plaintiff has retained the undersigned attorney
and is obligated to pay said attorney a reasonable fee for
services?
A: That, again, dates back to the demand letter that was issued, the
delinquent payments. And how he was obtained or who
obtained and what date, I’m not sure.
(XXXXXXXXXXXXX Depo, Pg. 85 Ln. 22 – Pg. 86 Ln.4 & Pg. 86 Ln. 18 – Pg. 87 Ln. 1).
Q: So how do you know that XXXXXXXXXXXXXXXXXXX
is the attorney — the undersigned attorney that’s been
retained by the plaintiff?
A: I’m not sure.
(XXXXXXXXXXXXX Depo, Pg. 86 Ln. 18-21).
Paragraph 14 of Complaint: “Plaintiff alleges that the claims of
the remaining Defendants are secondary, junior, inferior and
subject to the prior claim of Plaintiff, and more particularly the
remaining Defendants claim some right, title and interest in and to
the mortgaged premises . . .”
Ms. XXXXXXXXXXXXX admitted that she was not sure if paragraph 14 was true and
accurate. (XXXXXXXXXXXXX Depo, Pg. 87 Lns. 2-8). She referred to the information in the
Packet and said she could not identify any other documents that would verify or deny paragraph
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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14. (XXXXXXXXXXXXX Depo, Pg. 87 Lns. 9-24). However, the information in the Packet
clearly did not contain any information regarding claims of other defendants.
Q: How do you know that the remaining defendants claim some
right, title and interest in the mortgage premises?
A: Again, all of this just goes back to the information that’s in this
packet and what they were — so I don’t have any — other than
what I see before me and what I would have viewed at that
time.
Q: Besides what’s stated here in the complaint, in Paragraph 14
that I just read to you –
A: Yes.
Q: — is there any other document that you reviewed that states the
defendants — other defendants have some right, title and
interest to the mortgage premises?
A: No. I cannot think of it right off. I cannot recall.
(XXXXXXXXXXXXX Depo, Pg. 87 Ln. 9-24).
CONCLUSION
It is plainly obvious that Ms. XXXXXXXXXXXXX has very little knowledge of even
the basics of her employer’s business. Although she claims she received training to verify
complaints, she cannot explain basic facts that are alleged in the Complaint and does not even
know what to look for in order to verify those facts. Most poignantly, she admittedly did not
verify certain key aspects of the Complaint but instead relied on the Complaint itself as her proof
that the allegations stated therein are true and correct.
If this were a philosophy paper, a somewhat circular statement such as “I think therefore I
am” is perfectly acceptable. However, in a court of law, when a document requires that it be
verified as true and correct, under penalty of perjury, one cannot sign off that what is stated in
the Complaint is true because it is stated in the Complaint. This is preposterous.
The entire reasoning behind the Florida Supreme court taking unprecedented, historic
action to amend rule 1.100(b) was because of the financial industry’s well documented illegal
Defendant’s Motion to Strike Verification of the Verified Amended Complaint as a Sham
and Memorandum in Support Thereof
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behavior. It was primarily in response to the “robo signing” scandal, which ultimately led to
settlements with 49 states, OCC consent orders, and numerous class action and shareholder
lawsuits. We now know that “robo-signing” is used to describe the rampant process of having a
person sign a document without authority to do so and/or knowledge as to that which they are
signing, despite swearing otherwise. Yet, no matter the amount and severity of lawsuits,
settlements, and bad publicity, it appears, at least in this case, that the act of signing without
proper authority or knowledge as to that which one is signing, continues. The result here is that
the verification in the Complaint is a sham and must be stricken.
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to XXXXXXXXXXXXXXXXXXXXX
by e-mail on June 7th, 2013.
_________________________
Evan M. Rosen, Esq.
Law Offices of Evan M. Rosen, P.A.
2028 Harrison Street, #204
Hollywood, FL 33020
754-400-5150 (phone)
754-400-5260 (fax)
erosen@evanmrosen.com
Fla. Bar 120103
Attorney for Defendant