IN the CIRCUIT COURT of the 20Th JUDICIAL CIRCUIT

IN THE CIRCUIT COURT OF THE 20th JUDICIAL CIRCUIT

IN AND FOR LEE COUNTY, STATE OF FLORIDA CIVIL DIVISION

CASE NO: 06-CA-4176

US BANK NATIONAL ASSOCIATION,

Plaintiff,

vs.

NORMAN CRAIG ANDERSON, et al.

Defendants.

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DEFENDANTS NORMAN CRAIG ANDERSON AND SHANNON ANDERSON'S VERIFIED MOTION TO STRIKE PLAINTIFF’S COMPLAINT FOR LACK OF STANDING, AND FOR FRAUD UPON THE COURT, SUPPORTED BY A MEMORANDUM OF LAW

TO REFUSE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR TO GRANT SUMMARY JUDGMENT IN DEFENDANT'S FAVOR WITH PREJUDICE AND SANCTIONS AND TO CANCEL THE ORDER SETTING CASE FOR DOCKET SOUNDING ON JULY 19, 2010.

NORMAN CRAIG ANDERSON AND SHANNON ANDERSON [THE ANDERSONS], after being sworn, deposed by the undersigned authority says on personal knowledge as follows:-

Any and all statements made in this document are true and this statement is made under the penalty of perjury and includes all evidence submitted, Exhibits attached to this document and true copies of original documents or those filed in public or Court records .

WHEREAS, THE ANDERSONS, pro se. pursuant to Fla.R.Civ.P. 1.150 and 1.130(a)(b), submits their Motion to Strike Plaintiff’s Complaint as a Sham Pleading and moves this Court to Order Summary Judgment in their favor and to Dismiss this Case with Prejudice, Sanctions and legal costs (if any) they incur.

1. Defendants state under penalty of perjury that this case, in common with huge numbers of others being processed through the Courts of Florida is a constantly changing smorgasbord of fraud in which the Plaintiff, two separate law firms, [individual attorneys and their non-licensed employees], Mortgage Electronic Registration Systems [MERS], Chase Home Finance LLC [including various named employees of that entity] - to include other parties not specifically mentioned in this paragraph but who may be exposed in evidence, to be submitted in support of this Motion – have all actively participated.
2. To assist this Court Defendants have set out in the following sub-paragraphs a table of fraudulent actions and violations of Federal and State laws that are present in this case, prior to setting out [where further explanation is necessary] the details of the items listed herein, noticing the Exhibits attached and including a Memorandum of Law. [The Upper Case Letter ‘F’ at the end of a sub-paragraph indicates the action or lack of action described therein is fatal to the Complaint ab initio].

a)No Notice under the Fair Debt Collection Practices Act [FDCPA] has ever been served on either Defendant by either of the two law firms who have represented the Plaintiff in this action. F.

b)Defendants have not received a notification through the US Mail of the Notice of Re-Hearing of Summary Judgment that has been scheduled to take place prior to the ‘Docket Sounding’ [of which they were noticed] on July 19,2010, despite the fact that this Motion was filed in the Court on June 9, 2010 and Judge Carlin dated his Order the following day on June 10, 2010. As documented in sub-paragraph d) hereinafter, no Default has been obtained, and the Florida Default Law Group has included a Certificate of Service on the filed document, but no such document has been received. Defendants understand from other Defendants and from information available on the Internet, including Attorney sources, that this practice of printing a certificate of service, but not complying with it is a regular practice by this law firm and other foreclosure mills. F.

c)The Plaintiff in this case does Not have A Cause of Action against Defendants, THE ANDERSONS, but in a series of attempts to perpetrate a fraud upon this court in conjunction with two consecutive law firms allegedly acting as their counsel have made statements, manufactured documents and file those documents in both the Public and Court Records. F.

d)Plaintiff attempted to obtain a Default on September 15, 2008 in a Motion submitted to Judge McHugh. The copy of the Default Issued Notice prepared by Plaintiff’s Counsel and filed in the Court Records shows a line drawn through the signature are provided for Judge McHugh and the words, “NOT ISSUED No Orig. Affid. Pub. has been filed.” No further attempt to secure a Default has been made and the record shows a failure of Due Process of Service. Summary Judgment is inappropriate. F.

e)Plaintiff's have filed in the Court three separate hearsay Affidavits Of Amounts Due and Owing all of which claim that Chase Home Finance LLC is acting as a loan servicer on behalf of the Plaintiff. Loan Servicers are appointed under the provisions of a Pooling and Servicing Agreement [PSA] following the alleged sale in the secondary market of a pool of mortgages into a Real Estate Mortgage Investment Conduit [REMIC] and is subject to the Internal Revenue Code, IRC 860 and the provisions of the PSA. It is therefore impossible For US Bank National Association to own and hold the said Note and Mortgage as stated in their Complaint. F.

f)Plaintiff states in paragraph 4 of the Complaint, “The Original Promissory Note was lost or destroyed subsequent to Plaintiff's acquisition thereof, the exact time and manner of said loss or destruction being unknown to Plaintiff.

g)This statement conflicts with the statement contained in the Comments Of The Florida Bankers Association submitted to the Supreme Court of Florida. Case No. 09-1460, that “the reason for lost note complaints was that all Original Notes were deliberately eliminated immediately after the loan closing upon conversion to an electronic file.”

h)Plaintiff has failed to attach the Promissory Note as required by Fla.R.Civ.Pro.1.130(a), but stated to the Court that it had attached a copy [which was not so attached] despite also stating that the Note had been lost Or destroyed. Plaintiff has therefore failed to produce any “document upon which action may be brought” to demonstrate that it has a ‘Cause of Action’ in this matter. F.

i)The Original Promissory Note states in paragraph 1 “Lender is AMERICAN MORTGAGE GROUP INC.” and further states, “I understand that Lender may transfer this Note. Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the “Note Holder.” Despite claiming in the Complaint that Plaintiff owns and holds said Note by virtue of the endorsement/allonge, which it further claims to have attached, no such endorsement/allonge was so attached. Plaintiff has therefore, failed to show a Cause of Action by attaching a Promissory Note to the Complaint naming said Plaintiff as the ‘Lender’ as required by Fla. R.Civ.P. 1.130. F.

j)The Mortgage Deed filed in the Public Records of Lee County and attached to the Complaint states, “Lender is AMERICAN MORTGAGE GROUP INC. ” and further states, “MERS is a separate Corporation that is acting solely as nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument.” The Complaint states, “NORMAN CRAIG ANDERSON AND SHANNON LYNN ANDERSON executed and delivered a mortgage securing payment of same to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., AS NOMINEE FOR AMERICAN MORTGAGE GROUP INC., which mortgage was recorded on March 24, 2006, in Official Records Book 20060001247455, of the Public Records of Lee County Florida…” This is an admission that the Mortgage Deed was separated from the obligation contained in the Promissory Note Ab initio. F.

k)Plaintiff did however file an assignment of mortgage [together with the Note] - purportedly executed by MERS - in the Public Records of Lee County Florida on October 3, 2007 [over a year after its purported execution on October 2, 2006 and the filing of this action on September 27, 2006]. In common with all such MERS Assignments, this one is fraudulent and the multiple reasons for this statement will be evidenced hereinafter. F.

l)In brief, MERS has no authority to assign anything, according to its own Rules and to many Federal and State Court trial and Appellate decisions at the trial and Appeal levels. Also in common with all such fraudulent Assignments this one claims [buried in the body of the Assignment document] to have also transferred the Note [acting as a nominee for American Mortgage Group Inc.]. MERS has no standing in any Promissory Note where it has been designated as Mortgagee in a Mortgage Deed, in fact possessing almost no power to do anything other than as a ‘Nominee’ acting on behalf of the lender in respect of that Mortgage Deed only and cannot under any circumstances possess the authority to transfer any Promissory Note, including the one in this case. F.

m)The document claims to have been signed and notarized in California on October 2, 2006 as “a replacement for the Original Assignment” [also mysteriously and without further explanation ‘lost’]that was signed on an unspecified/unknown date that, coincidentally and in conformity with thousands of other similar fraudulent documents filed by this Plaintiff and its various foreclosure mill attorneys, just happens to have been prior to September 26, 2006, the day before this lawsuit was filed, to manufacture apparent compliance with Fla.R.Civ.Pro.1.130(a) by falsifying a Cause of Action against the Defendants in this case upon the date when the case was filed. F.

n)To have a cause of action in a foreclosure suit the Plaintiff must be the Holder-in-Due-Course of the Promissory Note, entitled to receive the payments from it and be the Owner of the Mortgage recorded in the Public Records prior to the date upon which suit is filed. Thus on more than one count, Plaintiff thus wrongfully and fraudulently represented to this Court that it had the legal standing to not only file the instant action, but to also foreclose on a Mortgage and Note that it does not and cannot own. F..

o)The record does not verify that Plaintiff has suffered any damages other than those directly attributable to their own deliberate and ongoing frauds. For claim of damages, to be admissible as evidence, it must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note and the person responsible for preparing and maintaining the account general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger. Plaintiff has not provided any accounting to Defendant or to the Court. To the contrary, Plaintiff appears to be using this Court to achieve a windfall of a free residential property. F

p)This purported ‘Assignment of Mortgage’ represents major and multiple frauds upon the Court,[ which are pleaded with specificity hereinafter] and which violate Florida Criminal Statutes 817.545 Mortgage Fraud, 831.01 F.S. Forgery, 83102 F.S. Uttering forged instruments, and 831.06 Fictitious Signature of Officer of Corporation by ???????? names of signatories?????? and/or other at present unknown parties. F.

q)Further violations of Florida Statutes include the failure to execute the Assignment under the Corporate Seal of MERS or to verify the identity, authority, or genuineness of the titles adopted by the alleged Vice President and Assistant Secretary of MERS [both of these individuals can probably be proven to be employees of Chase Home Finance LLC, the Loan Servicer] – they are certainly not employed by MERS .F.

r)The Summary Judgment notice that was filed in court on December 21, 2007 stated that the Plaintiff would produce the original Note [which they previously claimed to have been lost or destroyed] at the Summary Judgment Hearing. However, that Hearing did not take place. In fact, it was subsequently scheduled for Hearing in a Notice of Hearing Summary Judgment on September 29, 2008 in a Rocket Docket Hearing before Judge McHugh, but mysteriously canceled immediately after the event and filed in the Court Records at 1:52 PM on that day.

s)Defendants restate sub-paragraph c) hereinbefore. The three Affidavits of Amounts Due and Owing are inadmissible hearsay, allegedly created by employees of non-party CHASE HOME FINANCE LLC. [Chase]. The first two submitted to the Court are signed by two different persons claiming to be the Vice President of Chase, both with the responsibility for maintaining the records and both of whom are located in San Diego CA., but the third different person also making the same claims states that she is a Vice President of Chase, but in Franklin, Ohio. Further the copy document filed in the Court was drafted to be signed and notarized in San Diego, CA, but was altered to read Franklin Ohio.

t)This signor of the third Affidavit of Amounts Due and Owing, is Witney K. Cook. This person is a known ‘Robo-signor’ who is estimated to sign over 2000 of these fraudulent and hearsay affidavits on every business day, without any knowledge as to the truth or otherwise of the statements she is signing.

u)All three of these hearsay affidavits constitute a further attempt to manufacture evidence and constitute further fraud upon the Court. F.

v)Defendants were not personally served at any time. Despite being denied service of process, Plaintiffs continued to file further papers in the court and set Hearings, ex-parte, in contravention of Fla.R.Civ.Pro1.500 without ever mailing any of those papers to Defendants. This behavior has been consistent and continued to include the Notice of Hearing filed the day before Judge Carlin issued his Order for Docket Sounding.

w)Court (Judge McHugh) did not Issue Default applied for on September 15,2008 because of non publication of service, but on September 17, 2008 Plaintiff noticed a Hearing to hear Summary Judgment on September 29 2008, but cancelled the Hearing after the event on the day of the Hearing.

x)No further action was taken by Plaintiff until June 9, 2010 when it secheduled a Re-Hearing for July 19, 2010.

y)Defendants would have been completely unaware of that improper Hearing, arranged ex-parte, but for examining the Court records following their receipt of Judge Carlin’s Order to Set Docket Sounding, in which he stated that a Motion for Summary Judgment could be heard if appropriate by either party. At that time the Judge should have known that this improper Hearing had already been scheduled as it was recorded in the Court records.

z)Defendants, therefore move this Court to Strike Plaintiff’s claim and not to hear Plaintiff’s Motion for Summary Judgment at the ex parte Hearing scheduled for July 19, 2010, for all the fraudulent actions taken by them, their failure to serve due process upon Defendants and their attempts to violate the Rules of Civil Procedure. Further, Defendants ask that the Order to Set Docket Sounding issued by Judge Carlin be vacated as inappropriate to this case. F.

1. According to the Complaint filed in the Court on September 27, 2006 and the MERS Assignment of Mortgage [which purported to include the Note by the insertion of the words “together with the Note”] filed in the Public Records on 10/03/2007. U.S. Bank National Association was not in possession of the original Note or entitled to enforce it when the loss occurred. Neither was U.S. Bank National Association in possession of the Note or the Mortgage on September 27th 2006 and thus lacked Standing to bring the action ab initio.
2. Further, MERS had no Standing or Authority to execute such an Assignment of either the Mortgage or the Promissory Note and would not have possessed any Standing to take such action, even if the alleged officers of MERS who executed that Assignment were genuine vice presidents and/or assistant secretaries of that entity, which they were not.
3. Therefore, even if the purported Assignment had been executed before the Complaint was filed, which it was not, it would have been ineffective and known to be fraudulent at the time of its manufacture and subsequent filing in the public records by Plaintiff’s attorneys who have named themselves in the Complaint and subsequent papers filed in the Court. As previously stated these actions constitute violations of the specified Florida Criminal States.
4. Contrary to the Complaint, US Bank National Association did not acquire the note from a party (in this instant case, MERS) who was entitled to enforce the note. In fact, MERS was not entitled to assign the note to any party by their own admission in the Supreme Court of Nebraska. Further, MERS, by it’s own admission in the assignment, was not in possession of the original note when the loss occurred. In the instant case Plaintiff cannot prove the existence of the note in question or who the true beneficiaries of that instrument are, since the Plaintiff has stated that the original note was lost, misplaced or destroyed, and neither the Plaintiff nor MERS purporting to be the prima face Assignor of both the Mortgage and the Note when fraudulently transferring those two instruments to the Plaintiff, has in their possession or can swear to the contents of the original Note having never seen it, or the subsequent accounting or general ledger, the court can not determine who, if any party or parties has a course of action against this note. A proper chain of custody cannot be established.
5. The Mortgage filed in the public records, quoted and copied as an attachment to the Complaint is clearly not in the name of the Plaintiff, who therefore must necessarily rely upon a valid assignment, which does not exist. Further as Plaintiff has failed to produce any evidence of the existence of a Promissory Note endorsed over to its ownership [despite claiming to have attached it to the Complaint and having made subsequent promises that it would be producing an Allonge and to have purported to have taken ownership of that Note through a fraudulent MERS Assignment it lacks Standing or any Cause of Action against Defendants as a matter of law.
6. Refer to UCC 3-309 where two conditions must be met before a Court can reinstate a lost Note. 1. The party must be entitled to enforce the instrument when the loss of possession occurred OR 2.) Have directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when the loss of possession occurred. Since neither US Bank, nor MERS was entitled to enforce the instrument at that time, or even to be able to state with any accuracy the time at which the alleged loss occurred, neither of those two conditions have been met, therefore U.S. Bank National Association is NOT entitled to enforce this instrument and its request to re-instate the Note on the grounds stated, is known by them and their Attorneys to be fraudulent.
7. The assignment attached to the amended complaint is from Mortgage Electronic

Registration Systems, Inc. (hereinafter "MERS") to Plaintiff, and that assignment is completely ineffective. As nominee for the lender, MERS serves in a very limited capacity. Specifically, MERS records the mortgage and tracks ownership of the lien. Despite being named as the Mortgagee in the Security Instrument it was not designated as the Lender. Neither was it ever designated as the Note Holder. Nor was it ever entitled to receive the payments generated by that negotiable instrument – all three of which are pre requisites of Standing to foreclose on the Mortgage [Security Instrument].