Professional Documents
Culture Documents
FLORIDA
v.
Defendant’s,
________________________________________________________/
Comes now, The Defendant’s Catherine F. Velardo and Nelson J Velardo, and
pursuant to Florida Rules of Civil Procedure 1 .100(b), 1 .1 40(b)( I )(6) and (h)(2) and 1
.210(a) and 1.540(b)(3) and (b)(4) requests this Court to Cancel/Postpone the sale date of
July 1, 2010, Vacate the Final Judgment and Request an Evidentiary Hearing Based
Upon Fraud on the Court and the Courts lack of jurisdiction to enforce this foreclosure
action and as grounds thereof state:
1. The Plaintiff, US BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR MASTR
ASSET BACKED SECURITIES TRUST 2006-FRE1, filed their complaint on
July19, 2009, without proper standing to do so, and made material misrepresentations
in their pleadings.
2. A fraudulent assignment was attached to the Complaint that was not recorded until
August 21, 2006, or approximately one month and seven days after Plaintiff filed the
foreclosure action.
The Depositor, concurrently with the execution and delivery hereof, does hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse, for the benefit of
the Certificate holders, all the right, title and interest of the Depositor, including any
security interest therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, the rights of the Depositor under the
Assignment Agreement, payments made to the Trust Administrator by the Swap
Administrator under the Swap Administration Agreement and the Swap Account and all
other assets included or to be included in REMIC I. Such assignment includes all interest
and principal received by the Depositor or the Servicer on or with respect to the
Mortgage Loans (other than payments of principal and interest due on such Mortgage
Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an
executed original Assignment Agreement. (The cutoff date of MASTR ASSET
BACKED SECURITIES TRUST 2006 FRE1 was February 1, 2006 as stated in the
Mortgage Loan Pooling and Servicing Agreement FRE1 page 206 as Exhibit A-1,
yet, in the instant case, the assignment was purported to have been executed on July
1, 2010 and shows no chain of assignments, endorsements nor true sales throughout
the pass-through certificates)
In connection with such transfer and assignment, the Depositor does hereby deliver to,
and deposit with, the Custodian (on behalf of the Trustee), with respect the related
Mortgage Loans, the following documents or instruments with respect to each Mortgage
Loan so transferred and assigned (a “Mortgage File”):
(i) the original Mortgage Note, endorsed in blank or in the following form: “Pay to the
order of U.S. Bank National Association, as Trustee under the applicable agreement,
Defendant’s (Velardo’s) Motion To Cancel Sale Page 6 of 16
without recourse,” with all prior and intervening endorsements showing a complete
chain of endorsement from the Originator to the Person so endorsing to the Trustee;
---(Emphasis Added, THE ORIGINATOR CANNOT ENDORSE DIRECTLY TO THE
TRUSTEE! this is not only a fact in the Pooling and Servicing Agreement, but is also a
legal requirement from the Internal Revenue Code governing the REMIC status tax
exemption these investments vehicles benefited from, yet the Velardo Assignment showed
no chain of endorsement through the pass through in violation of both IRS laws and the
plaintiffs own Pooling and Servicing Agreement)---
(ii) the original Mortgage, noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is a MOM Loan, with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon; (Emphasis Added)
(iii) unless the Mortgage Loan is registered on the MERS® System, an original
Assignment in blank;
(iv) the original recorded Assignment or Assignments showing a complete chain of
assignment from the Originator to the Person assigning the Mortgage to the Trustee
(or to MERS, if the Mortgage Loan is registered on the MERS® System and noting
the presence of the MIN) as contemplated by the immediately preceding clause
(iii); ” (Emphasis Added)
27. As emphasized above in items (i), (ii), (iii) and (iv) for a mortgage loan to be included
into this trust it MUST include a recorded Assignment (Which it never had!) as well
as an Original Note, both endorsed in blank or "Pay to the order of US Bank National
Association, as trustee with a full chain of endorsement from originator to trustee
". Under the Plaintiffs own filed bogus documents, their assignment was not executed
until July 1, 2006 and not recorded until August 21, 2006, well after the loan was
supposedly in default and well after the REMIC I cutoff date of February 1, 2006, in
violation of their own Pooling and Servicing Agreement.
37. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent part
Every action may be prosecuted in the name of the real party in interest, but a
personal representative, administrator, guardian, trustee of an express trust, a party
with whom or in whose name a contract has been made for the benefit of another, or a
party expressly authorized by statute may sue in that person's own name without
joining the party for whose benefit the action is brought...The Plaintiff, US Bank,
N.A., meets none of these standing and pleading criteria and seems to be acting ultra
vires here..
38. No Florida case holds that a separate entity can maintain suit on a note payable to
another entity unless the requirements of Rule 1.210(a) of the Florida Rules of Civil
Procedure and applicable Florida law are met. Corcoran v. Brody, 347 So.2d 689 (Fl.
4th DCA 1977).
ii. Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial or rehearing;
“The rule does not limit the power of a court to entertain an independent action to
relieve a party from a judgment, decree, order or proceeding or to set aside a
judgment or decree for fraud upon the court”.
609.02 “Filing a declaration of trust.--Every such organization organized for the purpose of
transacting business in this state, or organized in this state for the purpose of
transacting business elsewhere, which intends to sell or offer for sale any units, shares,
contracts, notes, bonds, mortgages, oil or mineral leases or other security of such
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 association
proposes to conduct its business, which copy shall be sworn to, as being a true and
correct copy, by the chair of the board of trustees named in such declaration of trust.
When such copy shall have been filed with the Department of State it shall constitute
public notice as to the purposes and manner of the business to be engaged in by such
association. The Department of State, prior to the issuance of the certificate by it, shall
collect from the said association a filing fee of $350, which fee shall be paid by it into the
general fund of the state.”
“Upon the filing of the copy of the declaration of trust and the payment of the filing fee,
in compliance with s. 609.02, the Department of State shall issue to the trustees named
in the said declaration of trust a certificate showing that such declaration of trust has
been duly filed in its office; whereupon, such association shall be authorized to transact
business in this state; provided that all other applicable laws have been complied with”.
Section 609.3 id.
57. The trust, before offering securities in the form of certificates to investors, was
required to file with the Secretary of State a true and correct copy of the Declaration
of Trust under which the trust proposes to conduct its business.
58. The trust has failed to file its declaration of trust, not paid the $350.00 fee and not
obtained a certificate from the Department of State and yet commenced to transact its
business in Florida. Accordingly, the Trust lacks standing to have this foreclosure
action enforced in the courts of Florida and the persons operating the trust in violation
of Chapter 609 have committed a third degree felony under Florida law. Section
609.06
The Defendants in this case are acting Pro-se yet will be acquiring legal counsel for the
hearing of this motion and any further proceedings related to this case defense and
prosecution.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Motion was forwarded by US Mail
to: Michelle K Mason Law Offices of David J Stern 900 South Pine Island Road Suite
400 Plantation, FL 33324-3920 and via e-mail Mail to mmason@dstern.com on the 10th
day of June 2010.
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