Frivolous Pleading Letter
(Florida)
William Jeff Barnes, Esq.
July 2, 2008
Re: Wells Fargo Bank, N.A. v. Defendant (Key West, Florida):
FORMAL STATUTORY DEMAND TO DISMISS
FORECLOSURE ACTION WITH PREJUDICE, CLEAR TITLE TO REAL PROPERTY, REFUND MONIES PAID, AND FOR PAYMENT OF ATTORNEYS’ FEES AND COSTS
Dear Ms. Solomon:
This letter is being provided to you, the Law Offices of David J. Stern, P.A., and your client Wells Fargo Bank, N.A.(Plaintiff in the Action identified herein) as formal notice, pursuant to the matters herein and Fla.Stat. sec. 57.105, of this Firm’s client Defendant demand that you immediately and forthwith dismiss, with prejudice, that certain civil action styled Wells Fargo Bank, N.A. v. Defendant et al., 16th Judicial Circuit Court Case No. 2007-CA-1120-K (Key West, Florida, hereafter referred to as the “Action”); to provide clear title to the real property the subject of the Action; for refund of all monies paid by Defendant incident to the alleged “loan” the subject of the Action; and for payment of attorneys’ fees and costs which are awardable under various Federal and state statutes violated by your filing of the Action.
This letter is also being sent as formal notice of Defendant’s Motion for Sanctions (copy attached hereto) which will be filed and set for hearing unless, pursuant to Fla.Stat. sec. 57.105(4), within twenty-one (21) days of today, Defendant’s demands as set forth herein are not complied with in writing confirmed by fax receipt, by this Firm, of the July 2, 2008 57.105 demand and notice to Maria Solomon, Esq. re: Wells Fargo Bank, N.A. v. Defendant et al.,necessary documents to legally effect the demands made herein.
The facts supporting this demand and the attached Motion are as follows, which are admissions by you, as an agent of the Law Offices of David J. Stern, P.A., in the Complaint which you filed:
(a) On or about August 22, 2007, you, as an agent and attorney of the Law Offices of David J. Stern, P.A., caused a civil action for foreclosure and to “enforce loan documents” to be filed in the 16th Judicial Circuit in and for Monroe County, Florida, which has been assigned case number 2007-CA-1120-K;
(b) In paragraph “5.” of Count I of the Complaint, you affirmatively represent to the Court that “The Plaintiff owns and holds the Note and Mortgage”;
(d) In paragraph “20″ of Count II, you affirmatively represent to the Court that “The Plaintiff is not presently in possession of the Note and Mortgage” and “the Plaintiff cannot reasonably obtain possession of the Note and Mortgage because THEIR whereabouts cannot be determined (original emphasis):
(e) In paragraph “22″ of Count II, you affirmatively represent to the Court that “The Plaintiff will agree to the entry of a Final Judgment of Foreclosure wherein it will be required to indemnify and hold harmless the Defendant(s) [sic] Defendant, from any loss they [sic] may occur by reason of a claim by another person to enforce the lost Note and Mortgage.”;
(f) The Action thus inconsistently but affirmatively alleges, in Count I, that “Plaintiff owns and holds the Note and Mortgage” when in fact the admissions in Count II demonstrate, by the allegations of paragraphs “20″ and “22″ of the Complaint,the Plaintiff DOES NOT and CANNOT legally establish possession or ownership of the Note or the Mortgage and that same is/are in the possession of an unknown party or parties;
(g) A copy of the Note is not even attached to the Complaint (only an alleged “ledger of loan”);
(h) By virtue of the admissions of the Plaintiff in paragraphs “20″, “21″, and “22″ of the Complaint, the Plaintiff has actual knowledge that it never, at any time material, had possession of either the mortgage or the note as same were sold, assigned, or transferred as part of the single-transaction securitization process which resulted in the subject mortgage and/or note being sold as
(i) that the Plaintiff cannot establish that the subject note or mortgage is owned or controlled by the Plaintiff “indenture trustee” for unnamed holders of a series of asset-backed bonds (a copy of which are not even attached to the Complaint);
(j) As a direct and proximate result of the transaction referred to in paragraph “h” above, the Plaintiff does not and cannot establish legal standing to even institute a foreclosure action;
(k) As such, the allegation by the Plaintiff in paragraph “5″ of the Complaint constitutes matters which are completely devoid of factual or legal support and are thus “frivilous” within the meaning of Fla.Stat. sec. 57.105;
(l) As the primary and threshold issue of legal standing to institute the Action cannot be satisfied (which was known to you, the Law Offices of David J. Stern, P.A., and the Plaintiff at the time that the Action was instituted), the Action is a patently frivilous claim within the meaning of Fla.Stat. sec 57.105 and the filing and prosecution thereof constitutes a fraud upon the Court.
Your client and your Firm are thus charged with actual notice of the filing of an frivilous claim, as you, your client, and the Law Offices of David J. Stern, P.A. knew or should have known that the Action was both not supported by the material (and record) facts necessary to establish the claim for foreclosure and would not (and could not) be supported by the application of then-existing law to the material (and record) facts.
As such, this Firm has been directed to file and set for hearing, after the expiration of twenty-one (21) days from today (that being Thursday, July 24, 2008), the attached Motion for Sanctions and to seek attorneys’ fees from both your client and your Firm if the demands set forth herein for immediate dismissal of the Action with Prejudice, providing of clear title to the property the subject of the action, refund of all monies paid by Defendant in connection with the original “loan” the subject of the Action, and payment of all attorneys’ fees and costs associated with this demand are not complied with in writing by the close of business (5:00 p.m.) Wednesday, July 23, 2008.
Sincerely,
Jeff Barnes, Esq.
WJB/bhs
FORECLOSURE ACTION WITH PREJUDICE,
Dear Ms. Solomon:
This letter is being provided to you, the Law Offices of David J. Stern, P.A., and your client Wells Fargo Bank, N.A.(Plaintiff in the Action identified herein) as formal notice, pursuant to the matters herein and Fla.Stat. sec. 57.105, of this Firm’s client Defendant demand that you immediately and forthwith dismiss, with prejudice, that certain civil action styled Wells Fargo Bank, N.A. v. Defendant et al., 16th Judicial Circuit Court Case No. 2007-CA-1120-K (Key West, Florida, hereafter referred to as the “Action”); to provide clear title to the real property the subject of the Action; for refund of all monies paid by Defendant incident to the alleged “loan” the subject of the Action; and for payment of attorneys’ fees and costs which are awardable under various Federal and state statutes violated by your filing of the Action.
This letter is also being sent as formal notice of Defendant’s Motion for Sanctions (copy attached hereto) which will be filed and set for hearing unless, pursuant to Fla.Stat. sec. 57.105(4), within twenty-one (21) days of today, Defendant’s demands as set forth herein are not complied with in writing confirmed by fax receipt, by this Firm, of the July 2, 2008 57.105 demand and notice to Maria Solomon, Esq. re: Wells Fargo Bank, N.A. v. Defendant et al.,necessary documents to legally effect the demands made herein.
The facts supporting this demand and the attached Motion are as follows, which are admissions by you, as an agent of the Law Offices of David J. Stern, P.A., in the Complaint which you filed:
(a) On or about August 22, 2007, you, as an agent and attorney of the Law Offices of David J. Stern, P.A., caused a civil action for foreclosure and to “enforce loan documents” to be filed in the 16th Judicial Circuit in and for Monroe County, Florida, which has been assigned case number 2007-CA-1120-K;
(b) In paragraph “5.” of Count I of the Complaint, you affirmatively represent to the Court that “The Plaintiff owns and holds the Note and Mortgage”;
(c) In paragraph “4″ of Count I, you affirmatively represent to the Court that the mortgage was “subsequently” assigned to the Plaintiff “by virtue of an assignment to be recorded” (that being some time in the future);
(d) In paragraph “20″ of Count II, you affirmatively represent to the Court that “The Plaintiff is not presently in possession of the Note and Mortgage” and “the Plaintiff cannot reasonably obtain possession of the Note and Mortgage because THEIR whereabouts cannot be determined (original emphasis):
(e) In paragraph “22″ of Count II, you affirmatively represent to the Court that “The Plaintiff will agree to the entry of a Final Judgment of Foreclosure wherein it will be required to indemnify and hold harmless the Defendant(s) [sic] Defendant, from any loss they [sic] may occur by reason of a claim by another person to enforce the lost Note and Mortgage.”;
(f) The Action thus inconsistently but affirmatively alleges, in Count I, that “Plaintiff owns and holds the Note and Mortgage” when in fact the admissions in Count II demonstrate, by the allegations of paragraphs “20″ and “22″ of the Complaint,the Plaintiff DOES NOT and CANNOT legally establish possession or ownership of the Note or the Mortgage and that same is/are in the possession of an unknown party or parties;
(g) A copy of the Note is not even attached to the Complaint (only an alleged “ledger of loan”);
(h) By virtue of the admissions of the Plaintiff in paragraphs “20″, “21″, and “22″ of the Complaint, the Plaintiff has actual knowledge that it never, at any time material, had possession of either the mortgage or the note as same were sold, assigned, or transferred as part of the single-transaction securitization process which resulted in the subject mortgage and/or note being sold as
parceled obligations and becoming part of one or more tranches within a special investment vehicle;
(i) that the Plaintiff cannot establish that the subject note or mortgage is owned or controlled by the Plaintiff “indenture trustee” for unnamed holders of a series of asset-backed bonds (a copy of which are not even attached to the Complaint);
(j) As a direct and proximate result of the transaction referred to in paragraph “h” above, the Plaintiff does not and cannot establish legal standing to even institute a foreclosure action;
(k) As such, the allegation by the Plaintiff in paragraph “5″ of the Complaint constitutes matters which are completely devoid of factual or legal support and are thus “frivilous” within the meaning of Fla.Stat. sec. 57.105;
(l) As the primary and threshold issue of legal standing to institute the Action cannot be satisfied (which was known to you, the Law Offices of David J. Stern, P.A., and the Plaintiff at the time that the Action was instituted), the Action is a patently frivilous claim within the meaning of Fla.Stat. sec 57.105 and the filing and prosecution thereof constitutes a fraud upon the Court.
Your client and your Firm are thus charged with actual notice of the filing of an frivilous claim, as you, your client, and the Law Offices of David J. Stern, P.A. knew or should have known that the Action was both not supported by the material (and record) facts necessary to establish the claim for foreclosure and would not (and could not) be supported by the application of then-existing law to the material (and record) facts.
As such, this Firm has been directed to file and set for hearing, after the expiration of twenty-one (21) days from today (that being Thursday, July 24, 2008), the attached Motion for Sanctions and to seek attorneys’ fees from both your client and your Firm if the demands set forth herein for immediate dismissal of the Action with Prejudice, providing of clear title to the property the subject of the action, refund of all monies paid by Defendant in connection with the original “loan” the subject of the Action, and payment of all attorneys’ fees and costs associated with this demand are not complied with in writing by the close of business (5:00 p.m.) Wednesday, July 23, 2008.
Sincerely,
Jeff Barnes, Esq.
WJB/bhs
attachment
(enclosed with mailed original)
copy to: Defendant (w/attachment)
What was the out come of this demand letter and or subsequent hearing?
ReplyDeleteThank you,