IN THE CRCUIT COURT OF THE TWELFTH JUDICAL CRCUIT

IN AND FOR SARASOTA COUNTY, FLORIDA

DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS INDENTURE TRUSTEE
UNDER THE INDEENTURE RELATING TO
IMH ASSETS CORP., COLLATERAUZED
ASSET -BACKED BONDS, SERIES Z004-10
Plaintiff,
vs.
ELLEN LAPERRJERE,
Defendant.
CASE NO. ZOO8 CA OUS87 NC
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ORDER ON DEFENDANT'S MOnON TO SET ASIDE FOREaOSURE JUDGMENT
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This case was heard on defendant's motion to set aside the foreclosure judgment entered in this
case on April 18, 2011. The court being fully advised in the premises, finds and decides as follows:
On October 26, 2004, defendant executed and delivered an Adjustable Rate Note to IMPAC
FUNDING CORPORATION DBA IMPAC LENDING GROUP. The note is secured by a mortgage. The
mortgagee is Mortgage Electronic Registration Systems, Inc. (MERS), as nominee of IMPAC. Copies of
the note and mortgage are attached to this order for ease of reference.
Plaintiff sued defendant seeking foreclosure of the mortgage in 2008 and received the
foreclosure judgment at issue on April 18, 2011.
Defendant attacks the judgment on two fronts, which this court finds to be interrelated and
interdependent. One basis for attack is this court's subject matter Jurisdiction. The court rejects this
argument without further comment.
Defendant argues that plaintiff did not have standing to sue when this action was filed. She also
argues that plaintiff committed a fraud on this court when it alleged that plaintiff and its original lawyer,
included in its complaint that plaintiff was the owner and holder of the note and mortgage by virtue of
aSSignment. The record supports defendant's arguments.
The court finds that no assignment of the note and/or mortgage in favor of the plaintiff had
been made prior to the filing of the complaint in this case. In fact, the first effort at assignment did not
take place until 2010. Plaintiff attempted to cure this pleading discrepancy in it affidavit In support of
motion for summary judgment. To no avail. The affidavit merely highlights the complaint's lack of
candor on this point. Furthermore, the affiant was not the proper witness to establish the authenticity
of plaintiffs records.
Plaintiff argues that the note was in its posseSSion, i.e., it was the holder of the note, by virtue of
an endorsement in blank stamped on the back of the note. Therefore, plaintiff argues it is the real party
in interest entitled to pursue this action. Plaintiff might be correct if, as plaintiff argues, this was a
matter governed by Section 673.1041(1), Florida Statutes. However, 673.1041(1)(c), Florida Statutes,
only applies to negotiable instruments. This note in issue is not a negotiable instrument. The subject
note contains numerous undertakings or instructions to do acts in addition to the payment of money.
For example, the note requires the borrower to notice of prepayment and prohibits prepayment if the
borrower has not made all monthly payments under the note. Likewise, the note refers to undertakings
set forth in the mortgage which are in addition to the payment of money. Plaintiff likely takes the
pOSition that this mere reference does not create undertakings in addition to the payment of money.
Nonsensel It is clear that Section 11 of the note is intended for one purpose, and one purpose only - to
impress upon the borrower that she is undertaking acts in addition to the payment of money.
The note in this case is a non-negotiable instrument. As such, it must be transferred by sale or
assignment, not by endorsement in blank. No evidence of sale or assignment is offered that would save
this plaintiff from the long-settled law of Florida that foreclosure must be brought by the owner and
holder of the note and mortgage.
Plaintiff lacked standing to file this action against defendant.
Plaintiff and its counsel, David J. Stern, committed a fraud upon this court at the time of filing
the complaint in this case.
IT IS THEREFORE ORDEREDED that the foreclosure judgment entered in this case on April 18,
2011, is vacated and set aside.
IT IS FURTHER ORDERED that defendant is entitled to recover reasonable attorney fees and
taxable costs incurred in the prosecution of defendant's motion to set aside foreclosure judgment. The
court reseNes jurisdiction to determine the amount of attorney fees and costs to be awarded.
ORDERED at Sarasota, Florida this 10
th
day of December, 2012.
Copies to:
Albertelli law
Ashley Arenas, Esquire
Sandy Levitt, Esquire
Keith A. Fousek, Esquire
Lari J. LaPerriere