MTD Fraud On Court - JPMOrgan and Shapiro

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA
JP MORGAN CHASE BANK, N.A., Plaintiff, Vs. DAVID A. BURGAN a/k/a DAVE BURGAN and CINDY L. BURGAN a/k/a CINDY BURGAN, Husband and Wife, et al, Defendant(s), / MOTION TO DISMISS WITH PREJUDICE BASED UPON PLAINITFFS SENTIENT SCHEME TO DEFRAUD THIS COURT Defendants, David and Cindy Burgan, by and through their undersigned attorney, and move to dismiss Plaintiffs action with prejudice. As grounds therefore, Defendants would show that this more than four year old case is permeated by fraud, misrepresentation, or other misconduct. See Exhibit A the docket for this case. The Plaintiff had no standing to file this action in the first place, or to maintain this action. The Plaintiff likewise has no standing to seek further Amendments to its Complaint which is based upon fraud. The Court may not add parties to a case in which it is without jurisdiction. FACTS 1. On February 16, 2012, almost three years into this litigation, former counsel for JPMC, Shapiro & Fishman LLP, filed a Motion to Substitute Party Plaintiff pursuant to Florida Rule of Civil Procedure 1.260(c) from JP Morgan Chase Bank (JPMC) to Wells Fargo Bank, N.A. as trustee for Freddie Mac Securities REMIC Trust 2005-S001 (Freddie Mac Trust). The Motion stated that although JPMC had the right to enforce the note it was at all relevant times owned by the Freddie Mac trust. It further stated that JPMC had transferred constructive possession of the subject note to the Freddie Mac Trust which now had the right to enforce the note. See Exhibit B. 2. On December 4, 2012 JPMCc current counsel filed a Motion to Amend its First Amended Complaint. JPMC claimed that while preparing its response to Defendants Motion for Final Summary Judgment it discovered a factual error in the Complaint and the Amended Complaint . The error is that JPMC is not the owner of the note but is the holder of the Note and the servicer of the Loan. In addition JPMC discovered that the original Promissory Note is lost. See, Exhibit C. CASE NO.: 2009 CA 001377
Mack Law Firm Chartered 2022 Placida Road Englewood Florida 34224 -5204 (941) 475 7966 T (941) 475 -0729 F www.MackLawFirm.org This pleading serves as designation of email addresses pursuant to Fla. R. Jud. Admin. 2.516, effective September 1, 2012, and to In Re: Email Service Rule No. SC 102101 (Second Corrected Opinion issued June 21, 2012)
3. The Plaintiffs Motion to Amend fails to attach any documents to support JPMC allegations that: 1) the Freddie Mac trust is the owner of the note and mortgage in this cause, 2) that JPMC is the servicer. Counsel for JPMC filed a Notice of Filing an Exhibit to said Motion on February 27, 2013 consisting solely of the proposed Second Amended Complaint with copies of a Note, Mortgage, Adjustable Rate Rider, Planned Unit Rider and Prepayment Penalty Addendum. See, Exhibit D. 4. Notably the proposed Second Amended Complaint states in 6 that the subject Note and Mortgage were transferred to the Freddie Mac Trust on August 22, 2005. 5. There is no rule of procedure that permits JPMC, a Plaintiff that never had standing to pursue a foreclosure, to substitute another stranger to the action. 6. Clearly WaMu divested itself of any interest in the original mortgage in 2005. Therefore, the Burgan Note and Mortgage was not as asset of WaMu at the time of its receivership so JPMC has no authority to transfer, assign or further convey any interest in the Note and Mortgage to the Freddie Mac trust. 7. A review of all copies of images of the alleged Note at issue in this case reveals that there are no indorsements or Allonges or any evidence of negotiation. 8. Finally, Shapiro & Fishman created the Assignment of Mortgage from JPMC to the Freddie Mac trust on or about November 3, 2010. This document is recorded at Instrument # 1985031 in the Charlotte County Official Records. It is believed and alleged that the creation and violate Florida Statutes 817.54. Obtaining of mortgage, mortgage note, promissory note, etc., by false representation; 831.06 entitled Fictitious signature of officer of corporation 831.01 Forgery and 831.02. Uttering forged instruments. ARGUMENT 9. JPMC, as successor to WaMU, never owned and held the promissory note and mortgage in question because WaMu had sold it to and therefore it never was entitled to maintain this foreclosure action. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975). 10. The original lender was "Washington Mutual FA." The allegations of material fact made by JPMC claiming that it is the legal and/or equitable owner and holder of the subject note based upon its September 25, 2008 purchase of WaMus assets is unsupported by its
operative pleadings. The Purchase and Assumption Agreement is not self-authenticating even if it was attached as exhibit to the First Amended Complaint. Green v. JPMC, Case No. 5D12- 870 (Fla. 5th DCA 2013). When exhibits are inconsistent with allegations of material fact as to whom the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983). 11. The court may not add parties to the litigation when it is without jurisdiction in the case. See, General Capital Corp. v. Tel Service Co., 212 So.2d 369, 381-382 (Fla. 2d DCA 1968). STANDING AND RIGHT TO SUE
12. 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... JPMC meets none of these criteria. 13. Standing depends on whether a party has a sufficient stake in a justiciable controversy, whether a legally cognizable interest would be affected by the outcome of the litigation. Nedeau v Gallagher, 851 So.2d 214, (Fla. l 5t DCA, 2003). 14. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. This entitlement to prosecute a claim in Florida courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corporation v Nopal Lines, Limited, et al, 462 So. 2d 1178, (Fla. 3rd DCA1985). 15. 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. See Corcoran v. Brody, 347 So. 2d 689 (Fla. 4th DCA 1977).
16. "The determination of standing to sue concerns a court's exercise of jurisdiction to hear and decide the cause pled by a particular party." Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So.2d 1350, 1352 (Fla. 1993). FRAUD ON THE COURT
17. In this case, the court is without jurisdiction because JPMC has perpetrated a fraud upon the court in this action by filing a complaint that contains untrue and sham allegations that JPMC is the true owner of the claim sued upon and that it is the real party in interest to pursue this residential foreclosure action. 18. It is clear from JPMCs Motion to Substitute Party Plaintiff and its Motion to Amend First Amended Complaint that a person other than JPMC is the true owner of the claim sued upon and that JPMC is not and never was the real party in interest and is not and cannot be shown to be the proper authorized party to bring this action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985). 19. "A plea is considered 'sham' when it is palpably or inherently false, and from the plain or conceded facts in the case, must have been known to the party interposing it to be untrue." In this case, Shapiro & Fishman LLP knew that WAMU did not own the beneficial interest in the subject note on September 25, 2008 when it was taken into receivership by the FDIC. It also knew that JPMC had no standing to file the pending foreclosure suit. See Rhea v. Hackney, 157 So. 190, 193 (Fla. 1934); Miller v. Nelms, 966 So.2d 437,440 (Fla. 2d DCA 2007). 20. The integrity of the civil litigation process depends on the truthful disclosure of facts. Metropolitan Dade County v. Martinson, 736 So.2d 794 (Fla. 3rd DCA 1999); Andrews v. Palmas De Majorca Condo, 898 So.2d 1066 Fla. 5th DCA 2005). 21. A trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court. Piunno v. R. F. Concrete Constr., Inc., 904 So. 2d 658 (Fla. 4th DCA 2005); Arzuman v. Saud, 843 So.2d 950 (Fla. 4th DCA 2003). 22. A party guilty of fraud or misconduct in the prosecution of a civil proceeding should not be permitted to continue to employ the judiciary to achieve its ends. Andrews v. Palmas De Majorca Condominium, 898 So.2d 1066 (Fla. 5th DCA 2005). 23. JPMCs lack of ownership of the promissory note in this case goes to the heart of its claim of standing, permeates the entire proceeding, and subverts the integrity of the action. Metropolitan Dade County v. Martinsen, 736 So.2d 794 (Fla. 3rd DCA 1999).
24. This Court has the inherent power and authority by summary means to prevent an abuse of its processes, and to peremptorily dispose of a cause of action that was frivolous or wholly vexatious, and this power to dismiss an action "may be predicated on matters dehors the pleadings if duly established before the court." O'Berry v. Pearson, 186 So. 430 (1939). 25. "Pleading a matter known by the party to be false for the purpose of delay or other unworthy object, has always been considered a very culpable abuse against justice and at common law was subject to censure and summary setting aside with costs." Rhea v. Hackney, 157 So. 190, 193 (Fla. 1934). 26. It is appropriate for the trial court to dismiss an action based on fraud, where there is a blatant showing of fraud, pretense, collusion, or other similar wrongdoing. Distefano v. State Farm Mutual Automobile Ins. Co., 846 So. 2d 572, 574 (Fla. 1st DCA 2003). 27. A party guilty of fraud or misconduct in the prosecution of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve its ends. "(I)t is offensive to our sense of right that a wrongdoer be allowed to exploit his wrongs to the injury of another and to the profit of himself." Carter v. Carter, 88 So.2d 153, 157 (Fla.1956). 28. "(W)here a party lies about matters pertinent to his own claim, or a portion of it, and perpetrates a fraud that permeates the entire proceeding, dismissal of the whole case is proper." Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998); Kornblum v. Schneider, 609 So.2d 138,139 (Fla. 4th DCA 1992) "(O)ne who engages in a fraudulent scheme forfeits all right to the prosecution of a lawsuit." Horjales v. Loeb, 291 So.2d 92,93 (Fla. 3rd DCA 1974). 29. "The sanction of dismissal with prejudice due to fraud upon the court has long been an available remedy for a party's misconduct in the litigation process." Andrews v. Palmas de Majorca Condominium, 898 So.2d 1066,1069 (Fla. 5th DCA 2005). 30. Trial courts have "the right and obligation to deter fraudulent claims from proceeding in court." Cherubino v. Fenstersheib & Fox, P.A., 925 So.2d 1066, 1068 (Fla.4th DCA 2006). 31. Defendants seek a dismissal of the Plaintiffs Complaint based on fraud on the court and under the circumstances of this case, "a formal evidentiary hearing on the motion to dismiss, as well as permissible discovery prior to the hearing, is required." Dynasty Express Corporation v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996). 32. JPMC does not own the note and fails to establish in any of its papers or filings that it owned or held the mortgage or the note at the commencement of this action.
33. The Defendants have retained the services of The Mack Law Firm Chartered to assist them in the defense of this action and request an award of reasonable attorney's fees and costs. WHEREFORE, Defendants request the Court dismiss Plaintiff's Amended Complaint in this action with prejudice; discharge the Lis Pendens on the subject property; award these Defendants attorney's fees, costs and all other relief, which is just and proper.
_____________________ JACQULYN MACK, ESQUIRE MACK LAW FIRM CHARTERED jacqulyn @MackLawFirm.org Primary: eservice1@macklawfirm.org Secondary: eservice2@macklawfirm.org 2022 Placida Road Englewood, Florida 34224-5204 (941) 475-7966 and 27 Fletcher Ave Sarasota, FL 34237-6017 (941) 893-6389 Attorney for Burgan Florida Bar No.: 0134902 CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing has been furnished by eservice to Stephanie Mcalister, Esquire, c/o Wargo & French, LLP, flservice1@wargofrench.com primary and fl-service2@wargofrench.com secondary, and Jonathan Meisels, Esq., j.meisels@rasflaw.com primary and Joan Wadler, Esq., jwadler@kasslaw.com - primary on this 11th day of April, 2013.
JACQULYN MACK

MTD Fraud On Court - JPMOrgan and Shapiro

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA

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