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Appeal Brief after losing foreclosure case at trial
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DISTRICT COURT OF APPEAL OF FLORIDA
FOURTH DISTRICT
Case No. 4D11-2794
Mickey Metzgar, Sharon Metzgar )A/K/A Sharon J. Metzgar: et.al. ) Appellants, )
)))
Vs ) ) ))
U.S. Bank National Association, as, )Trustee for The Structured Asset )Securities Corporation Mortgage )Pass-Through Certificate 2006-EQ1, ) Appellee, ) ________________________________)
_________________________________________
INITIAL BRIEF OF APPEALANT_________________________________________
Sharon Metzgar, pro-se301 Henthorne Drive
Lake Worth, FL 33461Phone: (561) 797-6987
Fax: (561) 964-6035
1
TABLE OF CONTENTS
Pages
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
OTHER AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . 2-5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
THE PLAINTIFF, AS TRUSTEE, FAILED TO
ESTABLISH IT’S STANDING TO BRING THE
FORECLOSURE ACTION AS A MATTER OF LAW.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (filed separately)
2
TABLE OF CITATIONS
Cases Pages
Gee V. US Bank N.A, Case No. 5D10-1687, July Term 2011,
Opinion Filed September 30, 2011 . . . . . . . . . . . . . . . . . . 7
Servedio v. U.S. Bank Nat’l Ass’n
46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) . . . . . . . . . . . . 7
OTHER AUTHORITIES
Authority Pages
Florida Rules of Appellate Procedure 9.100(L) . . . . . . . . . . . . . . . . . . . 11
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Preliminary Statement
The appellant will be refereed to as “The Appellant”, “The
Defendant”, or “Sharon Metzgar”.
The appellee will be referred to as “The Appellee”, “The Plaintiff”,
“US Bank N.A.”. or “US Bank”.
All references to the record on appeal will be designated by “(R)”
followed by a colon to indicate the appropriate page number.
All references to the trial transcript will be designated by “(TT)”
followed by a colon to indicate the appropriate page number.
All references to the trial exhibits will be designated by “(TE)”
followed by a colon and # to indicate the appropriate exhibit number.
An appendix, containing Gee V. US Bank N.A., a Florida Fifth District
Court of Appeals decision reported 09/30/2011 is filed separately.
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Statement of the Case and Facts
April 24, 2006, defendant Mickey Metzgar executes a promissory
note in the amount of $193,700. He and his wife Sharon Metzgar execute a
mortgage as security for the debt. Equifirst is the originating lender while
MERS is designated as the lender’s nominee.
June 1, 2006 - 38 days after the Metzgar note and mortgage are inked
and due date of the first mortgage payment payable to Equifirst - a trust
agreement is executed by a company named “The Structure Asset Securities
Corporation”, identified in the trust agreement as “the depositor”. With this
agreement, the depositor creates the plaintiff’s investment trust by
transferring many, many thousands of notes and mortgages simultaneously
into the trust with one signature. (TT: pg. 43), (TE; #1).
The Metzgar note and mortgage are alleged among the many
thousands transferred and assigned – the very same day the first mortgage
payment is due to Equifirst. Absent from this “trust agreement” and
mortgage transfer - are Equifirst, the originating bank, and/or MERS, the
originating bank’s nominee. (TE; #1), (TE; #3 - paragraph 3).
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January 09, 2007, seven months after the trust is created, the records
custodian allegedly delivers the Metzgar note and mortgage documents to
the plaintiff’s trust sub-servicing company, Wells Fargo. (TT: 13).
April 09, 2007, David J. Stern files the foreclosure complaint on
behalf of U.S. Bank N.A. “as Trustee for” the Structured Asset Securities
Corporation Mortgage pass-through Certificate Series 2006- EQ1. (R: 1).
Count 1 paragraph 4 alleges, “said mortgage was subsequently
assigned” to the plaintiff’ trust “by virtue of an assignment to be recorded”.
A copy of the mortgage attached to the complaint however names
Equifirst as lender and MERS as nominee – not the plaintiff. The assignment
is not attached and will not be executed and recorded until over 2- years and
4-months later. The note is not attached as well. There is absolutely no
allegation, representation, or evidence of a blank allonge. Count 2 of the
complaint seeks to enforce a lost note. (R: 1).
November 20, 2008, the plaintiff motions for final summary judgment
1 year and 7 months after filing their complaint. The only show of standing
in the record for the plaintiff’s trust at this point is the allegation of an
assignment contained in count 1 paragraph 4 of the complaint. (R: 34).
September 28, 2009, the plaintiff files a Notice of Filing Assignment
of Mortgage - a David J. Stern, self-prepared “MERS assignment”. The
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effective date is backdated from its August 03, 2009 execution date to “as
of” March 29, 2007 - 10-months after Structured Asset Securities Corp.
creates and sells the plaintiff’s investment trust. (TT: 23), (TE: # 9).
The assignment is directly from Equifirst to the plaintiff’s trust,
effective 10 months after the trust is created, circumventing the trust’s
creator Structured Asset Securities Corp. revealing a broken ownership chain.
July 6, 2010, David J. Stern attempts a second summary judgment
three years and three months after filing the complaint. At this hearing the
plaintiff’s attorney, without warning or proper notice, for the first time,
produces the original “lost” promissory note. This note also names Equifirst
as lender - not the plaintiff. There is no endorsement to the note and there is
not an allonge affixed to the note – summary judgment is denied. (R: 88)
September 13, 2010, a calendar call is heard three years and six
months after the complaint is filed. After both sides announce ready, Judge
Garrison finally sets the case for trial. The plaintiff announces one witness to
appear and the trial date is set for November 15, 2010 at 10:30 am. (R: 120).
October 28, 2010, Michael K. Winston, bar #051403 of Carlton Fields
P.A. files a notice of appearance as co-counsel. He determines the case not
ready for trial and immediately moves to strike the case from the trial docket
over the appellant’s objections. (R: 147, 155).
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In addition, Mr. Winston lists numerous witnesses, seeks to strike the
appellant’s answers, sets depositions, and a flurry of other pleadings.
The Michael K. Winston of Carlton Fields Era
November 03, 2010, Mr. Winston has Judge John Hoy Strike the case
from the trial docket over the objections of the defendant. (R: 170)
January 11, 2011, Mr. Winston conducts an oral deposition of
defendant Sharon Metzgar. Without proper notice, Mr. Winston produces an
allonge to the Metzgar note during defendant Sharon Metzgar’s deposition
for the first time on January 11, 2011. The allonge is not dated, not
notarized, and endorsed in blank. The allonge is not alleged in or attached to
the original complaint. The allonge is not affixed to the original note when it
is produced for the first time during plaintiff’s summary judgment hearing
on July 06, 2010. (TT: page 11, lines 1-12 & lines 19-22) (TE: # 3).
March 31, 2011, Mr. Winston files a 68-page - third motion for
summary judgment that is denied. (R: 389-457, 496).
June 30, 2011, the trial is held. The appellant challenges US Bank’s
standing to foreclose as trustee in both her affirmative defenses and at trial.
(R: 357–368), (TT: 54-55).
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Mr. Winston wins a final judgment of foreclosure for the plaintiff.
Costs are assessed. This timely appeal follows.
ARGUMENT
THE PLAINTIFF, AS TRUSTEE, FAILED TO
ESTABLISH IT’S STANDING TO BRING THE
FORECLOSURE ACTION AS A MATTER OF LAW.
June 1, 2006 - 38 days after the Metzgar note and mortgage are inked
with Equifirst - a trust agreement is executed by a company named “The
Structure Asset Securities Corporation” identified in the trust as “the
depositor”. The depositor creates the plaintiff’s trust with this agreement by
transferring many thousands of notes and mortgages simultaneously to the
trust with one signature. (TT: pg. 43 lines 7-12) (TE; #1).
January 09, 2007, seven months after the trust is created, the records
custodian allegedly delivers the Metzgar note and mortgage documents to
the plaintiff’s trust sub-servicing company, Wells Fargo. (TT: 13).
This testimony by the plaintiff’ sub-servicer employee is in stark
contradiction to the record. The note is claimed lost on April 09, 2007 and
not produced for 3-years and 3-month after filing. The only document
attached to the complaint is the mortgage. If all the documents were
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delivered together before the complaint was filed, why were copies of the
note and allonge not produced until years later?
The appellee asks the court to believe the note was not lost in spite of
the fact it was claimed lost in the complaint and not attached as one of the 4
exhibits to the plaintiff’s summary judgment motion filed November 20,
2008 - one year and seven months after filing the complaint. If Ms Brusts’
testimony is true then the plaintiff and their attorneys purposely misled the
court by claiming a lost note count when none existed.
The appellant asks this court to adhere to the record that the note was
lost, not convenient testimony after the fact that it was not. The appellant has
spent countless hours over three years researching and defending against a
lost note count that was according to the plaintiff – fraudulent.
Even if this testimony did not contradict the record, it still fails to
place the note in the hands of Structured Asset Securities Corporation seven
months prior on June 01, 2006, the day the trust was created.
April 09, 2007, the complaint is filed and alleges a transfer of
mortgage to the plaintiff’s trust “by virtue of an assignment to be recorded”.
The mortgage attached to the complaint names Equifirst as payee and
MERS as nominee – not the plaintiff. Count 2 seeks to enforce a lost note.
(R: 1)
10
August 3, 2009, plaintiff attorney, David J. Stern prepares a MERS
assignment that is executed 2-years and 4-months after the complaint alleges.
The assignment effective date is set to “as of” March29, 2007. (TE: # 9).
The MERS assignment to the plaintiff’s trust is invalid, executed and
effective after the trust’s creation. The plaintiff testifies that the purpose of
the MERS assignment is record housekeeping. (TT: 24).
The trust agreement is ineffective in transferring the Metzgar note and
mortgage to the plaintiff’s trust on June 01, 2006 because no evidence of a
transfer exists from Equifirst to Structured Asset Securities Corp.
US Bank N.A. failed to offer any proof of Structured Asset Securities
Corporation’s authority to assign the Metzgar note and mortgage either by
possession of the note on June 01, 2006, (claimed lost in the filed complaint
04/09/2007), or by assignment as alleged in the complaint. Gee V. US Bank
N.A., Case No. 5D10-1687, Opinion Filed September 30, 2011: See also
Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010)
(explaining that plaintiff may submit evidence of assignment from payee to
plaintiff or affidavit of ownership to prove its status as holder of note);
At best, US Bank N.A., sub-servicer Wells Fargo, or even the records
custodian, apart from the trust, may have standing to foreclose by allegedly
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possessing the Metzgar mortgage documents on January 9, 2007 - well after
Structured Asset Securities Corp. created and sold the trust.
The appellant does not deny a foreclosure action exists, just that US
Bank NA, as trustee, failed to establish standing as a matter of law.
CONCLUSION
The plaintiff as trustee, (the trust), failed to establish standing to bring
this foreclosure action as a matter of law. Thirty-eight days after the Metzgar
note and mortgage are inked with Equifirst Corporation on April 24, 2006,
the Structured Asset Securities Corporation executes a trust agreement on
June 01, 2006 creating the plaintiff’s trust.
This trust agreement is ineffective in transferring the Metzgar note
and mortgage into the plaintiff’s trust because nothing in the record gives
Structured Asset Securities Corporation authority to assign the Metzgar note
and mortgage, neither evidence of possession of the lost note nor by an
assignment as alleged in the complaint. There is no record evidence of a
transfer from Equifirst to the trust’s creator and depositor, Structured Asset
Securities Corporation, revealing a missing link in the ownership chain.
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The MERS assignment to the plaintiff’s trust is invalid, executed and
effective after the trust is created and sold.
At best, US Bank N.A., apart from the trust, may have standing to
foreclose by alleging delivery of the Metzgar mortgage documents from the
records custodian to sub-servicer Wells Fargo on January 9, 2007 - well after
Structured Asset Securities Corporation created an investment trust.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Initial Brief has
been sent by certified mail, return receipt requested, to the following:
1. Michael K. Winston, Esquire, Bar# 051403, 525 Okeechobee Bld,
#1200, West Palm Beach, FL 33401
2. Elisabeth Amanda Romfh, Esquire, Bar# 073149, 525 Okeechobee
Blvd, #1200, West Palm Beach, FL 33401
Done this _____ day of October 2011.
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__________________________________
Sharon Metzgar, pro-se301 Henthorne Drive
Lake Worth, FL 33461Phone: (561) 797-6987Fax: (561) 964-6035
CETIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the New Times Roman
14-point font size, spacing, and all other type requirements set forth in the
Florida Rules of Appellate Procedure 9.100(L).
__________________________________
Sharon Metzgar, pro-se301 Henthorne Drive
Lake Worth, FL 33461
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