IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND HERNANDO COUNTY, FLORIDA A CIVIL ACTION CASE NO.

: H27-CA-2008-000819 LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES ILLC, ASSET-BACKED CERTIFICATES, SERIES 2006-HE9, Plaintiff, VS. PATRICK PUENTES; et al. ______Defendants).________________________/ DEFENDANT PATRICK PUENTES' EMERGENCY MOTION TO STOP FORECLOSURE SALE. TO VACATE FORECLOSURE COMPLAINT FOR FRAUD ON THE COURT AND MOTION TO STRIKE FINAL JUDGMENT OF FORECLOSURE AND ORDER SETTING FORECLOSURE SALE AND MEMORANDUM OF LAW COMES NOW, the Defendant PATRICK PUENTES, by and through his undersigned counsel and files this Motion and Memorandum of Law in the above-styled action and as grounds therefore requests the Court to Dismiss this action with prejudice pursuant to Rules 1.100(b), 1.140(b)( 1 )(6) and (h) (2) and 1.210(a) and 1.540(b)of the Florida Rules of Civil Procedure, and states: 1. The Plaintiff filed their complaint on March 13,2008, at the time the Plaintiff filed their complaint they did not have standing and made material misrepresentations in their pleadings. 2. Further the Plaintiff is a Trustee and does not and cannot own the mortgage as they are acting on behalf of the investment trust in this case. 3. Several layers of fraud on the Court occurred in this instance and justice requires that the Court set the order setting sale date aside immediately and vacate the Final Judgment of Foreclosure dated December 12,2008 which has listed a sale date of January 23,2009. 4. In addition to not having standing, the plaintiff falsely alleged that "the original promissory note was lost or destroyed subsequent to plaintiffs acquisition thereof and that "plaintiff was in possession of the promissory note and was entitled to enforce it when loss of possession occurred" when in actuality they did not have an interest in the paper at the time of bringing this lawsuit and a purported assignment occurred after the lawsuit was filed.

5. The March 17, 2008 assignment of mortgage (See Exhibit "A") from Mortgage Electronic Registration Systems, Incorporated as Nominee for Encore Credit Corporation d/b/a ECC Credit Corporation of Florida (MERS) to Plaintiff Lasalle Bank National Association, as Trustee for Certificateholders of Bear Stearns Asset Backed Securities ILLC, Asset-Backed Certificates, Series 2006HE9 ("LENA") clearly states that the assignment of the mortgage and the promissory note that are the subject of this foreclosure action were later filed after LENA only as trustee filed a Notice'of lis pendens on March 13, 2008 in the Circuit Court of the Fifth Judicial District Court in and for Hernando County, Florida (See Exhibit "B"). LENA in its suit also does not indicate how it had any right or legal ability to initiate such an action and simultaneously claimed that "they had also lost or destroyed the Mortgage Note" which they did not own in fact LBNA as nominal trustee for mortgage-backed securities has filed many foreclosure actions throughout the United States under false, deceptive and misleading representations without any legal standing to sue any party and its interest in the debt. These patterns represent a pattern of corrupt and illegal activity. 6. Further, the Assignment itself is objectionable and gives rise to several issues of possible misrepresentation and fraud. (See Exhibit "A"). 7. Liquenda Allotey has executed the assignment as Vice President of MERS but he is not listed as an officer or director of MERS. (See composite Exhibit "C"). 8. Liquenda Allotey has also executed Assignments as Vice President of other banks in the recent past (See Composite Exhibit "D"). Most peculiar, Allotey was Vice President of Washington Mutual in 2006, Vice President of MERS for this case and again on April 30, 2007, and Vice President of Washington Mutual again on May 17,2007. 9. Allotey, in fact appears to works for FIS-LPS a mortgage collection agency as evidenced by his Linkedln profile, and the Summit magazine (page 18)(See Composite Exhibit "E"). 10. Additionally, as to the March 17,2008 assignment, it purportedly assigns the mortgage and the promissory note from MERS in its corporate capacity as nominee (agent) directly to LENA and not to the trust for which plaintiff acts as trustee. 11. LBNA's pattern and practice of seeking and obtaining foreclosure judgments without a duly recorded assignment, without the evidence of a chain of assignment at time of filing suit constitutes a "false, deceptive, or misleading representation or means" in connection with the collection of debt,

in violation of the Federal Fair Debt Collection Practices Act, 15 U.S.C. 1692e and that has occurred in this case as well. 12. The plaintiff also fails to attach a copy of the promissory note to its complaint. 13. From the plaintiffs own filings in this foreclosure action, it is established that a person other than the plaintiff LBNA was in fact the true owner of the claim at the time LBNA actually sued upon, and that the plaintiff 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 foreclosure action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985)

14. The plaintiff did not own or hold the subject promissory note at the time the plaintiff LBNA filed this foreclosure action on March 13,2008, and the plaintiff was fully aware of this lack of ownership, and its lack of standing at the time of the commencement of this action. As stated plaintiff LBNA and others like it have done this repeatedly, and even federal courts are striking their predatory tactics for this very same reason as they never had ownership and do not have the notes where they just claim they lost them. 15. The plaintiff LENA further has failed to establish in any of its papers or filings (hat it owned or held the mortgage or the promissory note at the commencement of this action. In fact the assignment of the mortgage did not take place until March 17, 2008, several days after the filing of the complaint where they claim to already have "lost or destroyed the mortgage note". 16. Unlike statutory prerequisites to filing a lawsuit, standing is having a sufficient interest in the outcome of litigation which will warrant a Court's entertaining it. 17. The plaintiff in this case, still only a TRUSTEE for these securities, never had an interest in the mortgage or the promissory note, and never had standing to bring this action. 18. In this case, the Court is without jurisdiction because the plaintiff LENA, a trustee, has perpetrated a fraud upon this Court in this action as set out herein. 19. The falseness of the plaintiffs allegations that it owned, held and possessed the subject mortgage and promissory note is readily apparent from

a cursory review of the documents attached to the complaint and the later filed assignment. 20. The defendant seeks a hearing in this matter to obtain an order dismissing this foreclosure action filed by a trustee of a securitized mortgage pool based on a lack of standing; a lack of subject matter jurisdiction; failure to state a cause of action for foreclosure and for fraud on the Court which is also supported by Florida Rule 1,540(b) even at this late date. Also defendant Puentes seeks an order to strike the Final Judgment of foreclosure dated December 12, 2008 and order setting foreclosure sale set for January 23,2009. 21. The defendant seeks a finding that the plaintiffs assertions that it was the owner of the mortgage and the promissory note at issue were false and that the plaintiff was fully aware of such false allegations at the time the plaintiff filed this foreclosure action while claiming it had already lost the mortgage note it did not own. Under Florida Rule 1.540(b), there is no time limitation due to fraud and misrepresentation in dismissing a summary judgment. 22. The plaintiff LBNA is not the 'owner' of the subject mortgage or the promissory note as the plaintiff alleges to this Court in its complaint and not to grant defendant Puentes relief would be most harmful to him as once the scheduled sale takes place, there is no further recourse while plaintiff LBNA is not damaged as there is no beneficial interest for them to protect where delay would cause them harm. 23. The plaintiffs allegations that it 'owned' 'held' and 'possessed' the mortgage and promissory note that are the contracts that are the subject of this foreclosure action are false and were made in bad faith as the plaintiff knew said allegations were false. In fact LBNA almost always claims they have lost their notes and cannot find them. 24. The plaintiff LBNA, only as trustee, establishes in its complaint that it was fully aware that its claims to have standing to pursue this foreclosure action were untrue and an impossibility at the time the plaintiff made such allegations to this Court for they had to assign the mortgage note at a later date, being March 17,2008 (See Exhibit "A"). Rhea v. Halkney, 157 So. 190, 193 (Fla. 1934) 25. "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." Rheav. Halkney, 157 So. 190, 193 (Fla. 1934); O'Benyv. Pearson, 186 So. 430 (1939); Furst v. Blackman, 744 So.2d 1222 (Fla. 4* DCA 1999), Reif Development, Inc. v. Wachovia Mortg. Co., 340 So.2d 1267 (Fla. 4* DCA 1976). The plaintiffs complaint is a "sham".

26. The integrity of the civil litigation process depends on the truthful disclosure of facts. Metropolitan Dade County v. Martinson, 736 So.2d 794 (Fla. 3'd DCA 1999), Andrews v. Palmas De Majorca Condo, 898 So.2d 1066 (Fla. 5* DCA 2005). Plaintiffs actions undermine the integrity of this civil litigation process. 27. A trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action and strike an order when a plaintiff has perpetrated a fraud or made misrepresentations to the Court. Arzuman v. Suad, 843 So.2d 950 (Fla. 4"1 DCA 2003), Piunno v. R.F. Concrete Constr., Inc., 904 So.2d 658 (Fla. 4th DCA 2005) 28. 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 where defendant asks this court for immediate relief and protection. Andrews v. Palmas De Majorca Condo, 898 So.2d 1066 (Fla. 5* DCA 2005) 29. The plaintiff LBNA's lack of ownership of the mortgage and 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. 3"1 DCA 1999) 30. The plaintiffs efforts to misrepresent ownership of the note are a mere pretense set up in bad faith and without color of fact. Reif Development, Inc v. Wachovia, supra and Furst v. Blackman, supra. 31. 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. Stale Farm Mutual Automobile Ins. Co., 846 So.2d 572, 574 (Fla. 1s1 DCA 2003)

32. 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 meets none of these standing criteria.

33. 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 rest exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v. Nopal Lines, ltd, et al, 462 So.2d 1178 (Fla. 3d DCA 1985) 34. 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. Broay, 347 So.2d 689 (Fla. 4* DCA 1977) 35. "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) 36. Defendant Puentes seeks a dismissal of the plaintiffs complaint on the basis of fraud on the court, making numerous misrepresentations, and under the circumstances of this case, "a formal evidentiary hearing on this motion to dismiss, as well as permissible discovery prior to the hearing, is required." Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4* DCA 1996) 37. Recent decisions of many courts from around the country from state courts, federal district courts and bankruptcy courts have caused actions such as the present to be dismissed for failure to state a claim and for failure to assert an injury in fact. Copies of these court orders, to date, can be presented to and filed with the Court and are incorporated herein. 38. As held in the In re Foreclosure Actions, the appropriate documentation required to effectuate an equitable assignment and having legal standing to bring a foreclosure action must be through a trust and/or assignment documents executed before the action was commenced, or both as circumstances may require. 2007 WL 4034554 at *1 (N.D. Ohio 2007). A trust cannot be effective until it has been executed so the assignment documents that place property in trust would need to be executed before any action could be taken. Here, the assignment documents were not executed until after the action was brought in court. This is a fraud upon the court and should be dismissed because the plaintiffs had no legal standing to even bring the action for foreclosure at the time that they did.

39. Where a plaintiff does not own a mortgage or have any interest in the mortgage at the time of filing foreclosure action, the case must be dismissed for failing to comply with statutory requirements of standing. See Davenport v. HSBCBank. 275 Mich.App. 344, 347-348,739 N.W.2d 383, 385 (Mich.App.,2007) (Where the defendant did not own the mortgage or an interest in the mortgage at the time in which they commenced foreclosure proceedings. Quite simply, defendant did not yet own the indebtedness that it sought to foreclose. Because defendant lacked the statutory authority to foreclose, the foreclosure proceedings were void ab initio). See also Fleet Nat. Bank v. Nazareth. 75 Conn.App. 791,794-795, 818 A.2d 69,71 (Conn.App.,2003) (In this case, however, the plaintiff was never the holder of the note. The plaintiffhas failed to cite any authority, nor has our research found any, to support its claim that it has standing to foreclose on the mortgage without ever having been assigned the note). See also In re Nosek. 386 B.R. 374, 380 (Bkrtcy.D.Mass.,2008) (Holding that those parties who do not hold the note or mortgage and who do not service the mortgage do not have standing to pursue motions for relief or other actions arising from the mortgage obligation. Schwartz, 366 B.R. at 270). 40. Similarly, where action was commenced only a few days before execution of an assignment, courts have held that the Plaintiffhas no standing to bring an action in court. So regardless of the amount of time between the action being filed and the execution of the assignment, the assignment must be executed prior to any assignment. See Mortgage Electronic Registration Systems. Inc. v. Thompson. 2002 WL 521704 (Conn.Super., 2002) (Plaintiff had no standing to bring foreclosure action, and thus, court lacked jurisdiction over action, where action was commenced at a time when plaintiff had no interest in mortgage being foreclosed; defendant was served writ, summons and complaint three days before plaintiff was assigned mortgage to be foreclosed, and plaintiff offered court no evidence as to its legal or equitable right to bring action on or before date of service. C.G.S.A. 49-17). 41. Florida Courts have also held in similar cases that an assignment must be executed before a party may file suit. See Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So.2d 1281, 1287 (Fla.App. 2d DCA 2005)(Where an insurance provider alleged that insurance benefits were assigned to it without producing a written instrument, then amended the claim with a written instrument dated six months after the filing of the suit, held that the provider lacked standing because there was no assignment at the time that the case was filed in court).

42. Courts have held that a party's lack of standing is a defect that cannot be cured by acquiring the right of standing after action has already been filed. See Gwaltnev of Smith field Ltd, v. Chesapeake Bay Found.. Inc., 484 U.S. 49, 69 (1987) (Scalia, J., concurring) ("Subject matter jurisdiction depends on the state of things at the time of the action brought). See Also Progressive Exp. Ins. Co.. 913 So.2d 1281. Compare to Dasma Investments, LLC v. Realty Assoc. Fund HI. LP. 459 F. Supp. 2d 1294, 1302 (S.D. Fla., 2006)(Party suing on Promissory Note must be in actual possession of the original note to have standing). 43. The plaintiff cannot in good faith deny knowledge of the judicial findings of these many courts around the country, it is now even in newspapers and on television, and these widely publicized issues relate directly to the underlying standing problem that the plaintiff LBN A has in this case and other cases. 44. The plaintiff LENA is fully aware that the trustee never owns promissory notes as MERS once stated in the case of Mortgage Electronic Registration Systems, Inc. v. Nebraska Department of Banking, where MERS pronounced that as trustee of a pool of mortgage-backed securities, "It does not acquire mortgage loans...because it only holds legal title to members' mortgages in a nominee capacity...and that it does not own the promissory notes secured by the mortgages and has no right to payments made on the notes." LENA as trustee, is just like MERS as explained in the Nebraska case that "it (the trustee) merely immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur." Mortgage Elec. Registration Sys., Inc. v. Nebraska Dept. of Banking, 704 N.W.2d 784, 787 (Neb. 2005) 45. As a result in the instant case, the plaintiff LBNA knew and was fully aware that it was asserting a right to foreclose as if it was the owner and holder of the subject mortgage and promissory note when the plaintiff knew that such right did not exist and the plaintiff further knew that it was not the owner or the holder of the subject mortgage note at the time the plaintiff filed its complaint herein alleging that it owns and holds and possesses the subject promissory note and mortgage. These allegations are utterly false and were known by the plaintiff to be false at the time the plaintiff filed this action on March 13, 2008. In effect, plaintiff LBNA falsely represented the status of the debt, in particular, that it was due and owing to plaintiff LBNA at the time the suit was filed, and that LBNA was an innocent purchaser for value, when in fact, only an assignment for no value had not been accomplished days later on March 17,2008. All a total Sham.

46. Jn Florida, the prosecution of a foreclosure action is by the rightful owner of the mortgage and the holder of the promissory note. At the time of this filing, LBNA has not been shown to have a connection to this matter. 47. It is clear from the mortgage and the assignment later produced and attached hereto, that a person other than the plaintiff is the true owner of the claim sued upon and that the plaintiff is not the real party in interest and is not shown to be authorized to bring this action 48. Florida Rule of Civil; Procedure 1.130(a) requires a plaintiff to attach copies of all bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought to its complaint. Instead, even before the assignment, LBNA was already claiming to be the rightful owner and that the "mortgage note had either been lost, destroyed, and that plaintiff was unable to state the manner in which this occurred...and after diligent search they were unable to obtain possession of the mortgage note." LBNA wants this court to believe that this is an isolated case involving the defendant Puentes, but in fact, they never owned the note and in many suits they bring, they make the same claims before the court often going unchallenged as they foreclosed on other's property. 49. The plaintiff also has failed to attach a copy of any other document or contract upon which this action to prosecute the breach of a promissory note is being brought. 50. Fla. R. Civ. P. Rule 1.310(b) provides that all exhibits attached to a pleading shall be considered a part of the pleading for all purposes. It appears on the face of the plaintiffs complaint and the documents attached thereto that the plaintiff is not the proper party to bring this action. Because the facts revealed by Plaintiff's exhibits are inconsistent with Plaintiffs allegations as to the ownership of the subject mortgage and note, those allegations are neutralized and Plaintiffs complaint is rendered objectionable. Greenwald v. Triple D Properties. Inc.. 424 So.2d 185, 187 (Fla. 4" DCA 1983). 51. When exhibits are inconsistent with the plaintiffs allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 11240 (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. 3d DCA 1983). 52. Lastly, Florida Rule 1.540(b) also gives relief from judgment, decrees or orders if there is merit to the case, which there is in this case. In paragraph

(b) on motion and upon such terms that are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: i. Mistake, inadvertence, surprise, or excusable neglect; ii. Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; and iii. Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. 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. From the plaintiffs own pleading, it is easy to see where there have been both fraud and misrepresentation in this case and other cases which LBNA and their attorneys are also involved. WHEREFORE, The Defendant, PATRICK PUENTES, prays that this Honorable Court grant a hearing (if necessary) and dismiss the plaintiffs complaint and this action with prejudice; immediately strike the Final Judgment of Foreclosure and the order scheduling foreclosure sale dated December 12, 2008; award this defendant all other relief to which this defendant proves himself entitled to including but not limited to an award for reasonable and necessary attorney's fees; or in the alternative, issue a temporary restraining order to allow for a hearing on this matter as delay will not cause prejudice to non-standing party plaintiff LBNA but would severely harm defendant Puentes. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular U.S. Mail and facsimile to Rebecca Nilsen, Esquire, Law Offices of Marshall C. Watson, P.A., 1 800 N.W. 49"1 Street, Suite 120, Fort Lauderdale, Florida 33309 on this [Zffiay of January, 2009. Respectfully submitted, ) C. ROYER, ESQUIRE, P.A. EDWAtfD C. ROYER, ESQL FBN: 0016229
3 1 1 1. W. Dr. Martin Luther King Blvd., Suite 100 Tampa, Florida 33607 (813)418-5254 Telephone (813)350-7801 Facsimile Attorney for Defendant Patrick Puentes