IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA
US BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR GSMPS 2004-4
CASE NO: 08-CA-055974
vs. Judge: McHugh, Michael T.
LARRY R. BRADSHAW, et al,
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, Defendant, Larry R. Bradshaw, and files his ANSWER and Affirmative Defenses, and states in support:
1. Defendant DENIES that the instant action is an in rem action to foreclose on real property located in Lee County.
2. Defendant DENIES that Florida Default Law Group has complied with the notice requirements of the Fair Debt Collection Practice Act, 15 U.S.C. § 1692 et seq.
3. On part one of paragraph 3 Defendant asserts that, on October 16, 1998 Defendant executed an original NOTE with Irwin Mortgage Corporation. On part two of paragraph 3 Defendant not having researched the deed of records, has insufficient knowledge to admit or deny therefore deny. On part three Plaintiff admits to attaching a copy of the mortgage but fails to attach a copy of the original note as required by Rule 1.130
4. Defendant denies that Plaintiff is the holder of the note or entitled to enforce the note and Mortgage.
6. Defendant denies that the Note and Mortgage are in default.
7. Defendant denies that the Note and Mortgage is due and asserts that Plaintiff is attempting to mislead this honorable court wherein Plaintiff declares the full amount payable under the Mortgage Note and Mortgage to be now due, because the plaintiff has not standing to perfect a cause of action.
8. Defendant denies Plaintiff’s claim in paragraph 8. and asserts that the note has been paid in full, evidenced by the SEC filings to be discovered in discovery.
9. Defendant denies that all conditions precedent to acceleration of Note and Mortgage have been met, and asserts that Plaintiff has not complied with the TILA Notice Requirements.
10. Defendant has insufficient knowledge to admit or deny, but based on the fact that plaintiff has failed to submit a contract between plaintiff and Florida Default Law Group, the assertion is non-confirmable.
11. Defendant denies, based on the theory that the obligation has been paid in full as evidenced by the SEC 10K and 8K filing to be discovered.
12. Defendant’s spouse is deceased.
13. Defendant has insufficient knowledge to admit or deny therefore denies at this time, subject to discovery.
15. Defendant denies that the note has been lost, based on the fact that the Washington Mutual Bank suit # 06-CA-4271 the filing referenced below Florida Default Law Group Voluntary Dismissed count II where they had moved to re-establish the lost note. Failure to produce the original note supports defendant’s assertion that the note was paid in full and subsequently destroyed to prevent the Defendant from knowing the obligation was satisfied. Defendant alleges that Plaintiff is engaged in a extrinsic fraud wherein the plaintiff has been paid in full by the insurer of the securitized note, but wishes to enjoy a “wind fall” by using this court to affect an unlawful conversion of the said property to its own use.
16. Defendant incorporates by reference the allegations previously pled as fully set forth.
17. Defendant denies that Plaintiff and Defendant are the only parties that have an interest in or against the re-establishment of the note and assert that the U.S. Attorney, The State of Florida Attorney as well as State and Federal Law enforcement have an interest in mortgage fraud and conspiracies to defraud.
18. Defendant denies that plaintiff was in possession of the note and denies that plaintiff was entitled to enforce such note if it was lost. Defendant asserts that plaintiff has admitted that it has not standing to bring this action, because it has not a copy of the original note.
19. Admits, with objection: Anyone can pull the public documents and make claims as to the contents published. In order to prevail on the merits Plaintiff must proffer admissible evidence to support its claim, specifically, a copy of the original note, assignments and SEC filings.
20. Defendant denies that the plaintiff lost the note; defendant asserts that the plaintiff may have destroyed the note when the obligation was satisfied and asserts that plaintiff is simply attempting to mislead this honorable court in stating that the note has been lost or destroyed. Defendant asserts that plaintiff is practicing a fraud on the court in its attempt to convince this honorable court that was unable to obtain possession of the note, knowing that it has been destroyed.
21. Defendant denies plaintiff’s claim that the note has not been seized or transferred, and asserts that the plaintiff has knowledge that the note was satisfied and destroyed in compliance with Securitizing and Capitalization default rules, to be discovered.
STATEMETN OF THE CASE
22. On December 23, 2008 plaintiff US Bank Association, ATF GSMPS filed the above referenced case in foreclosure against Larry R. Bradshaw, regarding LOTS 5&6 BLOCK 134, OF THAT CERTAIN SUBDIVISION KNOWN AS SAN CARLOS PARK, UNIT 12 ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT OF LEE COUNTY, FLORIDA IN DEED BOOK 326 AT PAGE 195, after twice before voluntarily Dismissing the case for inability to prosecute and or fraud on the court and contempt of court.
23. The first filing was on 10/2/2006 then Plaintiff, Washington Mutual Bank, FKA Washington Mutual Bank FA filed a complaint in foreclosure (06-CA-004271) against defendant Larry R. Bradshaw, regarding LOTS 5&6 BLOCK 134, OF THAT CERTAIN SUBDIVISION KNOWN AS SAN CARLOS PARK, UNIT 12 ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT OF LEE COUNTY, FLORIDA IN DEED BOOK 326 AT PAGE 195. Plaintiff was represented by attorney Hollan Fintel of Florida Default Law Group P.A. Tampa, Florida. The case was voluntarily dismissed on 1/11/2007. See Defense Exhibit “A”
24. The Second filing was on 9/27/2007 then Plaintiff, Washington Mutual Bank, FKA Washington Mutual Bank FA filed a complaint in foreclosure (08-CA-011562) against defendant Larry R. Bradshaw, regarding LOTS 5&6 BLOCK 134, OF THAT CERTAIN SUBDIVISION KNOWN AS SAN CARLOS PARK, UNIT 12 ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT OF LEE COUNTY, FLORIDA IN DEED BOOK 326 AT PAGE 195. Plaintiff was represented by attorney Kiersten Jensen of the Firm of Florida Default Law Group Tampa, Florida who abandoned the case. The case was voluntarily dismissed at a hearing for Defendant’s Motion for Summary Judgment by attorney Brian Hummel, an attorney not of record and who had not made a proper appearance in the case. See Defense Exhibit “B”
25. The third filing was December 23, 2008, now Plaintiff, US Bank National Association, as Trustee for GSMPS 2004-4 filed a complaint in foreclosure (08-CA-055974) against defendant Larry R. Bradshaw, regarding LOTS 5&6 BLOCK 134, OF THAT CERTAIN SUBDIVISION KNOWN AS SAN CARLOS PARK, UNIT 12 ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT OF LEE COUNTY, FLORIDA IN DEED BOOK 326 AT PAGE 195, represented by attorney William Malone and Brian Hummel of the Firm of Florida Default Law Group of Tampa, Florida.
1ST AFIRMATIVE DEFENSE
RES JUDICATA/COLLATERAL ESTOPPEL
26. Defendant asserts an affirmative defense under Rule 1.420(a) (1) for res judicata/Collateral Estoppel. Plaintiff, Washington Mutual Bank, FKA Washington Mutual Bank FA, represented by the Firm of Florida Default Law Group has voluntary dismissed twice. The Rule states: Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim. This action should be dismissal, pursuant to the Rule stated, because Florida Default Law Group has filled the same action for the third time, only the third filing is under the name of US Bank National Association, as Trustee for GSMPS 2004-4 a party in privy with Washington Mutual Bank that can only be construed as the same claim, therefore invoking the doctrine of res judicata/Collateral Estoppel. The complaint alleges that US Bank National Association, now is the holder of the Mortgage Note and Mortgage, but as in both previous cases, plaintiff has not proffered the “Original Note” or any assignments. But, has voluntarily dismissed the case when a demand for the original notes was made.
a. Where the original note is required to be extinguished and returned to the defendant upon a successful foreclosure, to prevent the Original Note from remaining in the stream of commerce, (See PERRY v. FAIRBANKS CAPITAL CORP., 888 So.2d 725 (Fla.App. 5 Dist. 2004) plaintiff must proffer the original note.
2ND AFFIRMATIVE DEFENSE
FRAUD ON THE COUT
27. Florida Default Law Group has commit extrinsic fraud by filing a false document in the deed of records asserting a decree had been made and set aside by presumed agreement and a third default had occurred. The false document was created and filed to clear the way for Florida Default Law Group to file the third case. Florida Default Law Group being aware of the holding in Perry v Fairbanks Capital Corp., 888 So. 2d 725 (Fla. App. 5th Dist 2004) and knowing that the second voluntarily dismissal operated as an adjudication on the merits thereby preventing a third filing, digressed to fraud on the court so that they could deceive the court and prevail in the third action. (Perry v Fairbanks Capital Corp. “In rejecting the application of collateral estoppel in that case, we stated that "the well established rule in Florida has been and continues to be that collateral estoppel may be asserted only when the identical issue has been litigated between the same parties or their privies." Romano, 450 So.2d at 845), they constructed a fraud intended to give them the third bite at the apple.
3rd AFFIRMATIVE DEFENSE
FRAUD ON THE COURT
28. Attorneys for the plaintiff, Florida Default Law Group has acted in “Bad Faith” and committed a “fraud on the court” wherein plaintiff filed a Notice of Voluntary Dismissal with the Clerk of Courts in case number 07-CA-11562) after Judge Adams allowed Washington Mutual Bank to voluntarily dismiss, at defendant’s summary judgment hearing, in which the attorney of record was not present. Judge Adams allowed Brian Hummel an attorney not of record but admittedly employed by Florida Default Law Group who just happened to be in the court room two hours before his hearing, to stand in for Attorney Cindy Runyan who was in violation of Judge Steinbeck’s order to rectify the issue of attorney of record pursuant to the rule and supported by Bortz v Bortz 675 So.2d 622 (Fla. 1st DCA 1996). Attorney Hummel made a verbal motion to voluntarily dismiss claiming that a Notice of Voluntary Dismissal had been filed. The record fails to reflect the truthfulness of his statement. Judge Adams in complete disregard to the higher court ruling cited above allowed Brian Hummel to represent the plaintiff even though he had not made an appearance in the case and Florida Default Law Group was in contempt of court for violating a court order issued by Judge Steinbeck to rectify the issue of attorney of record on 4/1/2008 Case Management Conference. See Defense Exhibit “C”
4TH AFFIRMATIVE DEFENSE
FRAUD ON THE COURT
29. Plaintiff filed a false document (Notice of Voluntary Dismissal) under authority of F.S. 695.26 that is facially void. The false document was knowingly filed by Florida Default Law Group to set up the court to defeat res judicata. Florida Default Law Group filed the Notice of Voluntary Case Dismissal Instrument # 200800042176, under authority of F.S. 702.07 but recorded the Notice without the required signature as an instrument in conveyance, assignment, encumbered or otherwise disposed under Florida Statute 695.26 wherein it appears in record as a conveyance from a judicial decree. The fact that the document is facially flawed raises the question of conspiracy by the clerk of courts in filing such a facially flawed instrument. To Wit: Florida Statute 695.26(1)(a) states: the name of each person who executed such instrument is legibly printed, typewritten, or stamped upon such instrument beneath the signature of such person and the post office address of each person is legibly printed, typewritten or stamped upon such instrument; (b) The name and post office address of the natural person who prepared the instrument or under whose supervision it was prepared are legibly printed, typewritten or stamped upon such instrument; (c) The name of each witness to the instrument is legibly printed, typewritten or stamped upon such instrument immediately beneath the signature of such instrument; (d) the name of any notary public or other officer authorized to take acknowledgement or proofs whose signature appears upon the instrument is legibly printed, typewritten of stamped upon such instrument immediately beneath the signature of such notary public or other officer authorized to take acknowledgement or proof;… It is painfully clear that the Notice of Voluntary Case Dismissal is defective pursuant to F.S. 695.26 and filed in “bad Faith” which requires this court to strike the document from both the court record and the instrument filing under F.S. 692.26 for fraud. The fraudulent filing was done so that Florida Default Law Group could simply change the dates and numbers on the next complaint to defeat res judicata. The fact is there was no mutual consent or decree of the court. The plaintiff’s Voluntary Case Dismissal was a result of plaintiff counsel’s inability to prosecute the case according to the rules of court, and an attempt to circumvent court sanctions for disobeying a court order, not a setting aside a decree before sale of property pursuant to the terms of the decree, and a resetting of the case to a state prior to the alleged default. See Sterling Factors v. U.S. Bank, 968 So. 2d 658 (Fla. App. 2 Dist 2007). (See Defense Exhibit “D”
5TH AFFRMATIVE DEFENSE
FRAUD ON THE COURT
30. Plaintiff counsel also committed a fraud on the court wherein plaintiff requested the return of the original note in the previous suit (06-CA-011562) from the court records knowing that the original note was never filed in the court records. The complaint clearly evidences the fact wherein plaintiff’s Count II moved to re-establish the note. Defendant objected to the allegation that the original was in record and the court addressed the issue, stating in essence that the court was not aware the original had ever been filed. The record clearly shows from the defendant’s Request for Admissions and production of documents that the original note was sought by the defendant from the first response but was never proffered or admitted to have been filed in the court record.
7TH ADDIRMATIVE DEFENSE
FRAUD ON THE COURT
31. The assertion by Florida Default Law Group suggesting that the court lost the note was done in “bad faith” and defendant believes an act of mortgage fraud because the plaintiff counsel had possession of the original note but moved the court to reestablish so that the reestablished note could be extinguished leaving the original note as a “windfall” in the stream of commerce.
1ST RELIEF SOUGHT
SANCTIONS: PER RULE 1. 420(D)
Wherefore, defendant moved for sanctions and cost at the second voluntary dismissal and the court stated it would entertain the sanctions for plaintiff’s violation of a court order; defendant should be awarded reasonable attorney fees and cost under Rule 1.420(d) before allowing this case to move forward. See Defense Exhibit “E”
Where Plaintiff has abused process by constructing a fraudulent document, Notice of Voluntary Dismissal citing section 702.07, and recording the false document, Instrument #2008000184940, with intent that this court would rely on the false document and allow the third suit, causing sever emotional and financial damages to defendant. This court should award punitive damages and refer this case to the U.S. Attorney for investigation and prosecution of Federal Mortgage laws, conspiracy to defraud, and constructing and filing false documents in the court, attempted extortion, and Securities Fraud, and any other relief just due and owing.
Larry R. Bradshaw