IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

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1 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA NATIONSTAR MORTGAGE ) CASE NO: CA 01 Plaintiff, ) ) vs. ) ) RITA LAWHORN, ET AL., ) Defendants. ) / MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT S OBJECTION TO THE NOTE S ADMISSIBILITY INTO EVIDENCE 1. This is a foreclosure action. 2. Trial in this case began on January 31, 2014 and was continued to February 20, Due to the events that transpired at trial, and for the following reasons, the Promissory Note in this case should not be admitted into evidence. I. PARTIES ARE BOUND BY THEIR PLEADINGS Florida law is clear that parties are bound by their pleadings Holub v. Holub, 54 So. 3d 585, 587 (1st DCA 2011) (citing City of Deland v. Miller, 608 So. 2d 121 (Fla. 5th DCA 1992); Carvell v.kinsey, 87 So. 2d 577 (Fla.1956)). See also Hart Properties, Inc. v. Slack, 159 So. 2d 236, (1963) (it is a...well settled rule that parties[ ]litigants are bound by the allegations of their pleadings ). Furthermore, FLA. R.CIV. P (b) states any exhibit attached to a pleading shall be considered a part thereof. Professor Ehrhardt refers to that which a plaintiff alleges as a judicial admission and makes it abundantly clear how those are to be treated. Admissions under section (18) are dissimilar from judicial admissions made in a pleading or pursuant to Florida Rule of Civil Procedure Those formal admissions are binding in the case, and a party may not offer

2 evidence to dispute them. C. Ehrhardt, Florida Evidence (18) (2013 Edition) (emphasis added). In the instant case, on or about May 2, 2011, Plaintiff properly filed a First Amended Complaint for Foreclosure (hereinafter Amended Complaint ) (a copy of the note attached to the Amended Complaint is attached herein as Exhibit A). Attached to the Amended Complaint is a copy of a note bearing one indorsement, in blank. Paragraph four therein states [c]opies of the original note and mortgage are attached hereto and incorporated herein The note attached to the Plaintiff s Notice of Filing Trial Exhibits, filed on January 30, 2014, the day before trial 1, listed as a Copy of Original Promissory Note is the same as the one attached to the Amended Complaint. 2 (See Plaintiff s Notice of Filing Trial Exhibits, without attachments, attached as Exhibit B). However, when reviewing these alleged copies of the original note provided by Plaintiff both in the Amended Complaint and in the Notice of Filing Trial Exhibits, it is evident that these copies are materially different than the original. The original note, filed on May 29, 2009, almost two full years before the Amended Complaint was filed, has two indorsements. (Copy of a certified copy of the original note contained in the Court s file is attached as Exhibit C). One indorsement is apparently signed by Amanda Alvarez, Closing Manager of First Magnus Financial Corporation, the original lender, indorsing the note to Residential Funding Company, LLC. The second indorsement is apparently signed by Judy Faber, Vice President of Residential Funding Company, LLC, indorsing the note to Deutsche Bank Trust Company Americas as Trustee. However, both the copy of the note attached to the Amended Complaint filed on May 2, 2011, which again is after the original note was filed with the court, and the copy of the original 1 The trial order required exhibits to be made available to opposing counsel on 1/10/2014. Defendant requested copies on 1/13/2014 via a filing and serving a Notice of Request to Make Trial Exhibits Available. 2 There was no note at all attached to the original complaint.

3 promissory note provided in Plaintiff s Notice of Filing Trial Exhibits on January 30, 2014, shed the Judy Faber indorsement from Residential Funding to Deutsche Bank Trust Company as trustee in its entirety. On the one remaining indorsement that exists on both the original and the copies, the words Residential Funding Company LLC are removed, leaving behind, on the copy only an apparent indorsement in blank from the original lender. This issue was clearly addressed at trial: MR. ROSEN: Judge, I have to object to this note coming into evidence. The plaintiff has sought to amend its complaint and had an order amending its complaint. The note attached to the amended complaint is different materially than what is here as the original note. THE COURT: What is material? MR. ROSEN: There's an additional endorsement that is not on the note that's attached to the amended complaint. This is the original complaint as was submitted to the Court for summary judgment. If there is a specific endorsement to Deutsche Bank as trustee not naming a trust. The note attached to the amended complaint, interestingly enough, has copies of every single page. It even has those notes, and, I believe, that's the judge's signature or initials that they were accepted into evidence at summary judgment. If you keep flipping the page, every page is identical, even the evidence of what I will call the endorsement to Deutsche Bank is noticeable on the amended complaint copy of the note, but, yet, if you look at that page, there's the back of the Judy Faber endorsement that you can see right through here on this page, but yet on the amended complaint, when you flip to the next page, that's the endorsement in blank. This was filed after this original was filed. Furthermore, the exhibits that we received today in response to trial order, we requested exhibits. We followed up with s. The copy of the original note, which was listed, that's how it was listed on the exhibit list, excuse me, on the copies of the exhibits that were provided, provided this note, and the parties are bound by their pleadings. THE COURT: I'm very disturbed by this. What's the explanation? MR. DROSKY: I don't have an explanation at this point, your Honor. We're going to get into that with the witness. We're just trying to seek to introduce it to the witness right now. The test is prejudice, so I don't understand that there would be any prejudice to defendant. If there's prejudice to anybody in this case, it would be to me in trying to prove my case. MR. ROSEN: Just, this has nothing to do with prejudice. This is what's been deemed as a judicial admission by Erhart, parties are bound by their pleadings. That's the note that's coming in. Furthermore, I appreciate why you're disturbed about this

4 Transcript of Record at p. 17, ln 21 p. 20, ln 1 (Nationstar Mortgage v. Rita Lawhorn, CA-01 DIV 25). Plaintiff is bound by its pleadings and is required to travel under what is attached to its Amended Complaint. Plaintiff cannot now seek to admit a note that is materially different. II. A COPY OF THE NOTE IS NOT ADMISSIBLE INTO EVIDENCE UNDER FLORIDA S BEST EVIDENCE RULE Plaintiff cannot admit the copy of the note attached to the Amended Complaint into evidence as the note does not comply with the Best Evidence Rule. Under FLA. STAT [e]xcept as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing. FLA. STAT states that a duplicate is admissible to the same extent as an original, unless: (1) The document or writing is a negotiable instrument as defined in s (Emphasis added). By attaching a copy of a note, made payable to another party but bearing only an indorsement in blank, Plaintiff in its Amended Complaint is seeking to enforce the note under the theory that it is a negotiable instrument. Yet, when a negotiable instrument is neither claimed to be lost, destroyed or stolen 4, only an original can be admitted into evidence, not a copy. III. THE ORIGINAL NOTE IS NOT SPECIALLY INDORSED TO PLAINTIFF Despite the fact the Plaintiff cannot rely on the original note as previously stated, even if it could do so, the Plaintiff is still not entitled to enforce the note because it is specially indorsed to another entity. Pursuant to FLA.STAT (1): If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a special indorsement. When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. 4 Florida Statutes addresses the enforcement of a lost, destroyed or stolen instrument.

5 (Emphasis added). In the instant case, the lender on the note is First Magnus Financial Corporation, an Arizona corporation. The original note bears two special indorsements. One, from First Magnus Financial Corporation to Residential Funding Company, LLC and the other from Residential Funding Company, LLC to Deutsche Bank Trust Company Americas as Trustee. The original note is not indorsed in blank and is not specially indorsed to the Plaintiff. Therefore, Plaintiff cannot enforce the original note. IV. THE PROMISSORY NOTE SHOULD BE KEPT OUT OF EVIDENCE AS A SANCTION AGAINST THE PLAINTIFF In addition to the simple aforementioned legal principles, the note in this case, should be kept out of evidence as a sanction against the Plaintiff. The Court has inherent authority to sanction litigants. See Moakley v. Smallwood, 826 So. 2d 221 (2002); K&K World Enter., Inc. v. Union SPOL, S.R.O., 692 So. 2d 1000, 1001 (Fla. 3d DCA 1997); Commonwealth Federal Savings and Loan Assn. v. Tubero, 569 So.2d 1271, 1272 (Fla.1990). Further, the Court can impose strict sanctions when the conduct is egregious. In Commonwealth Federal Savings and Loan Assn., 569 So. 2d at 1272, the Supreme Court of Florida reiterated its opinion in Mercer v. Raine, 443 So. 2d 944 (Fla.1983), stating: A deliberate and contumacious disregard of the court s authority will justify application of this severest of sanctions, Swindle v. Reid, 242 So. 2d 751 (Fla. 4th DCA 1970), as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness, Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971)(emphasis added). Commonwealth Federal Savings and Loan Assn., 569 So. 2d at 1272 (citing Mercer, 443 So. 2d at 946).

6 Further, Florida Rule of Professional Conduct 4-3.3(a) states, in pertinent part: A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. Where false evidence has already been offered, the Comment to Rule provides the following guidance: The Florida Bar has opined: If perjured testimony or false evidence has been offered, the advocate s proper course ordinarily is to remonstrate with the client confidentially if circumstances permit. In any case, the advocate should ensure disclosure is made to the court. It is for the court then to determine what should be done (emphasis added) As the rule indicates, if an attorney knows that any material false representations have been made on the record by a client to any court or tribunal, then the attorney must follow the instructions in the Comment to Rule and ask the client to correct these false statements on the record. If the Client refuses to give consent to the attorney to disclose, then the attorney must make these disclosures him/herself, preferably in an in camera proceeding if possible. Disclosure should be made to the presiding judge and guidance should be requested from the court. Florida Bar Staff Opinion (January 7, 2011).

7 As defined in the Preamble to the Rules of Professional Conduct, [k]nowingly, known, or knows denotes actual knowledge of the fact in question. A person s knowledge may be inferred from the circumstances. Preamble to the Florida Rules of Professional Conduct. Further, [l]egal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. Comment to Rule Also, Florida Rule of Professional Conduct states, A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act; (b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings; In the instant case, the original note first surfaces when it was surrendered to the Court on May 18, 2009, at the hearing on Plaintiff s Motion for Summary Judgment 5. Pages one and five bear unique markings. Page one has the word cancel, as well as and PA 6, all written on the top right corner in apparent wet ink - those markings clearly do not appear to be copies of previous writings nor part of the printed form. The front of page five of the original note, the last page, the back of which has two indorsements, bears a visible, inverse image of the 5 Summary Judgment was on that date but later vacated on November 9, The previous judge in this matter was the Honorable Peter Adrien. It would seem reasonable to surmise that he wrote the word cancel, along with the date and his initials on the original note, as, based on the experiences of the undersigned, numerous judges in Miami-Dade County Circuit Court do the same when an original note is surrendered.

8 Judy Faber/Residential Funding to Deustche Bank Trust Company as trustee indorsement. Apparently the ink of that indorsement, which is again stamped on the back of page five, bled through the page, on to its front. The alleged copy of the original note attached to both the Plaintiff s Amended Complaint and its Notice of Filing Trial Exhibits also contains the word cancel, as well as and PA, written on the top right corner of page one. Only these markings are now clearly not wet ink but rather copies from the original. The front of page five of the copy also has the visible, inverse image of the Judy Faber/Residential Funding to Deustche Bank Trust Company as trustee indorsement. Yet, again, the indorsements on the back of page 5 are materially different. One can t help to consider that the back page was specifically altered on purpose to support, what was at the time of the Amended Complaint, Aurora s cause of action. The Plaintiff in this action was originally Deutsche Bank Trust Company as trustee. The original note apparently supported the ability of that Plaintiff to enforce the note. Via an amended complaint, filed by Elizabeth Wellborn, P.A., the predecessor to the Plaintiff s current counsel, the Plaintiff became Aurora. This was all after the original note had already been surrendered to the court. A note indorsed in blank, which is what the copy of note attached to the Amended Complaint indicates, would apparently support Aurora s ability to enforce that note. Despite Defendant s counsel making Plaintiff s counsel aware, prior to trial, of the uncontrovertibly, verifiable chronological facts of this situation, Plaintiff s counsel struggled to acknowledge or comprehend the magnitude or truth of the situation. When this issue was presented at trial, rather than quickly and overtly admitting the factually obvious and the possible implications of this situation, the following exchange occurred: MR. DROSKY: It's a nice theory, Judge, but there's nothing to support this. This appears to be a second action, and what happens in a lot of cases when you

9 have the case is that the original note is sent back and then it is endorsed by the owner because Deutsche Bank is the owner of this note. They're not the servicer. MR. ROSEN: Judge, if the owner wanted to endorse it, then they should have done that, and that's the way it's properly done, not removing endorsements after the fact to support a cause of action, if that was done or not. I don't want to make allegations here, but something certainly seems wrong. THE COURT: How can that endorsement have disappeared? MR. DROSKY: No, nothing disappeared, your Honor. THE COURT: Isn't that the amended complaint has something without this? MR. ROSEN: Is missing; correct. MR. DROSKY: The amended complaint, this endorsement is the same, your Honor, except now it's specific, the blank endorsement is now a specific endorsement to residential and a second endorsement was added from residential to Deutsche as the owner. MR. ROSEN: But what's most disturbing about the amended complaint is the prior page of the note. The prior page that shows Judy Faber's endorsement is there on their copy of this last page, so they copied -- someone copied pages one through four or five, and then the endorsement which is supposed to be on the back suddenly got substituted for something else. THE COURT: Do you see what we're talking about? MR. DROSKY: No, I do, Judge. MR. ROSEN: I printed out an overhead clear projector sheet to help. MR. DROSKY: This endorsement, this is going to be really tough for the court reporter. I apologize. This endorsement here, your Honor, is the exact same one here. THE COURT: Right. MR. DROSKY: Now, on the original note, the blank now has the residential line there. THE COURT: Right. MR. DROSKY: The second endorsement was added from residential to Deutsche, which is the owner. MR. ROSEN: Which this was filed before that. MR. DROSKY: So there's nothing -- THE COURT: Yes, but my problem is that this was filed in Yes? MR. ROSEN: 2009, actually. It was a lost note count subsequently filed to support summary judgment. THE COURT: So in 2008/2009; right? MR. DROSKY: Yes, Judge. THE COURT: This was filed -- when was the amended complaint filed? MR. ROSEN: 2010, if I'm not mistaken, Judge. Motion to amend was... THE COURT: That's why I asked you. MR. ROSEN: 2011, April 2011.

10 THE COURT: So two years later. How is it Mr. Drosky, and the reason I asked you why did this disappear is that this disappeared. MR. DROSKY: Nothing disappeared, Judge. I mean, when it was amended, somebody obviously took the copy of the note from the original complaint and attached it to the amended complaint. MR. ROSEN: There's no note attached to the original complaint. Todd, sorry to cut you off. It's just not true. MR. DROSKY: There was one in the court file. I saw it. MR. ROSEN: On the original complaint there was no note. It was with Stern, and they attached a sheet of paper that says what the -- THE COURT: Can you find it in here? MR. ROSEN: Sure. THE COURT: Listen, this is going to take more than the time I have today. Listen, if something gets filed, it's got two stamps on it. MR. DROSKY: Yes, Judge. THE COURT: Okay. Two years later, one of the stamps in the amended complaint that's allegedly a true copy has one of those stamps that is disappeared. Don't you see the problem? MR. DROSKY: I see it as the reverse, your Honor. The reverse situation happened. The note had one endorsement, and then the second one was added. He's trying to say that you went from two to one; I'm saying we're going from one to two. THE COURT: That's what he's -- what Mr. Rosen, not he, Mr. Rosen is telling me is that originally there were two stamps on the back of that note, and all of a sudden the amended complaint sheds one of those stamps. MR. DROSKY: No. MR. ROSEN: That's correct. That's absolutely correct, Judge. What was filed in the Court in 2009 has two endorsements as an original. The prior plaintiff's counsel files an amended complaint with one of them missing, but yet again, evidence of it there on the page in front of it, a bleed through, if you will; then I get a copy of an original note today as an exhibit, or last night, yesterday sometime, despite the fact we asked for exhibits well in advance, et cetera, get it yesterday, and the -- it's the exact same copy that has just the one endorsement stating that's an original note, which I know that's not an original note. That's a misstatement to me. That's a misstatement to the Court. I can show you that filing as well as from this counsel, from this counsel's firm, as well as what we see from Wellborn's firm. The amended -- the complaint from Stern was -- as far as I know, had no note, and what it had was a sheet of paper. It has just a mortgage, has a sheet of paper to say what the note terms were. It was a lost-note count. So that the first time a note shows up at summary judgment with two stamps on it supporting a right for some other person to foreclose. THE COURT: In 2009?

11 MR. ROSEN: 2009; correct. Then there's an amended complaint filed with a different note or different endorsements, although pages one through five are identical, has the Judge's initials, has the date. THE COURT: I don't care about the first five pages. My problem is with the back, page five. MR. DROSKY: Somebody obviously used the incorrect copy of the note to attach to the amended complaint. THE COURT: But you're bound by what you file. MR. DROSKY: The original is in the court file, your Honor. The original cures whatever defects may have been in the previous filings. MR. ROSEN: Judge, no way -- THE COURT: The original is in the court file? MR. DROSKY: Yes, it is. MR. ROSEN: Prior to the amended complaint. The amended complaint is -- their exhibits control our attachments for purpose thereof under the rules. THE COURT: I'm going to set you for a couple hours. I don't have time to do this. I really am concerned about this. Transcript of Record at p. 21, ln 4 p. 27, ln 14 (Nationstar Mortgage v. Rita Lawhorn, CA-01 DIV 25). The Plaintiff s counsel 1) knew about the materially false document prior to trial and proceeded anyway, without disclosing this to the Court; 2) misled the Defendant and the Court by providing a purported Copy of Original Promissory Note in its Notice of Filing Trial Exhibits the day before trial, which it, at that time, knew, or at least should have known, was not the original; 3) did not disclose this issue to the Court; and 4) when confronted with this issue, rather than at least admit that which is chronological fact, or ask the Court for time to study this issue further, argued otherwise. As a sanction for the above, neither the note attached to the Amended Complaint nor the original note located in the court record should be admitted into evidence and this action should be dismissed. V. CONCLUSION Neither the original note nor the copy of the note attached to the Amended Complaint should be admitted into evidence. Plaintiff is bound by its pleadings and cannot admit into

12 evidence a note that is different from the copy attached to its Amended Complaint. Further, since the Plaintiff is not claiming that the original note has been lost, destroyed or stolen, a copy of the note is inadmissible. Even if somehow the Court found that the original note is admissible, since it is specially indorsed to someone other than the Plaintiff, the Plaintiff cannot enforce it. Lastly, Plaintiff s counsel is required to act with candor towards this tribunal and to treat the opposing party and their counsel fairly, which it has not done. CERTIFICATE OF SERVICE I certify that the foregoing document has been furnished to Todd Drosky, Esquire, Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, 1 E. Broward Blvd. Suite 1111 Fort Lauderdale, Florida by to fleservice@flwlaw.com, on this 17 th day of February, /s/ Evan M. Rosen Evan M. Rosen, Esquire Law Offices of Evan M. Rosen, P.A Harrison Street, Suite 204 Hollywood, FL (phone) Fl. Bar # Attorney for Defendant Designated for Service: eservice@evanmrosen.com

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