FLORIDABANKE A OCIATION RLEAVETOA ';d 'AS] AMICI CURIAE IN SUPPORT OF RESPONDENT ~~;.J ~-~

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1 THE BANK OF NEW YORK, etc., et al., Respondents. ~I r'- ~,,' r '-", c.. MOTION OF THE MORTGAGE BANKERS ASSOCIATION-AND THE FLORIDABANKE A OCIATION RLEAVETOA ';d 'AS] AMICI CURIAE IN SUPPORT OF RESPONDENT ~~;.J ~-~ 0::'" \;,~ U'.-J Pursuant to Florida Rule of Appellate Procedure 9.370, by itsjundersigned attorneys, the Mortgage Bankers Association ("MBA") and the Florida Bankers Association ("FBA") respectfully move the Court for leave to appear as an Amici Curiae and file a brief on the merits on behalf of Respondents, the Bank of New York Mellon, et alia. In support oftheir Motion, the MBA and the FBA state: Interests ofproposed Amicus 1. MBA was formed in 1914 and for nearly 100 years has been a leader in representing the concerns of the real estate finance industry, appearing frequently as amicus curiae not only to provide industry perspective on the narrow legal issues of a case but also to discuss the larger impacts of judicial actions. MBA has over 2,200 members comprised of mortgage companies, mortgage brokers, commercial banks, thrifts, life insurance companies, and other organizations that that lend on real estate or support lenders and investors in N 1

2 mortgages. The industry collectively employs more than 280,000 people in virtually every community in the country. Among its purposes, MBA seeks to ensure the continued strength of the nation's residential, multifamily and commercial real estate markets. It promotes affordable and sustainable home ownership. MBA has a direct interest in this litigation because many of its members have offices in Florida and, together, they have made tens of thousands ofmortgage loans in the State. 2. The FBA is a voluntary organization, which represents the interests of lenders in Florida and is composed of more than 300 banks and financial institutions that range in size from small community banks and thrifts, to medium sized banks operating in several parts of the state, to large, regional, financial institutions, headquartered in or outside of Florida. The FBA regularly represents the interests of its members before all branches of the government and frequently appears as Amicus Curiae in the state and federal courts, including this Court, in order to share the perspectives of its membership on issues ofgreat importance. 3. The proliferation ofresidential mortgage foreclosure actions in Florida has greatly impacted the real estate fmance industry in general and the members ofthe :MBA and the FBA in particular. The real estate finance industry and the MBA's and FBA's members similarly will be affected by this Court's ruling on the certified question, "Does a trial court have jurisdiction and authority 2

3 under Rule 1.540(b), Fla. R. Civ. P. or under its inherent authority to grant relief from a voluntary dismissal where the motion alleges a fraud on the court in the proceedings but no aftrrmative relief on behalf ofthe plaintiff has been obtained from the court?" Issues to Be Addressed 4. The MBA's and FBA's Amicus briefwould discuss (i) Florida Rules ofcivil Procedure 1.420(a) and 1.540, the interplay between these Rules and the conflict between the plain meanings ofthe Rules that various answers to the certified questions could create; (ii) the Florida legal precedent governing when assignments ofmortgage should and should not be scrutinized in foreclosure cases and the impact ofa potential ruling on that body oflaw; and (iii) the potential chilling effect on litigation and uncertainty in business dealings that this Court's opinion could foment. The MBA and the FDA Can Assist the Court 5. In addition to analyzing legal issues, the Amicus brief ofthe MBA and the FBA would discuss the practical impact the Court's opinion would have on the real estate finance industry in Florida The perspectives ofthe MBA and the FBA in this regard differ from those ofthe Petitioner and his Amicus. Moreover, because the members ofthe MBA hail from a wide variety ofcompanies and the 3

4 MBA and the FBA are broader than those ofthe Respondents. Consent to Appear as Amid Curiae 6. Respondents have consented to the MBA and the FBA appearing as Amici Curiae and filing a brief. Enrique Nieves, ill, Esq., counsel for Petitioner, authorized undersigned counsel to represent to this Court that Petitioner does not object to the MBA and the FBA appearing as Amici Curiae. WHEREFORE, the Mortgage Bankers Association and the Florida Bankers Association respectfully request that their Motion be granted. Respectfully submitted, BERGER SINGERMAN LLP mber er 350 East as Olas Boulevard, Suite 1000 Fort Lauderdale, FL Telephone: (954) Facsimile: (954) Fred O. Goldberg, Fla. Bar No fgoldberg@bergersingerman.com 1450 Brickell Avenue, Suite 1900 Miami, FL Telephone: (305) Facsimile: (305) and 4

5 Elaine Johnson James, Fla. Bar No North Military Trail, Suite 240 Boca Raton, Florida Telephone: (561) Facsimile: (561) Attorneys for the Mortgage Bankers Association and the Florida Bankers Association CERTIFICATE OF COMPLIANCE I certify that this Motion was prepared with Times Roman 14 point font and that it complies with the Florida Rules ofappellate Procedure. CERTIFICATE OF SERVICE I certify that, on this 23rd day ofjanuary, 2012, a true and correct copy ofthe foregoing was furnished by U.S. First Class mail to: Craig Lynd Enrique Nieves, In Robert Horst Christopher Immel Curtis Wilson Ice Legal, P.A. Kaufinan J Englett, and Lynd, PLLC 1015 N. State Rd 7, Suite D 111 N. Magnolia Ave., Suite 1600 Royal Palm Beach, FL Orlando, FL William P. Heller Bruce Rogow Akennan Senterfitt Bruce S. Rogow, P.A. 350 East Las Olas Blvd. 500 East Broward Blvd., Suite 1930 Fort Lauderdale, FL Fort Lauderdale, FL Katherine E. Giddings Nancy M. Wallace Akennan Senterfitt 106 East College Avenue 12th Floor

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