IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR CLAY COUNTY, FLORIDA COUNTRYWIDE HOME LOANS, INC. FOR THE BENEFIT OF WASHINGTON MUTUAL MORTGAGE SECURITIES CORP., Plaintiff, CIVIL DIVISION CASE NO. 08-2270CA B vs. ELIZABETH M. DZIEDZIC A/K/A ELIZABETH DZIEDZIC A/K/A MIROSLAWA E. DZIEDZIC; JACK DZIEDZIC A/K/A JACEK DZIEDZIC; JOHN DOE; JAND DOE AS IN POSSESSION OF THE SUBJECT PROPERTY, Defendants. / MOTION TO DISMISS FOR LACK OF JURISDICTION AND FOR FRAUD Defendants, ELIZABETH DZIEDZIC and JACK DZIEDZIC, pro se, move this Honorable Court to dismiss Plaintiff s complaint to foreclose mortgage for lack of subject matter jurisdiction and for fraud, and as grounds therefore state as follows: 1. This motion is filed pursuant to Florida Rule of Civil Procedure 1.140(b) (1) and the laws of the State of Florida. 2. Plaintiff COUNTRYWIDE HOME LOANS, INC. FOR THE BENEFIT OF WASHINGTON MUTUAL MORTGAGE SECURITIES CORP. has filed a Complaint purportedly to foreclose on a mortgage on real property situate in Clay County, Florida. However, no such mortgage has been recorded in Clay County. The Clerk of the Circuit Court and the Clay County Official Records 1
3. This Court lacks jurisdiction to foreclose a mortgage allegedly recorded against property in Clay County which in fact, is not recorded in Clay County and lacks jurisdiction to foreclose a mortgage based upon false and fraudulent statements as contained in Plaintiff s pleadings. 4. Jurisdiction has not been established on the record. The jurisdictional question can be raised at any time and can never be time-barred. DeClaire v. Yohanan, 453 So. 2d 375 (Fla. 1984). 5. By failing to record the mortgage in Clay County, Florida on the subject property located in Clay County, Florida, Plaintiff deprives Clay County of the proper intangible tax and documentary stamp tax on the mortgage which should be paid in Clay County, Florida. A mortgage cannot be foreclosed unless and until the proper intangible tax and documentary stamp tax has been paid on the instrument to the taxing authority entitled to collect said tax, in this case Clay County, Florida, the county where the property is located. 6. The statement in Plaintiff s Complaint that the subject mortgage was recorded in the Official Records Book 20310, Page 1676, and re-recorded in Official Records Book of the Public Records of Clay County, Florida is false, and is meant to deceive and obscure the fact that the mortgage is not recorded in the Official Records of Clay County, Florida. Plaintiff is attempting to perpetrate a fraud upon the court and upon Defendants. 2
7. As the subject mortgage is not recorded in Clay County, it is not a proper lien or encumbrance upon the subject real property situate in Clay County, Florida. A mortgage, judgment or lien properly recorded in the County in which the property is located is an effective encumbrance or lien against said property. In this case the subject mortgage, since it is not recorded in Clay County, is not effective as an encumbrance against the property in that it does not put the public on notice as to the Plaintiff s alleged mortgage interest in the property and the public, upon searching the public records of Clay County, would have no way of ascertaining that Plaintiff alleges it has a mortgage interest in the subject real property. Since the mortgage is not recorded in Clay County it cannot act as constructive notice to subsequent mortgagees or purchasers of the subject real property situate in Clay County. 8. The mortgage lender on the mortgage attached to Plaintiff s Complaint is listed as America s Wholesale Lender. Said lender is listed as a Corporation organized and existing under the laws of the State of New York. In fact, America s Wholesale Lender is a fictitious name or trade name and not a legal entity. As such, it has no separate legal existence, has no legal capacity to sue under the fictitious or trade name, and the use of the fictitious name or trade name is meant to obscure the identity of the true lender, Countrywide Home Loans, Inc. 9. Plaintiff, through counsel, has caused an alleged Assignment of Mortgage to be recorded in the public records of Clay County, Florida at OR Book 3054 Page 2138, which purports to be a valid assignment from MORTGAGE 3
10. Upon information and belief, although the alleged assignment is signed and attested to by assignor Mortgage Electronic Registration Systems, Incorporated, as nominee for America s Wholesale lender, the corporate seal is not affixed, Mortgage Electronic Registration Systems Incorporated being a corporation organized and existing pursuant to the laws of the State of Delaware. Upon information and belief both the signatory, Patricia Arrango, assistant secretary, and the notary public, Kelly A. Anderson, are employees of the Law Offices of Marshall C. Watson, the attorney for Plaintiff. Said assignment was created, signed, notarized and recorded for the sole purpose of trying to legitimize the filing of this foreclosure and is an attempt to perpetrate a fraud upon the court and upon Defendants. 4
11. Further, the assignment purports to assign the mortgage executed by ELIZABETH M. DZIEDZIC AND JACK DZIEDZIC recorded May 9, 2006 in Clay County, Florida at Book 20310 and Page 1676 encumbering the property more particularly described as follows: However, no such mortgage was recorded in Clay County, Florida and the statement and the assignment are false on its face. As the assignment is false, it cannot be used as a basis for foreclosing a mortgage which is not recorded in this county for real property situate in Clay County. 12. There are other irregularities in regard to the preparation and execution of the mortgage and note attached to Plaintiff s Complaint. The words on the face of page 1 of the mortgage JOINED BY HER HUSBAND JACK DZIEDZIC were typed in a different size type and in a different font and were added to the document subsequent to the signing of same. Further, while the mortgage and adjustable rate rider and planned unit development rider are purportedly signed and initialed by both Defendants Elizabeth and Jack Dziedzic, the adjustable rate note is only signed by one, Elizabeth Dziedzic. Upon information and belief, the signatures are suspect and may not be genuine. 13. The Notice of Lis Pendens constitutes an impermissible cloud on the title of the Defendants subject property. Plaintiff s attorney knew, or should have known, that the subject mortgage was not recorded in Clay County and that the purported assignment of mortgage was fraudulent. The foreclosure should never have been filed, and the Notice of Lis Pendens should never have been 5
14. Defendants question the identity of the true owner and holder of the note and mortgage. In the event the assignment of mortgage proofs to be false or fraudulent, it would not be effective and the purported assignment to Countrywide Home Loans, Inc. for the benefit of Washington Mutual Mortgage Securities, Corp. would be invalidated. Upon information and belief, Washington Mutual Mortgage Securities, Inc., as investor, may be the true owner and holder of the note and mortgage. However, said corporation is not a party to this suit and has not been joined as a party, and may not have a valid assignment to the note and mortgage. Defendants assert that Washington Mutual Mortgage Securities, Inc. is a necessary and indispensible party to these proceedings and this case should be dismissed for failure to join an indispensible party. 15. Other grounds to be argued ore tenus. WHEREFORE, Defendants ELIZABETH DZIEDZIC and JACK DZIEDZIC pray that this Honorable Court grant to them the following relief: A. Dismiss Plaintiff s Complaint for Foreclosure with prejudice. B. Cancel the Lis Pendens filed against the subject property. C. Award cost, fees and sanctions against Plaintiff and Plaintiff s attorneys to be assess against Plaintiff and Plaintiff s attorneys. D. Grant such other and further relief as the Court deems equitable, appropriate and just. 6
CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Dismiss for Lack of Jurisdiction and For Fraud has been furnished to Vida Jasaitis, Esq. and April Glover Harriott, Esq., at the Law Offices of Marshall C. Watson, P.A. 1800 NW 49 th Street, Suite 120, Fort Lauderdale, FL 33309 this day of October, 2008. ELIZABETH DZIEDZIC, Defendant, pro se 2368 Country Side Drive Orange Park, FL 32003 Phone JACK DZIEDZIC, Defendant, pro se 2368 Country Side Drive Orange Park, FL 32003 Phone 7