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BANK, N.A., Case No. 502008CA038752XXXXMB Plaintiff, v. BRETT DUBOIS, ET AL., Defendants. _______________________________________/ MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE NOW COME Brett Dubois, et al. (Defendants herein), who hereby file this Memorandum in Support of the Motion to Set Aside Final Judgment. In support thereof, Defendants state: LEGAL STANDARDS COURT HAS AUTHORITY TO SET ASIDE JUDGMENT 1. Fla. Stat. 702.07 reads in pertinent part: Power of courts and judges to set aside foreclosure decrees at any time before sale. The circuit courts of this state shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs. 2. Fla. Stat. 60.01 similarly proscribes the Court such power: When real estate is levied on, or an attempt to sell it under any execution or other process is made, or an attempt to sell it as the property of another is made, chancery courts have jurisdiction to enjoin the sale on the application of the owner in possession of the real estate. 3. Even after certificates of sale have been issued, courts have set aside foreclosure judgments. The District Court in Sterling found that Fla. Stat. 702.07 should be construed liberally in favor of a defendant-homeowner. Sterling Factors Corporation v. U.S. Bank Natl. Assoc., 968 So.2d 658 (Fla. 2d. DCA 2007). 4. Fla. R. Civ. Pro. 1.540(b) reads, in part: Relief from Judgment, Decrees, or Orders; On motion and upon such terms as are just, the court may relieve a party from a final judgment for the following reasons: (2) newly discovered evidence which by due diligence could not have been discovered, (3) fraud, misrepresentation, or other misconduct of an adverse party or (5) it is no longer equitable that the judgment or decree should have prospective application.

HIGH BAR TO ACHIEVE SUMMARY JUDGMENT 5. Per Fla. R. Civ. Pro. 1.150(c) the successful motion for summary judgment must show that there [are] no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See also Celotex Corp. v. Catrett, 477 U.S. 317 (1986). 6. Regarding summary judgments, the Court must draw every possible inference in favor of the nonmoving party. Kitchen v. Ebonite 6 Recreation Ctrs., Inc., 856 So.2d 1083, 1085 (Fla. 5th DCA 2003). 7. The slightest doubt will bar an entry of summary judgment. Mivan (Fla.), Inc. v. Metric Const., Inc. 857 So.2d 901, 902 (Fla. 5th DCA 2003). 8. Nonetheless, in a foreclosure case, a plaintiff need only definitively show two facts: 1) that it owns and holds the note and mortgage, and 2) that Defendant is in default. Law Office of Stern v. Security Natl. Corp. 969 So.2d 962 (Fla. 2007), Your Const. Ctr., Inc., v. Gross, 316 So.2d 596 (Fla. 4th DCA 1975). ARGUMENTS PLAINTIFF HAS NOT DEFINITIVELY SHOWN IT OWNS AND HOLDS THE NOTE AND MORTGAGE 9. In Paragraph 5 of the Complaint, Plaintiff states: The Plaintiff owns and holds the Note and Mortgage. 10. In the same Complaint, Plaintiff presents a cause of action to enforce a lost, destroyed, or stolen promissory note and mortgage under Fla. Stat. 673.3091. Plaintiff states therein, Plaintiff is not presently in possession of original Note and Mortgage. Complaint, Paragraph 18. 11. Fla. R. Civ. Pro. 1.130 reads as follow: All bonds, notes, bills of exchange contracts, accounts or documents upon which an action may be brought shall be incorporated in or attached to the pleading. 12. Plaintiff, in an attempt to circumnavigate the requirements imposed by Fla. R. Civ. Pro. 1.130, attached to the Complaint two exhibits: a. An Exhibit A consisting of the first page of an alleged Mortgage, naming Brett Dubois as Borrower and Americas Wholesale Lender as Lender; and b. An Exhibit B, whereby the purported terms of the Note at issue are detailed. 13. These attachments are not sufficient evidence of ownership. 14. Assuming pro arguendo that Plaintiffs attachments were sufficient, the Mortgage itself lists Americas Wholesale Lender as Lender. However, no valid assignments, transfers, or

endorsements, have been filed with the Court with reference to the Mortgage, nor have any such documents been recorded by the County.

15. The manner by which Plaintiff acquired ownership the Mortgage and Note at issue has not been addressed. 16. Plaintiff is a securitized trust: US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR JPMORGAN ALTERNATIVE LOAN TRUST 2006-S4. 17. No subsequent original Note, Mortgage, or Assignment has been filed, and no Affidavit has been filed in reference to the Lost Note. No explanation has been offered as to the whereabouts of such documents. 18. Pursuant to Fla. Stat. 673.3081, Defendants specifically deny the authenticity of the Mortgage, the Note, and any other such documents used to support allegations of ownership. PLAINTIFF HAS NOT DEFINITIVELY SHOWN THAT DEFENDANT IS IN DEFAULT 19. Plaintiff alleged default on the part of Defendants, and submitted an Affidavit in Support of Motion for Summary Judgment as the sole evidence of such. 20. Fla. R. Civ. Pro. 1.510(e) states: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein 21. Regarding personal knowledge and the admissibility of evidence, Affiant Diane Young-Asst. Secretary states the following: I have direct access to or have been provided with the business records of the Plaintiff concerning the Note and Security Agreement, the Mortgage and other loan documents which are the subject matter of this lawsuit, such records were made at or near the time by, or from information transmitted by, a person with knowledge, such records were kept in the course of the regularly conducted business activity of the plaintiff, and it was the regular practice of the plaintiff to make such records. Affidavit, Paragraph 3. 22. The statement above makes no logical or grammatical sense. However, said statement can reasonably be read as follows: I have been provided with the business records of the Plaintiff... [S]uch records were made from information transmitted by a person with knowledge 23. The suggestion here is that someone else, a different or other person with knowledge, has informed the affiant, and such is hearsay, as defined by Fla. Stat. 90.801. 24. Hearsay is inadmissible as evidence, pursuant Fla. Stat. 90.802 and in violation of Fla. R. Civ. Pro. 1.510(e). 25. Plaintiff may assert that the records upon which Affiant relied are business records, and as such these records are permissible as an exception to the hearsay rule per Fla. Stat. 90.803(6). Assuming pro arguendo that Plaintiff does assert such an exception, Plaintiff still need lay the foundation for admissibility.

26. Regarding admissibility and competency, the Affiant merely states she has custody of and supervises the mortgage accounts and records of the Plaintiff. Affidavit, Paragraph 1. This has not been enough for Florida DCAs, which have required testimony as to the completeness and correctness of records, the familiarity of an Affiant with the business of Plaintiff, and a showing by Affiant that a practice or order is followed regarding the production of the records used. Thompson v. Citizens Natl. Bank of Leesburg, 433 So.2d 32, 33 (Fla. 5th DCA 1983), Alexander v. Allstate Ins. Co., 388 So.2d 592, 593 (Fla. 5th DCA 1980), Johnson v. DHRS, 546 So.2d 741, 743 (Fla. 1st DCA 1989). Additionally, there is no mention of the Affiants skills or the manner in which she calculates or derives her information. 27. Moreover, Fla. Stat. 90.901 requires that Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. However, no

documentation was attached to the Affidavit as issue, nor have any such documents been provided Plaintiff or the Court. 28. Failure to attach documents to an Affidavit upon which Summary Judgment relies is a more than adequate reason to deny Summary Judgment. CSX Transp., Inc. v. Pasco County, 660 So.2d 757 (Fla. 2d DCA 1995); Zoda v. Hedden, 596 So.2d 1225 (Fla. 2d DCA 1992); Crosby v. Paxson Elec. Co., 534 So2d 787 (Fla 1st DCA 1988). 29. Even still, Affiant appears as an authorized signator of COUNTRYWIDE HOME LOANS. Affidavit, Paragraph 1. 30. The relation between Plaintiff and COUNTRYWIDE HOME LOANS remains obscure, as does the source of Diane Young-Asst. Secretarys authority. 31. Upon knowledge and belief, Defendants aver that Plaintiff, Plaintiffs attorneys and/or Plaintiffs agents have fabricated documents in violation of Fla. Stat. 831.06; specifically, Defendants allege the falsification of the Affidavit submitted this Court. 32. Defendants ask the Court to take notice of the alarming pattern and practice of falsifying documents and committing fraud on this Court in an attempt to wrongfully deprive parties of their property. 33. Plaintiff will NOT be able to establish a valid chain of title. CONCLUSION 34. Here, Defendant moves to set aside a Final Judgment for foreclosure, being that said Judgment was based on a fraudulent Motion for Summary Judgment. 35. At issue are questions of fact: Plaintiffs Complaint alleges default on a Mortgage, however, Defendant has challenged herein the authenticity of said Mortgage and Note.

_______________________________________ Joann M. Hennessey, Esq. (FBN 0192465) Attorney for Defendants, Brett Dubois, et al. LawOffices of Joann M. Hennessey, P.A. 620 NE 76th Street Miami, FL 33138 T: 305.200.5115 C: 305.710.8366 F: 305.200.3664 CERTIFICATE OF SERVICE The undersigned certifies that a true copy of the foregoing Memorandum in Support of Motion to Set Aside has been sent by ordinary U.S. mail to the Palm Beach Clerk of Court, P.O. Box 4667, West kPalm Beach, Florida 33402-4667, and setn by both facsimile (954.462.7001, 954.233.8333) and ordinary U.S. mail to Jonathan Blackmore, Esq., Phelan Hallinan, PLC, 888 SE 3 rd Ave. #201, Ft. Lauderdale, FL 33316 and Ralph Mora, Esq., Law Offices of David J. Stern, P.A., 900 S. Pine Island Rd. #400, Plantation, FL 33324, respectively, this 2nd day of June, 2011.

_______________________________________ Joann M. Hennessey, Esq. (FBN 0192465) Attorney for Defendants, Brett Dubois, et al. LawOffices of Joann M. Hennessey, P.A.