IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,

IN AND FOR PINELLAS COUNTY, FLORIDA.

REF:07-10805-CI-8

UCN:522007CA010805XXCICI

DIVISION: 008

U.S. BANK NATIONAL ASSOC., AS TRUSTEE,

PLAINTIFF,

AND

MICHAEL K. SMART, PRO SE

DEFENDANT.

MOTION TO/FOR:

MICHAEL K. SMART, PRO SE, RESPECTFULLY MOVES THIS HONORABLE COURT

TO GRANT THIS MOTION TO/FOR REOPEN AND DISMISS THIS CASE, AND AS

GROUNDS THEREFORE WOULD SHOW:

1. Florida Rules of Civil Procedure 1.540 Relief from Judgment, Decrees or

Orders Fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; that the

judgment or decree is void. Specifically in a mortgage foreclosure case,

Jeff-ray Corp. v. Jacobson, 566 So. 2d 885 (Fla. 4 DCA 1990) Further, inth

another mortgage foreclosure, WM Specialty Mortgage, LLC v. Salomon,

874 So. 2d 680 (FLA. 4 DCA 2004), (Which cites to Jeff-Ray) the trail courtth

vacated default entered. The Forth District Court of Appeals affirmed the

order vacating default. In that case the Forth District explained that an

evidentiary hearing was the appropriate forum. That a proper Motion

pursuant to Rule 1.540(b) for fraud upon the court which can be brought

at any time for one year after judgment has been entered. These cases are

strikingly similar to the facts of this case.

2. Plaintiff clearly committed fraud to the court stating it owned the note

and Mortgage and lead the court to believe that they filed the original

with the court. (See court file docket that they filed original on

08/24/2009), there is no original note and mortgage in the case file, only a

copy with the complaint and other copies that read unofficial copy from

the courts web site.

3. Plaintiff filed assignment of mortgage 8/21/2009 and again on 3/17/2010

and on 4/1/2010. The Plaintiff lacked standing to pursue foreclosure

Action. F.R.Civ.P 1.130(a) requires that a note upon which an action may

be brought, a copy of thereof, shall be attached to the pleading. There

was no copy of assignment because the assignment was issued after the

date of the complaint. The filing date of the complaint was filed on

10/24/2007 and the assignment was done on 11/5/2007 and since the

original mortgage was SMI-Credit Suisse Financial they needed the

assignment to possibly show interest in the property. In Jeff-Ray Corp. vs.

Jacobson. 566 SO.2d 885, the appellate court reversed the denial because

the assignment was not attached to the complaint. When Plaintiff later

produced the assignment, it reflected a transfer of interest some months

after the filing of the complaint. Jeff-Ray held a foreclosure action could

not be based on assignment instrument created after the complaint had

been filed. WM Specialty Mortgage v. Salomon, 874 SO.2d 680 (FLA 4th

DCA 2004), which held a written assignment executed after the complaint

was filed may be valid if the lender could prove that there was a equitable

assignment before the complaint was filed. The record in the instant case,

how ever, is devoid of any evidence of an equitable assignment and

existence of equitable assignment is factual issue to be determined at a

hearing. Defendants request this court to recognize and adopt persuasive

authority in the form of two recent federal court opinions from Ohio. In

these decisions, Judge Christopher Boyko and Kathleen O Malley of the

Northern District of Ohio dismissed foreclosure cases under similar

circumstances as the instant case. (see Exhibit A & B) These decisions

discuss the problems inherent to prosecuting foreclosure matters where

legitimate issues of standing arise and why sufficient proof of ownership

of the notes and mortgage at issue should be provided and the court

should require such proof. Though not binding authority, the defendant

ask the court to adopt the reasoning of these decisions in concluding that

Florida law imposes similar requirements in satisfaction of basic due

process principles relating to real party in interest issue. Federal Circuit

Courts have ruled that the only way to prove the perfection of any

security, including promissory notes, is by actual possession of the

security. Current or prior possession must be proven. See Downing v. First

National Bank of Lake City, 81 SO.2d 486 (FLA, 1955); Figueredo v. Bank

Espirito Santo, 537 SO,2d 1113 (FLA. 3 DCA 1989); Pastore-BorrotoRD

Development, Inc v. Marevista Apartsments, M.B. Inc, 596 SO. 2d 526 (FLA

3 DCA 1992); Nat’l Loan Investors, L.P v. Joymar Asocs, 767 SO 2d 549,rd

551 (FLA 3 DCA 2000). “Only those who have standing to be heard in therd

judicial proceeding may participate in it. “Byrom v. Gallagerher, 578 SO.

2d 715, 717 (FLA. 5 DCA 1991) One who does not have ownership,th

possession, or the right to possession of the mortgage and the obligation

secured by it, may not foreclose the mortgage.” 37 Fla. Jur. Mortgage

and Deeds of trust Sec 240, citing in re: Shelter Development Group, Inc.

50 B.R. 588 (Bankr. S.D. Fla. 1985).

Plaintiff attached to the complaint a mortgage identifying SMI-CREDIT

SUISSE FINANCIAL, an entity that is not the Plaintiff, as the owner and

holder of the mortgage. This document conflict with the Plaintiff’s

allegations of material facts in the complaint as to ownership of the

subject note and mortgage.

The Plaintiff’s complaint fails to contain sufficient fact to establish who

the Plaintiff is or the Plaintiff’s relationship to the Defendant, or the

Plaintiff’s relationship or connection to the claim for foreclosure of a

mortgage, including the failure to identify the mortgage and note to the

Plaintiff. The Plaintiff alleges it is the owner and holder of the subject

note and mortgage. These allegations are directly conflicting with the

mortgage attached to the complaint, thereby rendering the complaint

insufficient to identify who the Plaintiff is or what facts establish the

standing of the Plaintiff to file and prosecute this foreclosure.

Again Fla. R. Civ. P. 1.130(a) provides in pertinent part: “All bonds, notes,

bills of exchange, contracts, accounts or documents upon which action

may be brought or defense made, or a copy of the portions thereof

material to the pleadings, shall be incorporated in or attached to the

pleading.

When exhibits are inconsistent with the Plaintiff’s allegations of material

facts as to the real party in interest, such allegations cancel each other

out.

Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240

(Fla.2000);Greenwald v. Triple D Properties, Inc., 424 So.2d 185,187(Fla.

4 DCA 1983); Costa Bella Development Corp. v. Costa Developmentth

Corp., 441 So. 2d 1114 (Fla. 3 DCA 1983).rd

Florida Rule of Civil Procedure 1.130(b) provides in pertinent part: “Any

exhibit attached to a pleading shall be considered a part thereof for all

purposes.”

Because the facts revealed by Plaintiff’s exhibits are inconsistent with

Plaintiff’s allegations as to the ownership of the subject note and

mortgage, those allegations are neutralized and Plaintiff’s complaint is

rendered objectionable.

Greenwald v. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 4 DCAth

1983).

1. Florida Rule of Civil Procedure 210(a) provides in pertinent part: “Every

action may be prosecuted in the name of the real party in interest, but a

personal representative, administrator, guardian, trustee of an express

trust, a party with whom or in whose name a contract has been made for

the benefit of another, or a party expressly authorized by statute may sue

in that person’s own name without joining the party for whose benefit

the action is brought.”

The Plaintiff in this action meets none of the aforementioned criteria.

Because the exhibits attached to Plaintiff’s complaint are inconsistent

with Plaintiff’s allegations as to ownership of the subject promissory note

and mortgage, Plaintiff has failed to establish itself as the real party in

interest.

The Plaintiff is not the real party in interest in this mortgage foreclosure

action under Florida law, which clearly requires the plaintiff in a

foreclosure action must own the note and mortgage in question in order

to be entitled to maintain the action. Your Construction Center, Inc. v.

Gross, 316 So.2d 596 (Fla. 4 DCA 1975) (finding that the plaintiff, ath

trustee of a Massachusetts business trust, was “the sole payee on the

note and motgage” and held that “…when plaintiff files his complaint, he

must necessarily allege he is the owner and holder of the note and

mortgage in question”)(citing 22 Fla. Jur., Mortgages Sec. 314 (1958)).

Plaintiff attaches a mortgage to the complaint in compliance with Florida

Rule of Civil Procedure 1.130(a). The mortgage attached, however,

conflicts with the allegations of material facts in the complaint in which

Plaintiff claims it is the holder of the mortgage and note. See Jeff-Ray

Corp. vs. Jacobson, 566 So. 2d 885 (Fla. 4 DCA 1990) (citing Safeco Ins.th

Co. vs. Ware, 401 So 2d 1129 (Fla. 4 DCA 1981)(dismissing complaint forth

failure of insurer to attach insurance policy).

4. Plaintiff filed a complaint with State of Florida claiming possible mortgage

fraud on part of the Defendant which was proven untrue.

5. It is clear to the Defendant that the Plaintiff has committed fraud upon

the court.

6. The Defendant asks the court if motion is denied to place a order as to

the sale or transfer of property so Defendant can file with Court Of

Appeals and not bring a 3 party into this case. rd

7. The Defendant prays that the court reviews the file and grant a rehearing

on the basis it finds.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

Furnished to the following individuals, this 3 day of August, 2010.

Michael A. Curry Vicki Sears

Awerbach & Cohn, P.A. 310 89 Ave. N.th

One Prestige Place St. Petersburg, FL 33702

Suite 100

2600 McCormick Dr. Linda K. Johansen, Esquire

Clearwater, FL 33759 Pinellas County Sheriffs Office

P.O. Drawer 2500

Michael A. Cohn Largo, FL 33779-2500

Awerbach & Cohn, P .A.

One Prestige Place William

Donovan Suite 100 2901

58 Ave. N. 2600 McCormick Dr. S1.th

Petersburg, FL 33714 Clearwater, FL 33759

Pinellas County Clerk of Court

Billy Reider, Esquire c/o Ken Burke, R.A.

Florida Default Law Group, P.L. 315 Court

S1.

P.O. Box 25018 Clearwater, FL 33756

Tampa, FL 33622-5018

Sheryl L. Brant

For B & D Resources, Inc.

2001 44th St. S.

St. Petersburg; FL 33711

__________________________________________

Michael K. Smart,

Pro Se 5354 10 Ave. N. th

S1. Petersburg, FL 33710

EXHIBIT “A”

EXHIBIT “B”