Denial of Motion to DQ â Cert Petition - Stopa Law Firm

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Benefit of the Certificateholders of Popular ABS, Inc. Mortgage Pass-Through Certificates Series 2005-5 (“the Bank”). This Court has original jurisdiction under Fla.R.App.P. 9.030(b)(2) to enter a Writ of Certiorari. NATURE OF THE RELIEF SOUGHT 2. Petitioner seeks a Writ of Certiorari from this Court, quashing an Order of the lower court denying the Motion to Disqualify Counsel (“Motion to Disqualify”), and directing the lower court to enter an order of disqualification of Shapiro as counsel for the Bank. 3. Alternatively, Petitioner seeks a remand for an evidentiary hearing on the disputed factual issues set forth in the Motion to Disqualify. FACTS: BACKGROUND 4. On October 12, 2009, the Bank initiated the lower court case, through its counsel, Shapiro, by filing suit against Petitioners as well as Nominal Respondent, Mortgage Electronic Registration Systems, Inc. (“MERS”), as Nominee for Unimortgage, LLC (“Unimortgage”). In the Complaint, the Bank seeks foreclosure of a mortgage; a copy of the Note and Mortgage are attached thereto. See Appendix to Petition, 1. 5. The Note was entered on behalf of Unimortgage, not the Bank. See Appendix to Petition, 1, Exhibit “A.” The Mortgage was entered on behalf of MERS, as Nominee for Unimortgage, not the Bank. See Appendix to Petition, 1, 2
Exhibit “A.” As such, it is axiomatic that the Bank’s standing to prosecute this lawsuit is predicated on some type of transfer of the Note and Mortgage from Unimortgage and/or MERS to the Bank. See Appendix to Petition, 1, 7 (“Prior to the filing of this action, Plaintiff acquired the right to enforce the Note and Mortgage from the party entitled to enforce the Note and Mortgage.”). Significantly, nowhere in the Complaint did the Bank clarify how it had acquired the right to enforce the Note and Mortgage, i.e. whether there was a valid assignment, proof of purchase of the debt, or some other form of transfer. See Appendix to Petition, 1. 6. After MERS did not respond to the Complaint, the Bank sought and obtained entry of a clerk’s default against it. See Appendix to Petition, 2. The Bank’s Motion for Default against MERS was executed by Shapiro, and the Affidavit of Service attached thereto reflects that service was effectuated by a process server company called ProVest, LLC. See Appendix to Petition, 2. 7. Respondents timely responded to the Complaint by way of Motion to Dismiss, alleging the Bank failed to plead sufficient ultimate facts showing its ability to foreclose a Note and Mortgage in the name of MERS. See Appendix to Petition, 3. Said motion has yet to be adjudicated, but the pendency of the motion reflects that the Bank’s standing, and its ability to prove a valid transfer of the Note and Mortgage, will be significant issues as the case is litigated. 3
Page 1: MARCUS FRANKLIN and MELISSA FRANKLI
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Page 11 and 12: was largely predicated), purportedl
Page 13 and 14: 52-53. A written Order followed, se
Page 15 and 16: provides: 30. Meanwhile, Rule 4-1.1
Page 17 and 18: 33. The Comment to Rule 4-1.7, R.Re
Page 19 and 20: II. THE LOWER COURT’S FAILURE TO
Page 21 and 22: MERS (and hence has a conflict unde
Page 23 and 24: 45. Petitioners could go on and on
Page 25 and 26: esponsibilities to each client and
Page 27 and 28: 54. Respectfully, it would be hard
Page 29: CONCLUSION 57. In light of the fore

Denial of Motion to DQ â Cert Petition - Stopa Law Firm

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Denial of Motion to DQ â Cert Petition - Stopa Law Firm