IN THE CRCUIT COURT OF THE TWELFTH JUDICAL CRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE UNDER THE INDEENTURE RELATING TO IMH ASSETS CORP., COLLATERAUZED ASSET -BACKED BONDS, SERIES Z004-10

Plaintiff,

vs.

ELLEN LAPERRJERE,

Defendant.

CASE NO. ZOO8 CA OUS87 NC

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ORDER ON DEFENDANT'S MOnON TO SET ASIDE FOREaOSURE JUDGMENT

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This case was heard on defendant's motion to set aside the foreclosure judgment entered in this

case on April 18, 2011. The court being fully advised in the premises, finds and decides as follows:

On October 26, 2004, defendant executed and delivered an Adjustable Rate Note to IMPAC

FUNDING CORPORATION DBA IMPAC LENDING GROUP. The note is secured by a mortgage. The

mortgagee is Mortgage Electronic Registration Systems, Inc. (MERS), as nominee of IMPAC. Copies of

the note and mortgage are attached to this order for ease of reference.

Plaintiff sued defendant seeking foreclosure of the mortgage in 2008 and received the

foreclosure judgment at issue on April 18, 2011.

Defendant attacks the judgment on two fronts, which this court finds to be interrelated and

interdependent. One basis for attack is this court's subject matter Jurisdiction. The court rejects this

argument without further comment.

Defendant argues that plaintiff did not have standing to sue when this action was filed. She also

argues that plaintiff committed a fraud on this court when it alleged that plaintiff and its original lawyer,

included in its complaint that plaintiff was the owner and holder of the note and mortgage by virtue of

aSSignment. The record supports defendant's arguments.

The court finds that no assignment of the note and/or mortgage in favor of the plaintiff had

been made prior to the filing of the complaint in this case. In fact, the first effort at assignment did not

take place until 2010. Plaintiff attempted to cure this pleading discrepancy in it affidavit In support of

motion for summary judgment. To no avail. The affidavit merely highlights the complaint's lack of

candor on this point. Furthermore, the affiant was not the proper witness to establish the authenticity

of plaintiffs records.

Plaintiff argues that the note was in its posseSSion, i.e., it was the holder of the note, by virtue of

an endorsement in blank stamped on the back of the note. Therefore, plaintiff argues it is the real party

in interest entitled to pursue this action. Plaintiff might be correct if, as plaintiff argues, this was a

matter governed by Section 673.1041(1), Florida Statutes. However, 673.1041(1)(c), Florida Statutes,

only applies to negotiable instruments. This note in issue is not a negotiable instrument. The subject

note contains numerous undertakings or instructions to do acts in addition to the payment of money.

For example, the note requires the borrower to notice of prepayment and prohibits prepayment if the

borrower has not made all monthly payments under the note. Likewise, the note refers to undertakings

set forth in the mortgage which are in addition to the payment of money. Plaintiff likely takes the

pOSition that this mere reference does not create undertakings in addition to the payment of money.

Nonsensel It is clear that Section 11 of the note is intended for one purpose, and one purpose only - to

impress upon the borrower that she is undertaking acts in addition to the payment of money.

The note in this case is a non-negotiable instrument. As such, it must be transferred by sale or

assignment, not by endorsement in blank. No evidence of sale or assignment is offered that would save

this plaintiff from the long-settled law of Florida that foreclosure must be brought by the owner and

holder of the note and mortgage.

Plaintiff lacked standing to file this action against defendant.

Plaintiff and its counsel, David J. Stern, committed a fraud upon this court at the time of filing

the complaint in this case.

IT IS THEREFORE ORDEREDED that the foreclosure judgment entered in this case on April 18,

2011, is vacated and set aside.

IT IS FURTHER ORDERED that defendant is entitled to recover reasonable attorney fees and

taxable costs incurred in the prosecution of defendant's motion to set aside foreclosure judgment. The

court reseNes jurisdiction to determine the amount of attorney fees and costs to be awarded.

ORDERED at Sarasota, Florida this 10th day of December, 2012.

Copies to:

Albertelli law Ashley Arenas, Esquire Sandy Levitt, Esquire Keith A. Fousek, Esquire Lari J. LaPerriere