DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT

Case No. 4D11-2794

Mickey Metzgar, Sharon Metzgar A/K/A Sharon J. Metzgar: et.al. Appellants,

) ) ) ) ) ) Vs ) ) ) ) U.S. Bank National Association, as, ) Trustee for The Structured Asset ) Securities Corporation Mortgage ) Pass-Through Certificate 2006-EQ1, ) Appellee, ) ________________________________)

_________________________________________ INITIAL BRIEF OF APPEALANT _________________________________________

Sharon Metzgar, pro-se 301 Henthorne Drive Lake Worth, FL 33461 Phone: (561) 797-6987 Fax: (561) 964-6035

TABLE OF CONTENTS

Pages
TABLE OF CONTENTS ...................................... i

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii OTHER AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . 2-5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8

THE PLAINTIFF, AS TRUSTEE, FAILED TO ESTABLISH ITS STANDING TO BRING THE FORECLOSURE ACTION AS A MATTER OF LAW.

CONCLUSION

.......................... ................... 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE APPENDIX

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (filed separately)

TABLE OF CITATIONS

Cases

Pages

Gee V. US Bank N.A, Case No. 5D10-1687, July Term 2011, Opinion Filed September 30, 2011 . . . . . . . . . . . . . . . . . . 7

Servedio v. U.S. Bank Natl Assn 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) ............ 7

OTHER AUTHORITIES

Authority

Pages

Florida Rules of Appellate Procedure 9.100(L)

. . . . . . . . . . . . . . . . . . . 11

Preliminary Statement

The appellant will be refereed to as The Appellant, The Defendant, or Sharon Metzgar.

The appellee will be referred to as The Appellee, The Plaintiff, US Bank N.A.. or US Bank.

All references to the record on appeal will be designated by (R) followed by a colon to indicate the appropriate page number.

All references to the trial transcript will be designated by (TT) followed by a colon to indicate the appropriate page number.

All references to the trial exhibits will be designated by (TE) followed by a colon and # to indicate the appropriate exhibit number.

An appendix, containing Gee V. US Bank N.A., a Florida Fifth District Court of Appeals decision reported 09/30/2011 is filed separately.

Statement of the Case and Facts

April 24, 2006, defendant Mickey Metzgar executes a promissory note in the amount of $193,700. He and his wife Sharon Metzgar execute a mortgage as security for the debt. Equifirst is the originating lender while MERS is designated as the lenders nominee. June 1, 2006 - 38 days after the Metzgar note and mortgage are inked and due date of the first mortgage payment payable to Equifirst - a trust agreement is executed by a company named The Structure Asset Securities Corporation, identified in the trust agreement as the depositor. With this agreement, the depositor creates the plaintiffs investment trust by transferring many, many thousands of notes and mortgages simultaneously into the trust with one signature. (TT: pg. 43), (TE; #1). The Metzgar note and mortgage are alleged among the many thousands transferred and assigned the very same day the first mortgage payment is due to Equifirst. Absent from this trust agreement and mortgage transfer - are Equifirst, the originating bank, and/or MERS, the originating banks nominee. (TE; #1), (TE; #3 - paragraph 3). January 09, 2007, seven months after the trust is created, the records custodian allegedly delivers the Metzgar note and mortgage documents to the plaintiffs trust sub-servicing company, Wells Fargo. (TT: 13).
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April 09, 2007, David J. Stern files the foreclosure complaint on behalf of U.S. Bank N.A. as Trustee for the Structured Asset Securities Corporation Mortgage pass-through Certificate Series 2006- EQ1. (R: 1). Count 1 paragraph 4 alleges, said mortgage was subsequently assigned to the plaintiff trust by virtue of an assignment to be recorded. A copy of the mortgage attached to the complaint however names Equifirst as lender and MERS as nominee not the plaintiff. The assignment is not attached and will not be executed and recorded until over 2- years and 4-months later. The note is not attached as well. There is absolutely no allegation, representation, or evidence of a blank allonge. Count 2 of the complaint seeks to enforce a lost note. (R: 1). November 20, 2008, the plaintiff motions for final summary judgment 1 year and 7 months after filing their complaint. The only show of standing in the record for the plaintiffs trust at this point is the allegation of an assignment contained in count 1 paragraph 4 of the complaint. (R: 34). September 28, 2009, the plaintiff files a Notice of Filing Assignment of Mortgage - a David J. Stern, self-prepared MERS assignment. The effective date is backdated from its August 03, 2009 execution date to as of March 29, 2007 - 10-months after Structured Asset Securities Corp. creates and sells the plaintiffs investment trust. (TT: 23), (TE: # 9).

The assignment is directly from Equifirst to the plaintiffs trust, effective 10 months after the trust is created, circumventing the trusts creator Structured Asset Securities Corp. revealing a broken ownership chain. July 6, 2010, David J. Stern attempts a second summary judgment three years and three months after filing the complaint. At this hearing the plaintiffs attorney, without warning or proper notice, for the first time, produces the original lost promissory note. This note also names Equifirst as lender - not the plaintiff. There is no endorsement to the note and there is not an allonge affixed to the note summary judgment is denied. (R: 88) September 13, 2010, a calendar call is heard three years and six months after the complaint is filed. After both sides announce ready, Judge Garrison finally sets the case for trial. The plaintiff announces one witness to appear and the trial date is set for November 15, 2010 at 10:30 am. (R: 120). October 28, 2010, Michael K. Winston, bar #051403 of Carlton Fields P.A. files a notice of appearance as co-counsel. He determines the case not ready for trial and immediately moves to strike the case from the trial docket over the appellants objections. (R: 147, 155). In addition, Mr. Winston lists numerous witnesses, seeks to strike the appellants answers, sets depositions, and a flurry of other pleadings.

The Michael K. Winston of Carlton Fields Era

November 03, 2010, Mr. Winston has Judge John Hoy Strike the case from the trial docket over the objections of the defendant. (R: 170) January 11, 2011, Mr. Winston conducts an oral deposition of defendant Sharon Metzgar. Without proper notice, Mr. Winston produces an allonge to the Metzgar note during defendant Sharon Metzgars deposition for the first time on January 11, 2011. The allonge is not dated, not notarized, and endorsed in blank. The allonge is not alleged in or attached to the original complaint. The allonge is not affixed to the original note when it is produced for the first time during plaintiffs summary judgment hearing on July 06, 2010. (TT: page 11, lines 1-12 & lines 19-22) (TE: # 3). March 31, 2011, Mr. Winston files a 68-page - third motion for summary judgment that is denied. (R: 389-457, 496). June 30, 2011, the trial is held. The appellant challenges US Banks standing to foreclose as trustee in both her affirmative defenses and at trial. (R: 357368), (TT: 54-55). Mr. Winston wins a final judgment of foreclosure for the plaintiff. Costs are assessed. This timely appeal follows.

ARGUMENT
THE PLAINTIFF, ITS AS TRUSTEE, TO FAILED BRING TO THE

ESTABLISH

STANDING

FORECLOSURE ACTION AS A MATTER OF LAW. June 1, 2006 - 38 days after the Metzgar note and mortgage are inked with Equifirst - a trust agreement is executed by a company named The Structure Asset Securities Corporation identified in the trust as the depositor. The depositor creates the plaintiffs trust with this agreement by transferring many thousands of notes and mortgages simultaneously to the trust with one signature. (TT: pg. 43 lines 7-12) (TE; #1). January 09, 2007, seven months after the trust is created, the records custodian allegedly delivers the Metzgar note and mortgage documents to the plaintiffs trust sub-servicing company, Wells Fargo. (TT: 13). This testimony by the plaintiff sub-servicer employee is in stark contradiction to the record. The note is claimed lost on April 09, 2007 and not produced for 3-years and 3-month after filing. The only document attached to the complaint is the mortgage. If all the documents were delivered together before the complaint was filed, why were copies of the note and allonge not produced until years later?

The appellee asks the court to believe the note was not lost in spite of the fact it was claimed lost in the complaint and not attached as one of the 4 exhibits to the plaintiffs summary judgment motion filed November 20, 2008 - one year and seven months after filing the complaint. If Ms Brusts testimony is true then the plaintiff and their attorneys purposely misled the court by claiming a lost note count when none existed. The appellant asks this court to adhere to the record that the note was lost, not convenient testimony after the fact that it was not. The appellant has spent countless hours over three years researching and defending against a lost note count that was according to the plaintiff fraudulent. Even if this testimony did not contradict the record, it still fails to place the note in the hands of Structured Asset Securities Corporation seven months prior on June 01, 2006, the day the trust was created. April 09, 2007, the complaint is filed and alleges a transfer of mortgage to the plaintiffs trust by virtue of an assignment to be recorded. The mortgage attached to the complaint names Equifirst as payee and MERS as nominee not the plaintiff. Count 2 seeks to enforce a lost note. (R: 1)

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August 3, 2009, plaintiff attorney, David J. Stern prepares a MERS assignment that is executed 2-years and 4-months after the complaint alleges. The assignment effective date is set to as of March29, 2007. (TE: # 9). The MERS assignment to the plaintiffs trust is invalid, executed and effective after the trusts creation. The plaintiff testifies that the purpose of the MERS assignment is record housekeeping. (TT: 24). The trust agreement is ineffective in transferring the Metzgar note and mortgage to the plaintiffs trust on June 01, 2006 because no evidence of a transfer exists from Equifirst to Structured Asset Securities Corp. US Bank N.A. failed to offer any proof of Structured Asset Securities Corporations authority to assign the Metzgar note and mortgage either by possession of the note on June 01, 2006, (claimed lost in the filed complaint 04/09/2007), or by assignment as alleged in the complaint. Gee V. US Bank N.A., Case No. 5D10-1687, Opinion Filed September 30, 2011: See also Servedio v. U.S. Bank Natl Assn, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) (explaining that plaintiff may submit evidence of assignment from payee to plaintiff or affidavit of ownership to prove its status as holder of note); At best, US Bank N.A., sub-servicer Wells Fargo, or even the records custodian, apart from the trust, may have standing to foreclose by allegedly

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possessing the Metzgar mortgage documents on January 9, 2007 - well after Structured Asset Securities Corp. created and sold the trust.

The appellant does not deny a foreclosure action exists, just that US Bank NA, as trustee, failed to establish standing as a matter of law.

CONCLUSION
The plaintiff as trustee, (the trust), failed to establish standing to bring this foreclosure action as a matter of law. Thirty-eight days after the Metzgar note and mortgage are inked with Equifirst Corporation on April 24, 2006, the Structured Asset Securities Corporation executes a trust agreement on June 01, 2006 creating the plaintiffs trust. This trust agreement is ineffective in transferring the Metzgar note and mortgage into the plaintiffs trust because nothing in the record gives Structured Asset Securities Corporation authority to assign the Metzgar note and mortgage, neither evidence of possession of the lost note nor by an assignment as alleged in the complaint. There is no record evidence of a transfer from Equifirst to the trusts creator and depositor, Structured Asset Securities Corporation, revealing a missing link in the ownership chain. The MERS assignment to the plaintiffs trust is invalid, executed and effective after the trust is created and sold.
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At best, US Bank N.A., apart from the trust, may have standing to foreclose by alleging delivery of the Metzgar mortgage documents from the records custodian to sub-servicer Wells Fargo on January 9, 2007 - well after Structured Asset Securities Corporation created an investment trust.

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Initial Brief has been sent by certified mail, return receipt requested, to the following: 1. Michael K. Winston, Esquire, Bar# 051403, 525 Okeechobee Bld, #1200, West Palm Beach, FL 33401 2. Elisabeth Amanda Romfh, Esquire, Bar# 073149, 525 Okeechobee Blvd, #1200, West Palm Beach, FL 33401

Done this _____ day of October 2011.

__________________________________ Sharon Metzgar, pro-se

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301 Henthorne Drive Lake Worth, FL 33461 Phone: (561) 797-6987 Fax: (561) 964-6035 [email protected]

CETIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the New Times Roman 14-point font size, spacing, and all other type requirements set forth in the Florida Rules of Appellate Procedure 9.100(L).

__________________________________ Sharon Metzgar, pro-se 301 Henthorne Drive Lake Worth, FL 33461 Phone: (561) 797-6987 Fax: (561) 964-6035 [email protected]

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