IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA, GENERAL CIVIL DIVISION

CHASE HOME FINANCE, LLC, Plaintiff v. RICHARD PONCE, et al., Defendants _________________________________________/ MOTION FOR SUMMARY JUDGMENT Defendant Victoria Ponce, by and through her undersigned attorney, files this motion for summary judgment on the grounds there is no genuine issue of material fact in dispute and Defendant is entitled to a summary judgment dismissing this case as a matter of law and in support thereof states as follows:
1.

Case No. 52-2008-CA-012751

Defendant Victoria Ponce signed the mortgage a copy of which is attached to the complaint, which mortgage was originally recorded on October 5th 2005 in O.R. Book 14655, Page 1930, of the Public Records of Pinellas County, Florida.

2.

That said mortgage explicitly states in paragraph (C) on page 1 of the instrument (in bold print) that MERS is the mortgagee under this security agreement.

3.

The grant language which operates as the conveyance of the specific real estate lien interest to the mortgage appears on page 3, and reads as follows: Borrower does here mortgage, grant and convey to MERS.

4. 5.

According to said grant language MERS is the holder of said mortgage. That the mortgage, however, limits or restricts the mortgage conveyance to MERS by identifying said holders interest under the mortgage with the additional language: Solely as nominee for Lender.

6.

Said mortgage further limits or restricts the holders grant by use of a redendum

clause that does not grant MERS the power or authority to transfer or sell the mortgage, nor the power to assign or convey its interest or duties as nominee.
7.

The mortgage does not otherwise define the term nominee nor does it contain, by incorporation, any other written extrinsic document expanding the power or authority of MERS beyond that restrictively granted in the mortgage.

8.

That since the recording of this mortgage only one purported assignment of mortgage appears in the official record books of the public records of Pinellas County, Florida: Document dated November 10th, 2008 between MERS as assignee and Plaintiff was recorded on November 26, 2008 in O.R. Book 16437, Page 1053, Public Records of Pinellas County, Florida.

9.

That said assignment bears an incomplete blank regarding its effective date. Said assignment came without any recorded power of attorney or other valid and recordable authorization or power to act on behalf of the original lender, IRWIN.

10. As a result of the above unrefutable facts, there is a Failure of Title regarding the ownership and holdership by Plaintiff of the note and mortgage forming the res of this action. (Affidavit of Gregory D. Clark, a copy of which is attached). WHEREFORE, Victoria Ponce requests this Court to grant this motion and enter a judgment dismissing this case with prejudice and any other relief to Court deems proper and just. I HEREBY CERTIFY that a true and correct copy of the foregoing is being furnished by U.S. mail on March 3, 2010, to Kerry Green, 1800 N.W. 49th St., Suite 120, Fort Lauderdale, FL 33309. Randall O. Reder

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