Looks like it’s on like Donkey Kong again…
For those of you that do not know the term, “It’s On Like Donkey Kong” I provide the definition below…
“A phrase to denote that it’s time to throw down or compete at a high level; something is about to go down. The use of the comical video game character Donkey Kong provides comic relief but the phrase itself has greater or more significance than simply its on.”
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR THE
CERTIFICATE HOLDERS OF
SOUNDVIEW HOME LOAN TRUST
CERTIFICATES, SERIES 2006-OPT2,
LYNN E. SZYMONIAK, et al.,
OBJECTION TO CONTINUED — USE OF ORIGINAL
COURT DOCUMENTS BY PLAINTIFF
Excerpts from the pleading…
COMES NOW, Defendant Lynn E. Szymoniak, by and through undersigned counsel, and objects to the Court allowing the law firm Akerman Senterfitt and the Plaintiff to continue to maintain the Clerk’s original file documents. Further, Defendant requests that the Court instruct the Akerman Senterfitt firm to return the documents to the Clerk immediately.
The original complaint in this action was filed without the note attached to the complaint. The original complaint included a “lost note” count in which it was alleged that “4.The original promissory note was lost or destroyed subsequent to Plaintiff’s acquisition thereof, the exact time and manner of said loss or destruction being unknown to Plaintiff.1”
On or about, December 23, 2009, the Plaintiff caused to be filed a document entitled “Notice of Filing” to which was ostensibly attached a “ORIGINAL NOTE, ORIGINAL MORTGAGE, ACCELERATION LETTER, PAYMENT HISTORY and a copy of recorded ASSIGNMENT OF MORTGAGE.”
The undersigned went to view the official file in the Clerk’s office on February 8, 2011 to look at the original documents contained in Plaintiff’s Notice of Filing. Of concern to the undersigned, inter alia, was the condition of the original documents which were in the filing, whether these documents were originals, and whether the allonge was attached to the Note. See Exhibit A, Pictures of Note, Mortgage and Allonge as they appeared in Clerk’s file.
The allonge in blank must be permanently attached to the note in order for it to be effective. F.E. Booker v. Sarasota, Inc., 707 So.2d 886, 887 (Fla. 1st DCA 1998)
The current law firm for Plaintiff, Akerman Senterfit, filed its first Motion for Temporary Release of Original Note, Allonge to Note and Mortgage on or about April 1, 2011.
When the hearing was originally held on the Akerman Senterfit Motion, the firm was represented by Nathaniel D. Callahan. In a conference immediately prior to the hearing on the Motion, the undersigned explained the Defendant’s objection to the granting of the Motion as making sure that the order of the documents was not disturbed and that the documents not be manipulated, destroyed or damaged, as Defendant raised the issue that the Allonge was not permanently attached to the Note. The condition of the Note and the fact that it was not attached to the Allonge was important to the Defendant.
During the undersigned’s inspection of the official Clerk’s file on February 8, 2011, the undersigned took note of the sequencing of the documents in the file and the condition of the documents in the file.
The undersigned observed that the Note was immediately in front of the Mortgage in the official Clerk’s file. The Allonge was not adjacent to the Note and was not immediately before or after the Note in the official Clerk’s file. The Note was separated from the Allonge by many pages.
The undersigned also observed that the Allonge was free of any holes in the upper left corner which would indicate that the allonge had never been stapled as a means to permanently attach the Allonge to the Note. Photographs of copies of the Note, Mortgage and Allonge as it was placed in the official Clerk’s file records are attached as Exhibit A.
Subsequently the Akerman Senterfitt firm sought again to remove the documents for use at the Lynn E. Szymoniak deposition, which was scheduled initially for January 31, 2012, and which was cancelled by Plaintiff on the day of that deposition, and then reset for March 9, 2012. The Court granted the subsequent request to remove the original documents and in its order ruled “The Clerk shall substitute certified copies for the originals removed. The certified copies shall be returned to the Plaintiff’s counsel upon return of the originals to the court file.”
At the deposition, Akerman Sentefit, with its six attorneys present, asked the Defendant Lynn E. Szymoniak to identify the Mortgage, Note and Allonge which had been removed by the Akerman Senterfitt firm for the purpose of using same for questioning at the deposition.
It was at that time that the Defendant Lynn E. Szymoniak and the undersigned discovered that Akerman Senterfitt had altered, destroyed and damaged the documents which had been entrusted to the firm.
In particular, Akerman Senterfitt had repeatedly stapled and otherwise put holes in the Allonge which had never existed before. This was done in an apparent attempt to make the original Allonge appear to have been permanently affixed to the Note in this case in order to overcome the ineffectiveness of the Allonge, as it had not previously been attached to the Note. There was no other reason for Akerman Senterfitt to damage the official Clerk’s documents.
Curiously, only Akerman Senterfitt had access to these documents once they left the possession of the Clerk.
Plaintiff’s counsel Akerman Senterfitt certainly had an interest in countering the argument of Defendant Lynn E. Szmoniak that not only was the Allonge not permanently attached to the Note but it was also never adjacent to the Note in the original Clerk’s files.
By the renumbering of the documents in the original Clerk’s files, the Plaintiff, possibly through its attorneys Akerman Senterfitt, tried to suggest that the Allonge was properly adjacent to and permanently attached to the Note, when in fact it was not.
The tomfoolery associated with the damage done to the original Clerk’s file documents and the apparent manipulation of the sequencing of documents in the original Clerk’s file indicates that the Plaintiff through its attorneys has either (1) innocently stapled and restapled and restapled the previously unstapled Allonge and has somehow innocently realigned the numbering on the official Clerk’s file documents or (2) it has allowed or intentionally did cause the damage to occur to the Allonge because it was in the interests of the Plaintiff to remove the defense offered by the Defendant or it has allowed or intentionally did cause the numbering on the documents to be altered or re-sequenced the documents prior to numbering because it was in the interests of the Plaintiff to remove the defense offered by the Defendant.
Remember, this is the same firm that named Lynn’s son in her foreclosure to try and destroy his reputation and credit…
Shortly after appearing on “60 Minutes” Szymoniak won a major victory in her own foreclosure case. The court found that Deutsche Bank was unable to demonstrate ownership of her mortgage, which had originally been issued by the defunct subprime mortgage lender Option One, and threw the case out.
Deutsche Bank was permitted to refile their case if they could obtain proper documentation, however. And on Friday, May 6, Szymoniak received a notification from the bank’s lawyers that she was again being sued for foreclosure.
But Deutsche Bank wasn’t just going after her. The bank was also attempting to sue her son, Mark Cullen, who is currently pursuing a graduate degree in poetry at the New School in New York. Cullen hasn’t lived in Szymoniak’s house for seven years and is not a party to any aspect of her mortgage — he has no interest in either the property or the loan, and never has had any such interest, according to Szymoniak.
“It is just absolute harassment,” Szymoniak said. “He doesn’t own anything, for god’s sake! He’s getting a masters in poetry.
Full pleading below…
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