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Motion to Dismiss FL 120731

Motion to Dismiss FL 120731

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Published by robchaney
Plaintiff's attorney Noam J. Cohen signed the Statement of Claim. A notary signed the Claim saying the Claim was "sworn to and subscribed" before her, but no signature for Plaintiff or an "affiant" are listed on the Claim. Attorney Cohen, also, filed a purported nonresident bond under Florida Statute 57.011 and he signed it in apparent violation of F.S. 454.20 and the Judicial Rules of Administration, Rule 2.505(c). Sanctions are requested under F.S. 57.105. Defendant bought car from an Auto Dealer with a cash down, a trade-in, and a warranty purchase on the drive train. Plaintiff is not the Auto Dealer, but falsely claims Defendant bought "goods" from Plaintiff. No assignment is alleged, but a blank assignment box is on a "contract" attached to the Claim. Rather than dismiss the Claim at the pre-trial conference on 31 July 2012 (57 days after the Claim was filed) the judge told Defendant to set a hearing date for her Motion to Dismiss and for Sanctions. The Hearing is set for 24 August 2012 at 2:15 PM in Room 1-B in Sebring, Florida. - UPDATE - At the Hearing on the motion (24 August 2012), Judge Ritenour denied in part re the Bond, but granted Kellie's motion re capacity, standing and "no cause of action." The Judge is going to prepare the order.
Plaintiff's attorney Noam J. Cohen signed the Statement of Claim. A notary signed the Claim saying the Claim was "sworn to and subscribed" before her, but no signature for Plaintiff or an "affiant" are listed on the Claim. Attorney Cohen, also, filed a purported nonresident bond under Florida Statute 57.011 and he signed it in apparent violation of F.S. 454.20 and the Judicial Rules of Administration, Rule 2.505(c). Sanctions are requested under F.S. 57.105. Defendant bought car from an Auto Dealer with a cash down, a trade-in, and a warranty purchase on the drive train. Plaintiff is not the Auto Dealer, but falsely claims Defendant bought "goods" from Plaintiff. No assignment is alleged, but a blank assignment box is on a "contract" attached to the Claim. Rather than dismiss the Claim at the pre-trial conference on 31 July 2012 (57 days after the Claim was filed) the judge told Defendant to set a hearing date for her Motion to Dismiss and for Sanctions. The Hearing is set for 24 August 2012 at 2:15 PM in Room 1-B in Sebring, Florida. - UPDATE - At the Hearing on the motion (24 August 2012), Judge Ritenour denied in part re the Bond, but granted Kellie's motion re capacity, standing and "no cause of action." The Judge is going to prepare the order.

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Published by: robchaney on Aug 06, 2012
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10/24/2013

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IN THE COUNTY COURTIN AND FOR HIGHLANDS COUNTY, FLORIDA
RIVERS EDGE INVESTMENT CO.,CASE NO.
12 000 234 - SPS
a Foreign Profit Corporation notRegistered with the State of Florida,Plaintiff,v.KELLIE J. MOTIL,a Resident of Highlands County,Defendant. _____________________________/Tuesday, 31 July 2012
DEFENDANT’S MOTION to DISMISS and FOR SANCTIONS withDEMAND FOR JURY TRIAL
Comes now the Defendant, KELLIE J. MOTIL, (hereafter "Kellie") pursuant to FloridaRules of Civil Procedure, Rule 1.140 and Sm. Cl. R. 7.135 to move the Court to dismissPlaintiff's action and to issue sanctions against its attorney, based upon the grounds that:
A)
Plaintiff failed to file a valid non-resident bond under Florida Statutes 57.011 and 454.20;
B)
Plaintiff's "Statement of Claim" (the "Claim") fails to attach a cause of action or to identify the parties,
C)
fails to show Plaintiff's capacity to sue,
D)
fails to show standing to sue, and
E)
failsto state a cause of action.
F)
Plaintiff's attorney, Noam J. Cohen (Fla. Bar No. 0271240) and theLaw Offices of Noam J. Cohen, P.A., in filing this Claim have knowingly filed two documentsthat are fraudulent on their faces.
G)
Plaintiff's prayer for attorney's fees is negated by theattachments to the Claim. If the Claim is not dismissed,
Defendant demands trial by jury
.Defendant moves the Court, pursuant to Florida Small Claims Rule 7.020 (c), to order that this action proceed under any Florida Rules of Civil Procedure mentioned herein that arenot, already, mentioned in Fla. Sm. Cl. R. 7.020(a).
A. Cohen's Purported Bond Is Not Valid
1.The Claim was filed on
4 June 2012
--more than fifty (50) days ago.2.Plaintiff failed to file a nonresident bond within thirty (30) days after its Complaint wasfiled pursuant to Florida Statute 57.011. That deadline was
5 July 2012
.3.Plaintiff was served with a notice of its failure to file on
6 July 2012
.
 
4.Although the 57.011 statute permits a nonresident plaintiff to file the bond during the20-day notice period, Plaintiff has failed to file a valid non-resident bond. The statute does notsay that Plaintiff's attorney may deposit $100 with the Court in lieu of a bond signed by Plaintiff and guaranteed by a surety.5.Florida Statute
831.01
says, in pertinent part:.”Whoever falsely makes … a publicrecord, or a certificate, … or a … bond,, with intent to injure or defraud any person, shall beguilty of a felony of the third degree....”6.The purported bond filed by Plaintiff's attorney is not valid. The Florida Rules of CivilProcedure,
Form 1.960
shows the bond-form approved by the Florida Supreme Court. The Formcontains the words: “SIGNED AND SEALED.” The purported bond has no “SEAL” and it isnot “SIGNED” by the Plaintiff. The Form show's a place for the “Surety's name” and a line for the signature of the “Surety.” The purported bond has no surety's name and no signature for asurety.7.The only person who signed the purported bond is the Plaintiff's attorney. However,Florida Statute
454.20
says: “No attorney shall become surety on … any bond of a client in judicial proceedings. In agreement with this law, the Florida Rules of Judicial Administration
2.505(c)
, also, says: “No attorney … shall enter themselves or be taken as bail or surety in any proceeding in court.”8. Apparently, Plaintiff's attorney, Noam J. Cohen (Fla. Bar No. 0271240) prepared the purported bond, certified—by his signature—that he read the bond, published the bond by filingit with the Clerk of Courts as a public record, and thereby committed a fraud upon the court inthe process. The Florida Rules of Judicial Administration 2.515 (a) says, in pertinent part:“The signature of an attorney shall constitute a certificate by the attorneythat the attorney has read the pleading or other paper; [and] that ... there isgood ground to support it....”9."[A] dismissal under this statute should be with prejudice." See Trawick, Fla. Prac. andProc. § 1:11 (2010 ed.) at page 13.
B. The Vague Claim Fails to Attach a Cause of Action or to Identify the Parties
10.Florida Small Claims Rules
7.050(a)(1)
says: “If the claim is based on a writtendocument, a copy or the material part thereof shall be attached to the statement of claim.” Thissame statement appears as a “NOTE” at the top of the INSTRUCTION SHEET attached to theClaim. The word “shall” is mandatory.2
 
11.The Claim alleges a “written instrument, a copy of which is attached hereto.” However,the tiny copy of a “Retail Installment Contract and Security Agreement” attached to the Claimsays the “Seller” is “Kane's Auto Exchange,” not the Plaintiff.12.The Claim fails to mention any assignment, or other transfer, of the alleged debt/contractfrom the Seller to Plaintiff.13.Although the caption of the Claim names a Plaintiff and a Defendant, the Claim fails toidentify either the Plaintiff or the Defendant in the body of the Claim. “The naming of anindividual or entity in the caption is not sufficient basis to warrant inclusion in the action if the party is not mentioned in the body of the complaint.” Altamonte Hitch v. U-Haul, 498 So.2d1346 (5
th
DCA, 1986) at 1347.
C. The Claim Fails to Show Plaintiff's Capacity to Sue
14.Plaintiff does not make any statement as to its "capacity" to sue or be sued in its Claim.Florida Rules of Civil Procedure,
Rule 1.120 (a)
says:It is ...
necessary
to aver the
capacity
of a party to sue or be sued, ... to theextent required to show the
 jurisdiction
of the court.... [Emphasis added.]
D. The Claim Fails to Show Plaintiff's Standing to Sue
15.The Claim alleges a “written instrument, a copy of which is attached hereto.” However,the tiny copy of a “Retail Installment Contract and Security Agreement” attached to the Claimsays the “Seller” is “Kane's Auto Exchange,” not the Plaintiff.16.The Claim fails to mention any assignment, or other transfer, of the alleged debt/contractfrom the Seller to Plaintiff. In Florida, a plaintiff must plead and prove the ultimate facts thatgive rise to its cause of action against a defendant.17.Until Plaintiff has standing, the Court lacks jurisdiction to hear this case. See Fl. R. Civ.P., Rule 1.140(b). The United States Court of Appeals for the Third Circuit has explained, inGoode v. City of Philadelphia, 539 F.3d 311, 327 (3rd Cir. 2008), that:[O]nce the District Court determined that appellants did not have standing, itnecessarily determined that it did not have jurisdiction and thus it could notdecide the merits of the case. See Steel Co. v. Citizens for a Better Env’t, 523U.S. 83, 94, 118 S.Ct. 1003, 1012 (1998) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when itceases to exist, the only function remaining to the court is that of announcing thefact and dismissing the cause.”) (internal quotation marks omitted); PSA, LLC v.Gonzales, 461 F. Supp. 2d 351, 359 (E.D. Pa. 2006).3

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