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047111291192

047111291192

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Published by: Piggybankblogger on Oct 31, 2012
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06/01/2013

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{25244830;1}
UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDATAMPA DIVISIONCASE NO.: 8:12-cv-02309-JDW-TBMTHE FIDELITY LAND TRUST COMPANY,LLC, AS TRUSTEE FOR FLORIDA LANDTRUST NO. 00160 DATED JANUARY 20, 2012
,Plaintiff,v.
CENTEX HOME EQUITY COMPANY, LLC,N/K/A NATIONSTAR MORTGAGE LLC,
Defendant.
/NATIONSTAR'S MOTION TO DISMISS
1
I. I
NTRODUCTION
The Fidelity Land Trust
Company
, LLC's (
Fidelity Land
) action is merely asubterfuge improperly attempting to absolve borrower Chad E. McIntyre from hismortgage loan obligations. This case is an example of a disturbing new trend in Florida.In an attempt to avoid foreclosure, borrowers deed their properties to a land trust (of which they are the beneficiaries) for the purpose of bringing suit to quiet title andinvalidate their mortgages.
2
1
"
Nationstar
" refers to Centex Home Equity Company, LLC, n/k/a Nationstar Mortgage LLC.
2
The Florida Attorney General filed a lawsuit against Fidelity Land on September 25, 2012, andobtained a temporary injunction one day later to halt this foreclosure-rescue scheme as an unfair and deceptive trade practice. The AG complaint and temporary injunctions, attached as
E
XHIBITS
A
and
B
, respectively, discuss additional legal authority in opposition to Fidelity
Case 8:12-cv-02309-JDW-TBM Document 4 Filed 10/11/12 Page 1 of 13 PageID 91
 
{25244830;1}
2The premise of this scam is the legally baseless notion that an unrecorded transfer of the mortgage renders the mortgage unenforceable against subsequent purchasers, suchas the new trust owner. But, Fidelity Land admits it took title to the property long aftethe mortgage was duly recorded in favor of Nationstar, and Fidelity Land alleges nolegally relevant facts to support that the mortgage is void. Having taken title with noticeof the recorded mortgage, Fidelity Land cannot quiet title to the property.Fidelity Land asserts no cognizable legal theory in support of its frivolous claimsand should be dismissed with prejudice pursuant to F
ED
. R. C
IV
. P. 12(b)(6), because noamendment could fix these unsupportable causes of action.
II. B
ACKGROUND
Fidelity Land's supposed predecessor-in-interest, Chad E. McIntyre, executed amortgage in favor of Nationstar on December 13, 2005. [First Amended Complaint ¶ 3& E
X
. A.] The mortgage secures a $197,863.00 promissory note originally payable to Nationstar, encumbering the subject property located at 4619 Tailfeather Court, Land OLakes, Florida 34639. [
 Id.
] The mortgage was recorded on December 23, 2005 in Book 6763, Page 768 of the Public Records of Pasco County, Florida. [
 Id.
]Fidelity Land purportedly took title to the property more than six years later by a"Warranty Deed to Trustee" dated January 20, 2012 and recorded on February 9, 2012 inBook 8655, Page 2159 of the Public Records. [
 Id.
¶¶ 5-6 & E
X
. B.]Fidelity Land commenced this action in Pasco County, Florida Circuit Court onMarch 5, 2012, originally suing Nationstar and additional defendants Mortgage
Land's claims, but consideration of the factual allegations and exhibits is not necessary for  purposes of this motion.
Case 8:12-cv-02309-JDW-TBM Document 4 Filed 10/11/12 Page 2 of 13 PageID 92
 
{25244830;1}
3Electronic Registration Systems, Inc. and HSBC Mortgage Corporation (USA) to cancela second mortgage. [Doc. 1, C
OMP
. E
X
. A.] Fidelity Land voluntarily dismissed theadditional defendants on September 6, 2012, and filed a verified first amended complainton September 6, 2012, dropping its challenge to the second mortgage. [
 Id.
]Fidelity Land served Nationstar with the amended complaint and summons onSeptember 20, 2012. Nationstar timely removed this action to this Court based ondiversity jurisdiction on October 10, 2012. [Doc. 1.]
III. M
EMORANDUM OF
L
AW
A. Legal Standard.
"To survive a motion to dismiss, a complaint must contain sufficient factualmatter, accepted as true, to state a claim to relief that is plausible on its face."
Lord  Abbett Mun. Income Fund, Inc. v. Tyson
, 671 F.3d 1203, 1207 (11th Cir. 2012) (quoting
 Ashcroft v. Iqbal 
, 556 U.S. 662, 678 (2009)). "Plausibility is the key, as the well-pledallegations must nudge the claim across the line from conceivable to plausible. And tonudge the claim across the line, the complaint must contain more than labels andconclusions, and a formulaic recitation of the elements of a cause of action will not do . . .Threadbare recitals of the elements of a cause of action, supported by mere conclusorystatements, do not suffice."
Jacobs v. Tempur-Pedic Int'l Inc.
, 626 F.3d 1327, 1332 (11thCir. 2010) (internal citations and quotation marks omitted).On a motion to dismiss, "courts must consider the complaint in its entirety, aswell as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions todismiss, in particular, documents incorporated into the complaint by reference, and
Case 8:12-cv-02309-JDW-TBM Document 4 Filed 10/11/12 Page 3 of 13 PageID 93

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