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FL Motion to Dismiss Complaint Motion to Vacate Clerks Default and in the Alternative Motion for Summary Judgment

FL Motion to Dismiss Complaint Motion to Vacate Clerks Default and in the Alternative Motion for Summary Judgment

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Published by winstons2311
Motion to Dismiss Complaint Motion to Vacate Clerks Default and in the Alternative Motion for Summary Judgment - Matt Weidner Esq.
Motion to Dismiss Complaint Motion to Vacate Clerks Default and in the Alternative Motion for Summary Judgment - Matt Weidner Esq.

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Published by: winstons2311 on May 08, 2011
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12/06/2013

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 I
CE
L
EGAL
,
 
P.A.1975
 
S
ANSBURYS
W
AY
,
 
S
UITE
104,
 
W
EST
P
ALM
B
EACH
,
 
FL
 
33411
 
 
T
ELEPHONE
(561)
 
729-0530
 
 
F
ACSIMILE
(866)
 
507-9888
 
IN THE CIRCUIT COURT FOR THE 15TH JUDICIAL CIRCUIT,IN AND FOR PALM BEACH COUNTY, FLORIDA
CHASE HOME FINANCE LLC,Plaintiff,vs.GENERAL JURISDICTIONDIVISIONCASE NO.50 2008 CA 016857XXXX MBDivision: AWJUDITH KOREN; THE UNKNOWNSPOUSE OF JUDITH KOREN ANY ANDALL UNKNOWN PARTIES CLAIMING BY,THROUGH, UNDER, AND AGAINST THEHEREIN NAMED INDIVIDUALDEFENDANT(S) WHO ARE NOT KNOWNTO BE DEAD OR ALIVE, WHETHER SAIDUNKNOWN PARTIES MAY CLAIM ANINTEREST AS SPOUSES, HEIRS,DEVISEES, GRANTEES, OR OTHERCLAIMANTS; THE EDGE CONDOMINIUMNO. ONE ASSOCIATION, INC.; TENANT#1, TENANT #2, TENANT #3, and TENANT#4 the names being fictitious to account forparties in possession,Defendants.___________________________________/ Defendant, JUDITH KOREN and GIL KOREN, move to vacate the Clerks Default andmove to dismiss the complaint of Plaintiff, CHASE HOME FINANCE LLC, on the grounds thatit fails to state a cause of action and fails to allege sufficient facts to establish that it is the realparty in interest. To the extent that this motion requires evidence outside the four corners of theComplaint, Defendants move, in the alternative, for summary judgment on the stated grounds.Defendants rely on the Court’s power of judicial notice as indicated below. In support of thesemotions, Defendants state as follows:
DEFENDANT JUDITHKOREN’S MOTION TODISMISS COMPLAINT,MOTION TO VACATECLERK’S DEFAULT AND INTHE ALTERNATIVE MOTIONFOR SUMMARY JUDGMENT
 
CASE NO. 50 2008 CA 016857XXXX MB2
I
CE
L
EGAL
,
 
P.A.1975
 
S
ANSBURYS
W
AY
,
 
S
UITE
104,
 
W
EST
P
ALM
B
EACH
,
 
FL
 
33411
 
 
T
ELEPHONE
(561)
 
729-0530
 
 
F
ACSIMILE
(866)
 
507-9888
 
Motion To Vacate Clerk’s DefaultI.
 
Entry of Clerk’s Default Results in Admission of Only Well-Pled Allegations
Plaintiff filed a motion for default to be entered by the Clerk against Defendants,JUDITH KOREN and Gill Koren, on September 8, 2008. The Clerk subsequently entered adefault against Defendants on October 6, 2008. A default “admits every cause of action that issufficiently well-pled to properly invoke the jurisdiction of the court,”
Szucs v. Qualico Development, Inc.
, 893 So.2d 708 (Fla. 2nd DCA 2005),
but see
 
 Bowman v. Kingsland  Development, Inc.
, 432 So.2d 660, 662-63 (Fla. 5th DCA 1983). Here as addressed below,Plaintiff’s allegations and attachments fail to properly invoke the jurisdiction of the Court.Specifically, Plaintiff has failed to state a cause of action and fails to sufficiently allege they arethe real party in interest.In
 Becerra v. Equity Imports, Inc.
, 551 So.2d 486, 488 (Fla. 3rd DCA 1989), the courtstated:The power of the court to grant relief from a judgment entered on default has beenaccurately summed up as follows:A default admits liability as claimed in the pleading by the partyseeking affirmative relief against the party in default. It operates asan admission of the truth of the well pleaded allegations of thepleading, except those concerning damages. It does not admit factsnot pleaded, not properly pleaded or conclusions of law. Fairinferences will be made from the pleadings, but forced inferenceswill not. The party seeking affirmative relief may not be grantedrelief that is not supported by the pleadings or by substantive lawapplicable to the pleadings. A party in default may rely on theselimitations.H. Trawick,
Trawick's Florida Practice and Procedure
§ 25-4 at 348 (1988 ed.)(footnotes omitted).
See also North Am. Accident Ins. Co. v. Moreland,
60 Fla.153, 53 So. 635 (1910) (conclusions of law, facts not well pleaded, and forcedinferences are not admitted by a default judgment); 
504 So.2d 1374 (Fla. 4th DCA 1987)(party in default admits only thewell-pleaded facts and acquiesces only in the relief sought by the pleading);
 
CASE NO. 50 2008 CA 016857XXXX MB3
I
CE
L
EGAL
,
 
P.A.1975
 
S
ANSBURYS
W
AY
,
 
S
UITE
104,
 
W
EST
P
ALM
B
EACH
,
 
FL
 
33411
 
 
T
ELEPHONE
(561)
 
729-0530
 
 
F
ACSIMILE
(866)
 
507-9888
 
227 So.2d 746 (Fla. 2d DCA 1969)(defendant who suffersdefault admits only well-pleaded facts and acquiesces only in the relief prayedfor);
283 S.C. 251, 321 S.E.2d 194 (1984)(default judgment did not preclude defendant from challenging sufficiency of thecomplaint as a basis for the judgment).
See generally
§ 200at 356 (1947)(judgment by default operates as a waiver of any mere formal errorsin plaintiff's pleading but does not cure a totally defective complaint or waiveerrors which go to the foundation of plaintiff's cause of action).The Court went on to state:That where a default judgment should be set aside where the complaint fails tostate a cause of action, courts find it unnecessary to decide whether the defendantotherwise set forth good grounds for failing to respond to the complaint. Citing to
227 Ark. 648, 300 S.W.2d 270 (1957).This court, likewise,has held that a motion to set aside a default judgment requires no allegations orshowing of excusable neglect where the basis for the motion is that the allegationsin the complaint do not entitle the plaintiff to relief. 
 
Id at 489.Given the fact that Plaintiff’s attachments negate the allegations of the complaintregarding ownership of the note and mortgage, as discussed below in the Defendants’ motion todismiss the complaint, the clerk’s default should be vacated.
II.
 
An Amended Complaint Supersedes the Initial Complaint and AffordsDefendant An Opportunity to Respond to the Amended ComplaintBefore Default Can properly be Entered.
If the Court dismisses the Complaint and grants plaintiff leave to amend the default should bevacated as a legal nullity. An amended complaint supersedes the initial complaint and thereforeDefendant would be required to file a responsive pleading within 10 days or be subject to anentry of default again. In
Quintero-Chadid Corp. v. Gersten
, 582 So. 2d 685, 688 (Fla. 3rd DCA1991) the Court ruled:Where the amendment occurs prior to serving a responsive pleading there is nodistinction between amendments made before or after the original time foranswering the complaint passes. If an amended complaint is filed a party shallhave an additional twenty days to respond. Thus, a party could not be defaulteduntil twenty days from service of the amended complaint, even if it is filed shortlybefore the answer to the initial complaint would have been due.
 Isle of Sandalfoot 

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