necessarily allege he is the owner and holder of the note and mortgage in question. 22 Fla.Jur.,
§ 314 (1958)."
Your Construction Center, Inc. v. Gordon R. Gross
, 316 So.2d 596(1975) (4th Dist.) at p. 597.9.At the Hearing of 8 April 2011, Mr. Damon Ellis made this curious and importantstatement about Plaintiff's complaint not seeking a personal money judgment:"
We don't have a separate count for a suit on the note.
10.This must be why the complaint fails to allege that Plaintiff owns the alleged note, because they are not suing on the note. Florida law is well established that the mortgage followsthe note. So then, if, as Mr. Ellis states, Plaintiff is not suing "on the note," then he admitsPlaintiff has no cause of action. A suit upon a mortgage, alone, is a nullity.11.The purported "Mortgage" attached to the
contains NO express "grant" or "transfer" of property rights. THEREFORE, it is really not a mortgage. The Florida statute of frauds demands that contracts, affecting people's rights in real estate property, be in writing. TheRules demand that "All bonds, notes, ... contracts, accounts, or documents upon which actionmay be brought ... or a copy of the portions thereof
material to the pleadings
, shall beincorporated in or attached to the pleading."
has several defects, and some them can not be corrected by amendmenteven if Plaintiff attaches the purported "Assignment of Mortgage [and Note]" because it was:(1)
executed and assigned AFTER the action was filed
, which means Plaintiff had no standing-to-sue on the filing date, and "plaintiff's lack of standing atthe inception of the case is not a defect that may be cured by the acquisitionof standing after the case is filed."
An amendment will not fix this.(2)
executed and assigned AFTER the alleged note was overdue
which meansPlaintiff is not a holder-in-due-course, is not a "creditor" and it has no
3Transcript of Hearing 8 April 2011, at page 53, lines 4-5. [Emphasis added.]4Rule 1.130(a), Fla. R. Civ. Pro.5Progressive Exp. Ins. v. McGrath Comm. Chiropractic, 913 So.2d 1281 at 1285 (Fla. 2nd DCA 2005).