Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
3Activity
0 of .
Results for:
No results containing your search query
P. 1
08937 Mot Dismiss 3rd Amd Complaint

08937 Mot Dismiss 3rd Amd Complaint

Ratings: (0)|Views: 203|Likes:
Published by robchaney
Mortgage Foreclosure has Exhibits that Negate the Complaint. Plaintiff had No Right to Sue Prior to Filing Complaint. Note has No Endorsement to Plaintiff and Mortgage has No 'Grant' of Rights to Plaintiff.
Mortgage Foreclosure has Exhibits that Negate the Complaint. Plaintiff had No Right to Sue Prior to Filing Complaint. Note has No Endorsement to Plaintiff and Mortgage has No 'Grant' of Rights to Plaintiff.

More info:

Published by: robchaney on Jun 28, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

06/08/2014

pdf

text

original

 
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT,IN AND FOR HIGHLANDS COUNTY, FLORIDA
CHASE HOME FINANCE, LLC,CASE NO.
08 000 937 - GCS
Plaintiff, v.JEREMIAH T. AMMANN,
et al.
Defendants. _____________________________/
DEFENDANTS’ MOTION TO DISMISS PLAINTIFF'S UN-VERIFIED"THIRD AMENDED MORTGAGE FORECLOSURE COMPLAINT"
Co-Defendants, Jeremiah and Laura Ammann, move the Court to enter an Order dismissing Plaintiff’s un-verified fourth complaint entitled "Third Amended MortgageForeclosure Complaint" for its: 1) repeated failure to state a cause of action
1
; 2) failure tocomply with the Florida Rules of Civil Procedure, 3) failure to allege sufficient facts to give theCourt jurisdiction; and because 4) its exhibits negate the allegations of the complaint; and statethe following in support of dismissal with prejudice:1.Plaintiff has filed four (4) defective complaints:(1)the
Initial
Complaint with 2 counts was filed 23 July
2008
(the
 First One
);(2)the
First
Amended Complaint, 2 counts, filed 9 June
2009
(the
Second One
);(3)the proposed
Second
Amended Complaint, filed
16 June
 
2010
(the
Third One
) withits first-and-only motion-for-leave-to-amend had only 1 count; and(4)the
Third
Amended Complaint, filed
11 August 2010
(the
 Fourth One
), has 1 count.2.The
 First One
was dismissed on 21 May 2009, because it failed to state a cause of action.The attached exhibits were, as they are now, contrary to the allegations of the complaint and thecomplaint failed to show Plaintiff's standing to sue.
1Fla. R. Civ. Proc. (2010), Rule 1.110(b) and Rule 1.140(b)(1), (3), (6) and (7)
 
3.The
 Fourth One
should, now, be dismissed for the exact same reason, but with prejudicethis time, not only because Plaintiff has failed to state a cause of action after 3 years and 4attempts, but because amendment would not fix all the defects of the complaint as shown below.4.It would appear to be an abuse of discretion for the Court to allow a FIFTH complaint to be filed in this case. As the 4th District Court of Appeal said:Although there is no magical number of amendments which are allowed,dismissal of a complaint that is before the court on a third attempt at proper  pleading is generally not an abuse of discretion. [Emphasis added.]
2
5.The
Fourth One
fails to allege Plaintiff "owns" the "note and mortgage." The
FloridaSupreme Court
has provided the words for a "mortgage foreclosure" complaint which lists thefollowing mandatory allegation: "Plaintiff owns and holds the note and mortgage."
See
 paragraph 3.
Form 1.944
, Fla. R. Civ. Pro. and paragraph 4 of the
 Fourth One
.6.The
 Fourth One
alleges "Plaintiff's Mortgage" at paragraph 11 and "Plaintiff's mortgage"in the "WHEREFORE" paragraph. However, the alleged copies of the note and mortgage do not bear Plaintiff's name nor any endorsement from a previous holder-in-due-course.7.The alleged note attached to the
 Fourth One
bears
NO
endorsement at all. Said note evenappears to contradict the alleged original note filed in April 2010.8.The
Florida Supreme Court
has ruled:"Exhibits attached to a pleading become a part of the pleading for all purposes.See Fla. R. Civ. P. 1.130(b). If an exhibit facially negates the cause of actionasserted, the document attached as an exhibit controls and must be considered indetermining a motion to dismiss."
 Andre Fladell v. Palm Beach CountyCanvassing Board 
, 772 So.2d 1240 (Fla. 2000).Thus, the controlling exhibits contradict the allegations of the
 Fourth One
and dismissal is,therefore, proper as a matter of law. The alleged note attached to the
 Fourth One
bears
NO
endorsement from the original lender to Plaintiff. "[W]hen plaintiff files his complaint, he must
2Barrett v. City of Margate, 743 So.2d 1160 (1999) 4th DCA at 1162.
2
 
necessarily allege he is the owner and holder of the note and mortgage in question. 22 Fla.Jur.,
Mortgages
§ 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.
"
3
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
 Fourth One
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."
4
12.The
 Fourth One
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."
5
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).
3

Activity (3)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads
Dana Cosby liked this

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->