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
9Activity
0 of .
Results for:
No results containing your search query
P. 1
MOTION TO STRIKE/DISMISS PLAINTIFF'S COMPLAINT - IMPROPER VERIFICATION

MOTION TO STRIKE/DISMISS PLAINTIFF'S COMPLAINT - IMPROPER VERIFICATION

Ratings:

5.0

(1)
|Views: 552|Likes:
Published by winstons2311
MOTION TO STRIKE/DISMISS PLAINTIFF’S COMPLAINT; DISMISS ACTION FOR IMPROPER
VERIFICATION OF PLAINTIFF’S MORTGAGE FORECLOSURE COMPLAINT
MOTION TO STRIKE/DISMISS PLAINTIFF’S COMPLAINT; DISMISS ACTION FOR IMPROPER
VERIFICATION OF PLAINTIFF’S MORTGAGE FORECLOSURE COMPLAINT

More info:

Published by: winstons2311 on Apr 21, 2012
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

08/05/2013

pdf

text

original

 
IN THE CIRCUIT COURT, FOURTHJUDICIAL CIRCUIT, IN AND FORDUVAL COUNTY, FLORIDA.CASE NO.: 16-2010-CA-11393-XXXXDIVISION: FC-GHABITAT FOR HUMANITY OF JACKSONVILLE, INC., Plaintiff,vs.CURRY S. BROWN andLINDA F. BROWN,et.al., Defendants. _____________________________/
DEFENDANTS CURRY BROWN AND LINDA BROWN’S MOTION TOSTRIKE/DISMISS PLAINTIFF’S COMPLAINT; DISMISS ACTION FOR IMPROPERVERIFICATION OF PLAINTIFF’S MORTGAGE FORECLOSURE COMPLAINT
COME NOW, the Defendants, and respectfully move this Court toSTRIKE/DISMISS the plaintiff’s complaint; dismiss this action and for all other appropriate relief pursuant to Rules 1.110(b), 1.140(f) and 1.420(b) of the FloridaRules of Civil Procedure, and state:1. THE PLAINTIFF’S COMPLAINT IS NOT PROPERLY VERIFIED
a.
Fla. R. Civ. Pro. 1.420(b) provides, in pertinent part, that “[a]ny party maymove for dismissal of an action or of any claim against that party for failureof an adverse party to comply with these rules or any order of court.”
 b.
Pursuant to the grant of constitutional authority given to the FloridaSupreme Court under Article V, Section 2(a) of the Florida Constitution,the Florida Supreme Court amended Fla. R. Civ. Pro. 1.110(b) effectiveFebruary 11, 2010 as follows:[w]hen filing an action for foreclosure of a mortgage on residential real propertythe complaint shall be verified. When verification of a document is required, thedocument shall include an oath, affirmation, or the following statement: Under penalty of perjury, I declare that I have read the foregoing, and the facts allegedtherein are true and correct to the best of my knowledge and belief.2. The Supreme Court determined that [t]he primary purposes of thisamendment are: (1) to provide incentive for the plaintiff to appropriatelyinvestigate and verify its ownership of the note or right to enforce the note andensure that the allegations in the complaint are accurate; (2) to conserve judicial
 
resources that are currently being wasted on inappropriately pleaded “lost note”counts and inconsistent allegations; (3) to prevent the wasting of judicialresources and harm to defendants resulting from suits brought by plaintiffs notentitled to enforce the note; and (4) to give trial courts greater authority tosanction plaintiffs who make false allegations. In re: Amendments to the FloridaRules of Civil Procedure, No. SC09-1579, (Feb. 11, 2010).3. Fla. Stat. §92.525 provides that(1) When it is authorized or required by law, by rule of an administrative agency,or by rule or order of court that a document be verified by a person, theverification may be accomplished in the following manner:(a) Under oath or affirmation taken or administered before an officer authorizedunder s. 92.50 to administer oaths; or (b) By the signing of the written declaration prescribed in subsection (2).(2) A written declaration means the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the factsstated in it are true,” followed by the signature of the person making thedeclaration, except when a verification on information or belief is permitted bylaw, in which case the words “to the best of my knowledge and belief” may beadded. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of theperson making the declaration.See also Muss v. Lennar Florida Partners I, L.P., 673 So. 2d 84 (Fla. 4th DCA1996). Please see Exhibit A-1.4. “Verification’ means that the verifying party attests that the factsalleged in the complaint are true. Trawick's Florida Practice and Procedure Sec.6:14 (Verification). Beverette v. Graham, 131 So. 826, 827 (Fla. 1931); Burns v.Burns, 174 So.2d 432, 434 (Fla. 2d DCA 1965). If verification is required by ruleor statute then it may not be based on “information or belief.” Trawick FloridaPractice and Procedure Sec. 6:14 (Verification). Moreover, it is clear that failureto verify may be attacked via a Motion to Strike. Id.5. In its complaint, Plaintiff failed to properly verify the complaint becausethe verification is not a part of the complaint and because it is signed by a personwho is not identified as the plaintiff and in fact is an agent or employee of Everhome Mortgage Company as evidenced by the power of attorney filed for record; attached hereto and incorporated herein of which defendant requests thecourt take judicial notice of as required and allowed by Florida law and rules of procedure and especially in light of the reasons the Florida Supreme Court
2

Activity (9)

You've already reviewed this. Edit your review.
1 hundred reads
1 thousand reads
dbush2778 liked this
dbush2778 liked this
saturday3 liked this
James Kim liked this
Laura Krivickas liked this
SLAVEFATHER 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)//-->