IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUITOF FLORIDA, IN AND FOR _____________ COUNTYGREEN TREE SERVICING, LLC, CASE No. 05-2011-CA-0XXXXXPLAINTIFF,v.JOHN DOE, JANE DOE, et. al.,DEFENDANTS. ___________________________/
DEFENDANT JOHN DOE AND JANE DOE’SMOTION TO DISMISS
Comes now, Defendants, John Doe and Jane Doe (hereinafter, “defendants”) and pursuantto Rule 2.515 of the Florida Rules of Judicial Administration and Rule 1.140 of the Florida Rulesof Civil Procedure, hereby moves the Court to Order the case dismissed due to: lack of proper verification; lack of standing; lack of notice of breach and acceleration; lack of notice of assignment, sale and transfer of servicing; lack of notice of transfer of ownership of mortgageloan and failure to comply with 15 U.S.C. 1641(g)(1); and failure to attach required documentsto the complaint. As grounds therefore, Defendants offers the following:
ISTANDARD ON MOTION TO DISMISS
1. Florida Rules of Civil Procedure section 1.140(b) provides in part:How Presented. Every defense in law or fact to a claim for relief in a pleadingshall be asserted in the responsive pleading, if one is required, but the followingdefenses may be made by motion at the option of the pleader: (1) lack of
jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3)improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties.2. The function of a motion to dismiss a complaint is to raise as a question of law thesufficiency of the facts alleged to state a cause of action.
Connolly v. Sebco, Inc.
, 89 So. 2d 482(Fla. 1956). For the purpose of a motion to dismiss, the Court is required to accept as true allwell-pleaded allegations of the complaint.
Brown v. First Federal Savings and Loan
, 160 So.2d556 (Fla. 1st DCA 1964). However, the Court is not required to accept as true allegations thatare inconsistent with law.
Brown
, 160 So. 2d at 563. (“Semantics cannot be employed for the purpose of refuting facts clearly shown to exist or used to create a fictional relationship, one thatotherwise would have no existence in the law.”) The pleading must be construed against the pleader in determining whether the necessary allegations have been stated.
Matthews v. Matthews
, 122 So. 2d 571 (Fla. 2d DCA 1960).
IIBASIS FOR MOTION TO DISMISSA. LACK OF PROPER VERIFICATION
3. The standard for verification of a residential mortgage foreclosure complaint is at ahighest standard, requiring truth, whereas verification of a “document” may be made on thelesser standard requiring that it only be “true and correct to the best of my knowledge and belief.”4. The complaint in this action contains the following statement “Under penalty of perjury, Ideclare that I have read the foregoing Mortgage Foreclosure Complaint, and the facts alleged
therein are true and correct to the best of my knowledge and belief.” Verification on informationor belief is not permitted by law in foreclosure actions on residential real estate.
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5. On February 11, 2010 by the Florida Supreme Court, pursuant to In re: Amendments tothe Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 11, 2010) attached hereto anincorporated as Exhibit “A”, amended Fla. R. Civ. Pro. 1.110(b) to read[w]hen filing an action for foreclosure of a mortgage on residential real property
the complaint shall be verified
. When verification of a document is required,the document 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.
Bold emphasis added
.6. On December 9, 2010, the Supreme Court clarified its position in Case No. SC09-1579,“In re: Amendments to the Florida Rules of Civil Procedure-Form (Final Judgment of Foreclosure)” and stated:Along with the amendments to form 1.996(a), rule 1.110(b) was amendedto require verification of mortgage foreclosure complaints involvingresidential real property. One of the primary purposes of this amendmentwas to ensure that the allegations in the complaint are accurate. In light of recent reports of alleged document fraud and forgery in mortgage foreclosurecases, this new requirement is particularly important. (At pages 2 and 3)7. Here, the attempted verification of the complaint fails to meet the strict requirements of Fla. R. Civ. P. 1.110(b). The verification is qualified by the use of the provision: “to the best of my knowledge and belief.” This is the lower standard reserved for documents and not allowedon the Complaint itself.8. Here, the verification fails as the verifying individual is not employed by Federal National Mortgage Association (hereafter “FannieMae”) and therefore lacks capacity to verify
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Henry Trawick makes clear that “verification” means that the verifying party attests that thefacts alleged in the complaint are true. Trawicks Florida Practice and Procedure Sec. 6:14(Verification).
Beverette v. Graham
, 131 So. 826, 827 (Fla. 1931);
Burns v. Burns
, 174 So.2d432, 434 (Fla. 2d DCA 1965).
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