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FL Motion to Dismiss Foreclosure Complaint - Failure to post Cost Bond

FL Motion to Dismiss Foreclosure Complaint - Failure to post Cost Bond

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Published by winstons2311
.2.That the Plaintiff is a foreign entity as set forth in its own case style based in astate other than Florida.3.That as such, Plaintiff is required to post a bond pursuant to FS 57.011 as acondition of bringing any action in the courts of this state.4.That Plaintiff failed to plead that it posted the requisite bond.5.That therefore, this action is subject to dismissal by this court.6.That this requirement is statutory and cannot be waived by the Plaintiff.7.That in paragraph 9 of the Plaintiff’s complaint they allege that all conditions precedent to the filing of this action have been met by plaintiff.
.2.That the Plaintiff is a foreign entity as set forth in its own case style based in astate other than Florida.3.That as such, Plaintiff is required to post a bond pursuant to FS 57.011 as acondition of bringing any action in the courts of this state.4.That Plaintiff failed to plead that it posted the requisite bond.5.That therefore, this action is subject to dismissal by this court.6.That this requirement is statutory and cannot be waived by the Plaintiff.7.That in paragraph 9 of the Plaintiff’s complaint they allege that all conditions precedent to the filing of this action have been met by plaintiff.

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Published by: winstons2311 on Apr 23, 2012
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08/04/2013

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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUITIN AND FOR PINELLAS COUNTY, STATE OF FLORIDACIVIL DIVISIONCASE NUMBER: 08-019585-CI-19
THE BANK OF NEW YORK MELLON,
f/k/a The Bank of New York as Successor in Interest to JP Morgan Chase Bank, N.A.as Trustee for CWABS 2004-SPlaintiff,Vs.
JOHN R. DESILVA
, a/k/a John R. DaSilva;Et al,Defendants. _____________________________________/
MOTION TO DISMISS
COMES NOW, the Defendant, JOHN R. DESILVA, by and through hisundersigned attorney, and pursuant to FLA.R.Civ.P. 1.420 et seq., who moves thisHonorable Court for an Order dismissing this complaint, or for a more definite statementor an abatement of the proceedings, and for an award of attorneys fees and costs for thereasons which follows:1.That the complaint was filed with the named Plaintiff THE BANK OF NEWYORK MELLON f/k/a The Bank of New York as Successor in Interest to JPMorgan Chase Bank, N.A. as Trustee for CWABS 2004-S.2.That the Plaintiff is a foreign entity as set forth in its own case style based in astate other than Florida.3.That as such, Plaintiff is required to post a bond pursuant to FS 57.011 as acondition of bringing any action in the courts of this state.4.That Plaintiff failed to plead that it posted the requisite bond.5.That therefore, this action is subject to dismissal by this court.6.That this requirement is statutory and cannot be waived by the Plaintiff.7.That in paragraph 9 of the Plaintiff’s complaint they allege that all conditions precedent to the filing of this action have been met by plaintiff.8.That the plaintiffs have attached exhibits C, D, E & F to the motion for Summary Judgment and have acknowledged that these documents areagreements that have modified the original terms of the original note.
 
9. That pursuant to the “Miscellaneous Provisions” article of the amendment tothe original note, the parties have contracted and agreed that this agreementshall be governed by California Law.10.That California Civil Code Section 2924, (1) states that before a lawsuit for Foreclosure is filed, The trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in the office of the recorder of eachcounty wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice of default.11.That in subsection (2) the code goes on to state that: Not less than threemonths shall elapse from the filing of the notice of default (before suit may befiled).12.That the Plaintiff’s failure to comply with the provisions of California CivilCode Section 2924 is a complete and absolute bar to the issuance of asummons.13.That as such, service on the plaintiff is improper and should be immediatelyquashed.14.That there is no relation back doctrine available to repair this defect.15.That the Plaintiff’s complaint should immediately be stricken, the summonsquashed and the Plaintiff should be required to refile and comply with theapplicable statute provisions.16.That this complaint was filed on or about December 23, 2008 and amended onJune 30, 2009.17.That the plaintiff in this action is alleged to be THE BANK OF NEW YORK MELLON, f/k/a The Bank of New York as successor in interest to JP MorganChase Bank, N.A., as Trustee for CWABS 2004-S.18.That a mortgage is attached to the complaint in the “Exhibit B” which stateson page 1 of said document that “MERS is the mortgagee under this SecurityAgreement”.19.That on December 23, 2008 a copy of a document claiming to be a HomeEquity Credit Line Agreement and Disclosure statement was filed with the
 
original complaint showing the agreement was entered into between theDefendant and Countrywide Home Loans, Inc.20.That at the time of filing of this document there were no endorsementsattached to this document copy.21.That when the amended complaint was filed on June 30, 2009, again a copy of this document was attached, again without any endorsements attached.22.That in paragraph 4 of the Plaintiffs complaint they state that “Beneficialinterest in this loan was at all times retained by Countrywide”.23.That the complaint alleges in paragraph 5 that the Plaintiff holds the note andMortgage and is duly authorized to bring this action.24.That the Plaintiff has further affirmed under oath that it has held the note sinceDecember 23, 2004.25.That at no time does the complaint or any attached affidavits or documentsallege that the Plaintiff “Owns” the note or is a “Holder” of the note asdefined by the UCC.26.That pursuant to UCC 3-203 (a) Aninstrumentis transferred when it isdelivered by a person other than its issuer for the purpose of giving to the  person receiving delivery the right to enforce the instrument.27.That Clearly based on the actions of Countrywide Home Loans, Inc.subsequent to December 23, 2004, Countrywide Home Loans, Inc., retainedthe right to enforce and modify the terms of the instrument.28.That there are no other documents that give Plaintiff authority to bring thisaction either attached to the complaint or filed at any later date.29.That there is no allegation in the complaint that the Mortgage or the“Agreement” was ever transferred to the Plaintiff in any capacity other than arepository for the agreement.30.That Plaintiff is required to establish through admissible evidence that it hadstanding to foreclose. Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1
st
DCA 1998); BAC Funding Consortium, Inc. ISAOA/ATIMA v. JEAN-JACQUES, 28 So. 3d 936 (Fla. 2d DCA 2010).

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