vevs mo IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-3, Plaintiff, v. CASE NO. 05-2009-CA-011937-xxxx-xx LARRY CARTER, et al., Defendants. / DEFENDANT CITY OF PALM BAY’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT, WITH INCORPORATED MEMORANDUM OF LAW, Defendant, CITY OF PALM BAY (hereinafter “Defendant CITY"), by and through the undersigned attomey of record, and pursuant to Rule 1.140(6)(6) of the Florida Rules of Civil Procedure, hereby moves to dismiss the Complaint filed in the above-styled matter based upon Plaintiff's failure to state a cause of action upon which itis entitled to relief. In the altemative, Defendant CITY moves, pursuant to Rule 1.140(e) of the Florida Rules of Civil Procedure, for a more definite statement of Plaintiff's alleged interest in the real property, Ripe Binis foreclosure action. In support of these Motions, Defendant CITY states as ong = FACTUAL AND PROCEDURAL HISTORY sb 1. Onor about January 6, 2009, Plaintiff, HSBC BANK USA, PRS apse FOR THE REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSETHACKED cg me. 17 Logg CERTIFICATES, SERIES 2007-3 (hereinafter “Plaintiff BANK”), filed a Complaint in the instant case asserting two causes of action: (1) Count I ~ Mortgage Foreclosure and (2) Count II - Reestablishment of Note. 2. Attached to the Complaint as an Exhibit was a copy of the Mortgage, which was made a part of the Complaint by reference. See Complaint at §5. _ — ‘Case # 05-2009-CA-011937-XXXX-XX iui | 013699896vevd mo 3. The Summons and Complaint were served upon Defendant CITY on February 4, 2009, requiring a response on or before February 17, 2009. 4, In the Mortgage, the mortgagee is listed as Mortgage Electronic Registration Systems, Inc. and the Lender sted as Delta Funding Corporation. 5. Plaintiff BANK is neither the mortgagee nor the lender in the Mortgage attached to the Complaint. 6. The only reference to Plaintiff BANK in either the Complaint or the attached Exhibits is the conclusory statement that “Plaintiff is now the owner and holder of the note and mortgage by virtue of an assignment.” See Complaint at § 3. 7. Plaintiff BANK has failed to attach an Assignment of Mortgage to the Complaint or provide any explanation of if, how and when the Mortgage was transferred or assigned to it. 8. This Court is being asked to accept, on faith alone, that Plaintiff BANK has some legal interest in this real property 9. With there being no proof that Plaintiff BANK has any legal interest in the real property which is the subject of the instant litigation, Defendant CITY hereby moves to dismiss this lawsuit based upon Plaintiff's lack of standing; alternatively, Defendant CITY seeks a more definite statement as to Plaintiff's alleged ownership interest. MEMORANDUM OF LAW 1 STANDARD OF REVIEW “tis axiomatic that in ruling upon a motion to dismiss a complaint the issue before the court is whether the complaint states a valid cause of action.” Temples v. Florida Industrial Constr. Co., 310 So. 2d 326, 327 (Fla. 2d DCA 1975). “A motion to dismiss, filed pursuant to Florida Rule of Civil Procedure 1.140(b)(6), tests the legal sufficiency of a complaint to state a cause of action and is not intended to determine issues of ultimate fact. Therefore, in ruling on a motion to dismiss a complaint for failure to state cause of action, the trial court must confine itself strictly to the allegations within the four corners of the complaint.” McWhirter, Reeves, Page 2 of 7vev3 mo. McGlothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So. 2d 214, 215 (Fla. 2d DCA 1998) citations omitted). I, PLAINTIFF HAS NOT DEMONSTRATED ANY LEGAL INTEREST IN THE PROPERTY AND HAS NO STANDING TO INSTITUTE THIS LITIGATION The Complaint must be issed, for Plaintiff BANK has neither shown any legal interest in the matter being litigated nor any entitlement to foreclose upon Defendants Larry Carter and Ina M. Brinson, As such, Plaintiff BANK has no standing in this matter and cannot proceed in this litigation, “The determination of standing to sue concems a court's exercise of jurisdiction to hear and decide the cause pled by a particular party. Generally, one with a legally protectible right or interest at stake in an otherwise justiciable controversy is a proper party to obtai judicial resolution of that controversy. The party with the right or interest at stake generally should also be a ‘real party in interest,” that is, ‘the person in whom rests, by substantive law, the claim sought to be enforced.” Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So. 2d 1350, 1352 (Fla, 1993) (quoting Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1183 (Fla. 34 DCA)) (citations omitted). “The party must allege that he has suffered or will suffer a special injury. Thus, the court must determine whether the plaintiff has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation.” Wexler v. Lepore, 878 So. 2d 1276, 1280 (Fla. 4th DCA 2004) (citations omitted). “To establish standing it must be shown that the party suffered injury in fact (economic or otherwise) for which relief is likely to be redressed and, in non-constitutional situations, that the interest sought to be protected falls within a statutory or constitutional guarantee (i.e., the zone of interest...). The injury must be distinct and palpable. It may not be abstract, conjectural or hypothetical.” Peregood v. Cosmides, 663 So. 2d 665, 668 (Fla. Sth DCA 1995) (citations omitted).' * Proof of interest is clearly required at the onset of litigation. Moreover, during the pendency of litigation, if interest transfers, evidence of the transfer must be produced to the Court for the Court's determination of whether the new party has a real interest in the matter. “In case of any transfer of interest, the action may be continued by or Page 3 of 7vevS awn, Without some proffer of evidence that Plaintiff BANK has a legally protectable right or interest in this real property, i.e., standing, this Court must dismiss the Complaint as a matter of law for failure to state a cause of action upon which relief can be granted. Plaintiff BANK is not ‘ed in the Mortgage Documents provided to the Court. Moreover, no allegation, other than a conclusory statement of ownership, was set forth in the Complaint to show that Plaintiff BANK has any legal interest in this matter. Lastly, Plaintiff BANK has inexcusably failed to attach an Assignment of Mortgage to the Complaint. Without any proof of Plaintiff BANK’s interest, this, Court is unable to grant the relief which Plaintiff BANK purports to seek, and this matter must be dismissed pursuant to Rule 1.140(b)(6). In a case with facts substantially similar to the instant case, Washington v, Independent Realty Co., 99 So. 2d 613 (Fla. 1958), the Florida Supreme Court held that the trial court erred when it failed to dismiss the Complaint as a matter of law for failure to state a cause of action upon which relief can be granted: There is nothing in this record to establish such fact, such as an assignment or any transfer of said obligation to Independent Realty Company sufficient to protect Fred and Mary Washington in the event they were later sued by Wayco on the same cause of action. For this reason, it is obvious that Independent Realty Company has no standing to maintain this suit for declaratory decree against the Washingtons. It simply has no cause of action nor any legal claim against the defendants. For this reason, the motion to dismiss the complaint should have been sustained. Id, at 615 (emphasis added). This Court must follow the precedent set forth in Washington and dismiss the instant Complaint. I, IF THE INSTANT MOTION TO DISMISS IS DENIED, THE CITY ASKS THAT THE COURT REQUIRE THE PLAINTIFF TO FILE A MORE DEFINITE STATEMENT OF ITS INTEREST IN THIS LAWSUIT. It is Defendant CITY'S position that Plaintiff BANK has not proffered any evidence demonstrating its legal interest in the subject property, and the Complaint must be dismissed as a ‘against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.” Fla. R. Civ. P. 1.260(c) Page 4 of 7coaeaaes matter of law for failure to state a cause of action. Nonetheless, should the Court find that Plaintiff BANK’s conclusory statement of ownership is minimally sufficient, Defendant CITY moves this Court for an Order requiring the Plaintiff BANK file a more definite statement clarifying and supporting its ownership interest in the real property at issue. See Augustine v. Southern Bell Tel, & Tel. Co., 91 So. 2d 320, 323 (Fla. 1956) (“If the claims for damages are inadequate or indefinite and itis the desire of the defendant to have a more specific allegation, he can obtain the desired relief by a motion for a more definite statement.”).? “Where a complaint states, in substance, a cause of action by way of allegations of conclusions...but fails to do so by short and plain statements of the ultimate facts, the n for a more definite statement under Florida Rule of complaint...may be subject to...a m Civil Procedure 1.140(e).” Feller v. Eau Gallie Yacht Basin, Inc., 397 So. 2d 1155, 1157 (Fla. Sth DCA 1981). Rule 1.140(e), entitled “Motion for More Definite Statement,” reads as follows: If a pleading to which a responsive pleading is permitted is, so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. Should this Court choose not to dismiss this Complaint as legally and factually insufficient, Defendant CITY is entitled, at minimum, to a more definite statement. Without such statement, Defendant CITY cannot properly respond to Plaintiff BANK’s Complaint, for Defendant CITY’s position in defending the instant lawsuit depends entirely upon the date Plaintiff BANK acquired its interest in the subject property, i.e., whether Plaintiff BANK’s interest arose prior to or after the recording of Defendant CITY’s lien. ? iris necessary, pursuant to the Augustine cas, that Plaintiff allege atleast a minimal claim to the relief sought. It is the position of Defendant CITY that Plaintiff BANK has not made such a “minimal” showing in this matter, which is why Defendant CITY seeks Dismissal as its primary remedy. Page 5 of 7Lastly, it must be noted that rule 1.140(a)(4) of the Florida Rules of Civil Procedure provides that “[iJf the court permits or requires...a more definite statement, the. ..statement shall be served within 10 days after notice of the court's action.” Accordingly, should the Court choose only to require Plaintiff BANK to file a more definite statement, such statement must be filed within ten (10) days and should expressly set forth if, how and when the legal interest in this Mortgage was transferred or assigned to Plaintiff BANK. CONCLUSION FOR EACH OF THE FOREGOING REASONS, Defendant CITY OF PALM BAY, respectfully requests this Honorable Court dismiss this action based upon the fact that the Plaintiff, HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-3, has entirely failed to establish any legal interest in the subject matter of this litigation and thus does not have standing to pursue the instant litigation. In the alternative, Defendant CITY seeks an Order requiring the Plaintiff to file a more definite statement within ten (10) days showing if, how and when the legal interest in this Mortgage was acquired by the Plaintiff. JAMES D. STOKES, CITY ATTORNEY CITY OF PALM BAY 5240 Babcock Street NE, Suite 201 Palm Bay, Florida 32905-4643 Telephone: (321) 409-7185 Facsimile: (321) 409-7112 A Didu lf Lome ANDREW P. LANNON Deputy City Attorney Florida Bar No. 0648140 e-mail: lannoa@pbfl.org CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been sent by first class U. S. Mail to Attorney for Plaintiff, Jami L. Beasley, Esq., Elizabeth R. Wellborn, P.A., 1701 West Page 6 of 7 eeeved mw Hillsboro Blvd., Suite 307, Deerfield Beach, FL 33442; Defendant Homeowners, Larry Carter and Ina M. Brinson, 1052 Sablon Street, S.E., Palm Bay, FL 32909, this 9th day of March, 2009. du Lerrm ANDREW P. LANNON Page 7 of 7