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IN THE CIRCUIT COURT FOR THE 15TH JUDICIAL CIRCUIT,

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IN AND FOR PALM BEACH COUNTY, FLORIDA

CHASE HOME FINANCE LLC, GENERAL JURISDICTION


DIVISION
Plaintiff,
CASE NO.
vs. 50 2008 CA 016857XXXX MB
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Division: AW
JUDITH KOREN; THE UNKNOWN
SPOUSE OF JUDITH KOREN ANY AND
ALL UNKNOWN PARTIES CLAIMING BY,
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THROUGH, UNDER, AND AGAINST THE DEFENDANT JUDITH
HEREIN NAMED INDIVIDUAL KOREN’S MOTION TO
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DEFENDANT(S) WHO ARE NOT KNOWN DISMISS COMPLAINT,
TO BE DEAD OR ALIVE, WHETHER SAID MOTION TO VACATE
UNKNOWN PARTIES MAY CLAIM AN CLERK’S DEFAULT AND IN
INTEREST AS SPOUSES, HEIRS, THE ALTERNATIVE MOTION
DEVISEES, GRANTEES, OR OTHER FOR SUMMARY JUDGMENT
CLAIMANTS; THE EDGE CONDOMINIUM
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NO. ONE ASSOCIATION, INC.; TENANT
#1, TENANT #2, TENANT #3, and TENANT
#4 the names being fictitious to account for
parties in possession,
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Defendants.
___________________________________/
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Defendant, JUDITH KOREN and GIL KOREN, move to vacate the Clerks Default and

move to dismiss the complaint of Plaintiff, CHASE HOME FINANCE LLC, on the grounds that
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it fails to state a cause of action and fails to allege sufficient facts to establish that it is the real

party in interest. To the extent that this motion requires evidence outside the four corners of the

Complaint, Defendants move, in the alternative, for summary judgment on the stated grounds.
d.

Defendants rely on the Court’s power of judicial notice as indicated below. In support of these

motions, Defendants state as follows:


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ICE LEGAL, P.A.


1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 50 2008 CA 016857XXXX MB

Motion To Vacate Clerk’s Default


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I. Entry of Clerk’s Default Results in Admission of Only Well-Pled Allegations

Plaintiff filed a motion for default to be entered by the Clerk against Defendants,

JUDITH KOREN and Gill Koren, on September 8, 2008. The Clerk subsequently entered a
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default against Defendants on October 6, 2008. A default “admits every cause of action that is

sufficiently well-pled to properly invoke the jurisdiction of the court,” Szucs v. Qualico

Development, Inc., 893 So.2d 708 (Fla. 2nd DCA 2005), but see Bowman v. Kingsland
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Development, Inc., 432 So.2d 660, 662-63 (Fla. 5th DCA 1983). Here as addressed below,
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Plaintiff’s allegations and attachments fail to properly invoke the jurisdiction of the Court.

Specifically, Plaintiff has failed to state a cause of action and fails to sufficiently allege they are

the real party in interest.


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In Becerra v. Equity Imports, Inc., 551 So.2d 486, 488 (Fla. 3rd DCA 1989), the court

stated:
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The power of the court to grant relief from a judgment entered on default has been
accurately summed up as follows:

A default admits liability as claimed in the pleading by the party


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seeking affirmative relief against the party in default. It operates as


an admission of the truth of the well pleaded allegations of the
pleading, except those concerning damages. It does not admit facts
not pleaded, not properly pleaded or conclusions of law. Fair
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inferences will be made from the pleadings, but forced inferences


will not. The party seeking affirmative relief may not be granted
relief that is not supported by the pleadings or by substantive law
applicable to the pleadings. A party in default may rely on these
limitations.
d.

H. Trawick, Trawick's Florida Practice and Procedure § 25-4 at 348 (1988 ed.)
(footnotes omitted). See also North Am. Accident Ins. Co. v. Moreland, 60 Fla.
153, 53 So. 635 (1910) (conclusions of law, facts not well pleaded, and forced
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inferences are not admitted by a default judgment); Board of Regents v. Stinson-


Head, Inc., 504 So.2d 1374 (Fla. 4th DCA 1987) (party in default admits only the
well-pleaded facts and acquiesces only in the relief sought by the pleading);
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ICE LEGAL, P.A.
1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 50 2008 CA 016857XXXX MB

Williams v. Williams, 227 So.2d 746 (Fla. 2d DCA 1969) (defendant who suffers
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default admits only well-pleaded facts and acquiesces only in the relief prayed
for); Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (1984)
(default judgment did not preclude defendant from challenging sufficiency of the
complaint as a basis for the judgment). See generally 49 C.J.S. Judgments § 200
at 356 (1947) (judgment by default operates as a waiver of any mere formal errors
in plaintiff's pleading but does not cure a totally defective complaint or waive
errors which go to the foundation of plaintiff's cause of action).
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The Court went on to state:

That where a default judgment should be set aside where the complaint fails to
state a cause of action, courts find it unnecessary to decide whether the defendant
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otherwise set forth good grounds for failing to respond to the complaint. Citing to
Thompson v. Dildy, 227 Ark. 648, 300 S.W.2d 270 (1957). This court, likewise,
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has held that a motion to set aside a default judgment requires no allegations or
showing of excusable neglect where the basis for the motion is that the allegations
in the complaint do not entitle the plaintiff to relief. Magnificent Twelve, Inc. v.
Walker, 522 So.2d 1031 (Fla. 3d DCA 1988). Id at 489.

Given the fact that Plaintiff’s attachments negate the allegations of the complaint
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regarding ownership of the note and mortgage, as discussed below in the Defendants’ motion to

dismiss the complaint, the clerk’s default should be vacated.


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II. An Amended Complaint Supersedes the Initial Complaint and Affords


Defendant An Opportunity to Respond to the Amended Complaint
Before Default Can properly be Entered.
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If the Court dismisses the Complaint and grants plaintiff leave to amend the default should be

vacated as a legal nullity. An amended complaint supersedes the initial complaint and therefore
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Defendant would be required to file a responsive pleading within 10 days or be subject to an

entry of default again. In Quintero-Chadid Corp. v. Gersten, 582 So. 2d 685, 688 (Fla. 3rd DCA

1991) the Court ruled:


d.

Where the amendment occurs prior to serving a responsive pleading there is no


distinction between amendments made before or after the original time for
answering the complaint passes. If an amended complaint is filed a party shall
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have an additional twenty days to respond. Thus, a party could not be defaulted
until twenty days from service of the amended complaint, even if it is filed shortly
before the answer to the initial complaint would have been due. Isle of Sandalfoot
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ICE LEGAL, P.A.
1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 50 2008 CA 016857XXXX MB

Contractors, Inc. v. Jess Leisch-General Contractors, Inc., 426 So.2d 1223 (Fla.
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4th DCA 1983).

In Isle of Sandalfoot Contractors Inc., v. Jess Leisch-General Contractors, Inc., 426

So.2d 1223 (Fla. 4th DCA 1983) a complaint was filed and then amended four days later. No

answer was filed in response to the original complaint and a default was entered. Appellants
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timely filed an answer to the amended complaint. The Trial Court subsequently entered a default

and a judgment thereon. The Trial Court was reversed on the grounds that the appellants had
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timely filed an answer to the amended complaint, and as the amended complaint superseded the
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original complaint the entry of default was improper. Furthermore the Court stated, “Although a

good deal of the parties’ briefs are devoted to argument over whether excusable neglect and a

meritorious defense were shown in conjunction with the motion to vacate, our decision makes it
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unnecessary to reach that point. The default was improperly entered and should have been

vacated for the reasons stated herein.” Id at 1224.

Even if the Court doesn’t dismiss the complaint with leave to amend, Plaintiff’s own
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conduct requires Plaintiff to amend the complaint. As such an amended complaint would

supersede the initial complaint and Defendant would be required to file a responsive pleading as
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discussed below.

Wherefore, Defendants request this Court vacate the Clerks Default.


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MOTION TO DISMISS

I. On the Face of the Complaint and Incorporated Documents, Plaintiff Is Not the
Real Party in Interest.
d.

The Complaint filed by Plaintiff seeks to foreclose a mortgage and reestablish a lost

promissory note. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent
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part:
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ICE LEGAL, P.A.
1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 50 2008 CA 016857XXXX MB

Every action may be prosecuted in the name of the real party in interest, but ... a
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party with whom or in whose name a contract has been made for the benefit of
another...may sue in the persons own name without joining the party for whose
benefit the action is brought...

The style of this action identifies Plaintiff as: CHASE HOME FINANCE LLC. Attached

to the Complaint, however, is a copy of a note which identifies Choice Mortgage Bank as the
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original “Lender” and “Mortgagee.”

It appears on the face of the Complaint and the incorporated documents that a person
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other than Plaintiff is the true owner of the claim sued upon and that the Plaintiff is not the real
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party in interest and is not shown to be authorized to bring this foreclosure action. While

Plaintiff has alleged that it is “now the holder of the Mortgage Note and Mortgage” (Compl. ¶ 4),

Plaintiff did not attach any document that would transfer an interest in the note and mortgage to
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Plaintiff. The attached copy of the allegedly lost note contains an endorsement that has been

written void, and an additional endorsement on an allonge. The endorsement on the allonge

indicates that Choice Mortgage Bank endorsed this note to JP Mortgage Chase Bank, N.A., not
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plaintiff.

Plaintiff’s allegations that they are the holder of the Mortgage Note and Mortgage are
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negated by the attachment that shows only JP Morgan Chase Bank, N.A. is the holder of the note

and entitled to enforce the note. Additionally, Plaintiff has failed to even allege that they own
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the note and mortgage. Being the holder of the mortgage is of no consequence as a mortgage is

not a negotiable instrument. Plaintiff is seeking the equitable remedy of foreclosure pursuant to
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the security interest created by the mortgage and therefore must own the mortgage. Simply put,

the Plaintiff, must be the mortgagee to foreclose.


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Where the attachments conflict with the allegations in the Complaint, the attachments

supersede and negate the allegations. Fladell v. Palm Beach County Canvassing Board, 772
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ICE LEGAL, P.A.
1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 50 2008 CA 016857XXXX MB

So.2d 1240 (Fla. 2000) ("If an exhibit facially negates the cause of action asserted, the document
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attached as an exhibit controls and must be considered in determining a motion to dismiss.");

Greenwald v. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 4th DCA 1983)(“When there is

an inconsistency between the general allegations of material fact in the complaint and the
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specific facts revealed by the exhibit, and they have the effect of neutralizing each other, the

pleading is rendered objectionable”).

On September 8, 2008 Plaintiff filed a Notice of Voluntary Dismissal as to Count II Re-


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Establishment of Lost note. Insomuch as Plaintiff seeks to dismiss count two of the complaint,
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Plaintiff is not entitled to do so by a voluntary dismissal of an individual count, and such an

attempt is a legal nullity. In Deseret Ranches of Florida, Inc., v. Bowman, the Court held that

“only an entire action may be voluntarily dismissed under Fla.R.Civ.P 1.420(a) (1); there can be
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no partial dismissal, no dismissal of less than all causes of action.” 340 So.2d 1232, 1233 (Fla.

4th DCA 1976). The Court went on to say that, “The proper method of deleting less than all
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counts from a pleading is amendment of the pleading pursuant to Fla. R. Civ. P. 1.190.” Id.

On September 9, 2008 Plaintiff filed with the Court a “Notice of filing of Original Note.”
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This alleged “Original Note” has the same endorsement on the note that has been marked void as

was attached to the initial complaint. However, it is missing the allonge that was attached to the
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copy of the note attached to the complaint. The issue of how an allonge on an original note is

missing when it had been previously attached raises suspicion given that allonge, by definition,

must be permanently affixed to the note.


d.

On June 25, 2009 Plaintiff filed with the Court a “Notice of Filing of Original Note.”

This newly filed alleged “original note” has distinct differences from the previous filing of the
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allegedly original Note filed nearly a year earlier. The newest alleged original note contains an
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ICE LEGAL, P.A.
1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 50 2008 CA 016857XXXX MB

endorsement on the bottom of the note in the form of a stamp that has been endorsed to JP
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Morgan Chase Bank, NA by JP Morgan Chase Bank NA as Attorney in Fact for Choice

Mortgage Bank. The previous endorsement that has appeared on each of the preceding copies of

the note (but was voided out) has been moved almost completely off the page. Furthermore, the
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allonge that was attached to the original complaint, at which point in time it was allegedly lost,

contained an endorsement from Choice Mortgage Bank to JP Morgan Chase Bank NA has

disappeared from both subsequent filings of the allegedly original notes.


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Aside from the fact that Plaintiff appears to have fraudulently created documents and
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titled them originals so as to mislead the Court, none of these documents identify Plaintiff as the

holder of the note. Additionally, a cursory review of the various notes in this case contain

signatures that do not match. The two alleged original notes also differ in substance.
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Specifically, the two notes contain different payment amounts and different clauses. Plaintiff has

repeatedly shown that they are not entitled to enforce the Note by filing three copies, referring to
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two of them as originals, which are not endorsed to Plaintiff or in blank making the note a bearer

instrument.
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WHEREFORE, Defendants move to dismiss this action on the grounds that Plaintiff has

failed to allege sufficient facts to establish that it is the real party in interest and therefore, has
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failed to state a cause of action.


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ICE LEGAL, P.A.
1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 50 2008 CA 016857XXXX MB

Dated: April 9, 2010.


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ICE LEGAL, P.A.
Counsel for Defendants
1975 Sansburys Way, Suite 104
West Palm Beach, FL 33411
Telephone (561)793-5658
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Facsimile (866) 507-9888

By:
CHRISTOPHER T. IMMEL
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Florida Bar No. 0066204
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served by mail
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this April 9, 2010 to all parties on the attached service list.

ICE LEGAL, P.A.


Counsel for Defendants
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1975 Sansburys Way, Suite 104


West Palm Beach, FL 33411
Telephone (561)793-5658
Facsimile (866) 507-9888
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By:
CHRISTOPHER T. IMMEL
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Florida Bar No. 0066204


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ICE LEGAL, P.A.
1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 50 2008 CA 016857XXXX MB

SERVICE LIST
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Anne M. Cruz-Alvarez, Esq.
FLORIDA DEFAULT LAW GROUP, P.L.
P.O. Box 25018
Tampa, FL 33622-5018
(813) 251-4766
Plaintiff’s counsel
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ICE LEGAL, P.A.
1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888