BANK OF AMERICA LGTS, First Horizon Home Loans, a division of FIRST TENNEESEE BANK NATIONAL ASSOCIATION Plaintiff, Vs. ROBERT E. MILLER et al, Defendants. ---------------------------------------------------------/ DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION AND MOTION TO DISMISS FOR FAILURE TO SUBMIT A COPY OF THE ASSIGNMENT OF PROMMISSARY NOTE AND MORTGAGE COMES NOW the Defendant Robert E. Miller pro se, and file this Motion to Dismiss Plaintiff’s complaint pursuant to Fla.R. Civ. P. 1.210(a) and 1.140 (b) and move the court to dismiss or abate the action based on violations of trust statues and state: 1. Plaintiff lacks standing to Pursue Foreclosure Action 1. The Plaintiff, First Horizon Home Loans, a division of FIRST TENNEESEE BANK NATIONAL ASSOCIATION, has not filed its amended complaint within fifteen (15) days as ordered by this court against the Defendant for Mortgage Foreclosure, which expired on February 26, 2011. Which is attached and made part of as Exhibit “A” 2. Plaintiff states it is the “servicer and holder of the note and mortgage” referred to it in it’s complaint. These allegations are directly conflicting with the mortgage and other documents attached to the complaint thereby rendering the complaint insufficient to identify who the Plaintiff is or what facts establish the standing of the Plaintiff to file and pursue this foreclosure. 3. The Mortgage referred to in Plaintiff’s complaint was issued by Allied Mortgage, and not the Plaintiff. 4. In order to recover on a promissory note, the Plaintiff must prove: (1) the existence of the note in question ; (2) that the party sued signed the note; (3) that the Plaintiff is the owner or holder of the note in due course; and

8. 12. 10. Current or prior possession must be proven. LP v. There is no proof that a proper chain of assignments took place and that lien positions were properly perfected. 5. Fist National Bank of Salt Lake City. 50 B. 767 So. v. thereby rendering the complaint insufficient to identify who the . Federal Circuit Courts have ruled the only way to prove the perfection of any security. 715. 9. 551 (Fla 3rd DCA 2000). M. Mortgage and Deeds of Trust Sec 240 citing In re. “One who does not have ownership . Plaintiff fails to establish in any of its papers or filings it owned or held the mortgage or the note at the commencement of this action. See Downing v. as the owner and holder of the mortgage. Nat’l. Pastore. 2d 526 (Fla 3rd DCA 1992). ( Bankr.B.Borroto Developments. “ only those who have standing to be heard in a judicial proceeding may participate in it” Bryom v. Marevista Apartments. 537 So. 2d 1113 (Fla 3rd DCA 1968). There is no evidence of an assignment from the real party in interest to the Plaintiff attached to the complaint with regard to the note. 846 ( Fla 1955). nor is there any evidence of an assignment recorded in the public records. Plaintiff attached to the complaint a mortgage identifying Allied Mortgage. 596 So. The Plaintiff’s complaint fails to contain sufficient fact to establish who the Plaintiff is or the Plaintiff’s relationship to the Defendant. The Plaintiff alleges it is the owner and holder of the subject note and mortgage attached to the complaint. 6. 13.(4) that a certain balance is due and owing on the note. Inc. This document conflicts with the Plaintiff’s allegations of material facts in the complaint as to ownership of the note and mortgage. Figueredo v. possession.2d 549. Joymar Assoc. an entity that is not the Plaintiff. Gallagher.R. may not foreclose the mortgage” 37 Fla. Fla.D. is by the actual possession of the security. 81 So. or the right to possession of the mortgage and the obligation secured by it. 1985). S. Inc. Plaintiff has no claim or right to prosecute the Foreclosure. 578 2d. 7.Bank Espitito Santo. including promissory notes. Because there is no proof the Plaintiff ever held the mortgage and not or took possession of the mortgage or note.2d. Jur. 717 (Fla 5th DCA 1991) 11. Loan Investors. Shelter Development Group Inc. Plaintiff has not produced an assignment.

2d. Civ. 15. trustee of an express trust. a trustee of the Massachusetts business trust was. Florida Rule of Civil Procedure 1. P.Plaintiff is or what facts establish the standing of the Plaintiff to file and prosecute this foreclosure. notes. the Defendant. Mortgages Sec. 316 2d. Greenwald v. 772 So. bills of exchange. in question in order to maintain the action. “ the sole payee on the note and mortgage in question”)(citing 22 Fla. those allegations are neutralized and the Plaintiff’s complaint is rendered objectionable. 20.” 18. Greenwald v. Because the exhibits attached to Plaintiff’s complaint are inconsistent with Plaintiff’s allegations as to ownership of the subject promissory note and mortgage. 424 So. Gross. but a personal representative. 4th DCA 1983). 596(Fla.Palm Beach County Canvassing Board. with whom or in whose name a contract a contract has been made for the benefit of another. or a copy there of or a copy of the portions thereof material to the pleadings. 2d. WHEREFORE. contracts. R. v. Jur. Miller respectfully requests that this Honorable Court . When exhibits are inconsistent with Plaintiff’s allegations of material facts as to the real party in interest. 424 So. 1. 2d 185.130(b) provides in pertinent part: “ Any exhibit attached to a pleading shall be considered a part thereof for all purposes” Because the facts revealed by Plaintiff’s exhibit are inconsistent with Plaintiff’s allegations as to the ownership of the subject note and mortgage. 16. Fadell v. “ Every action may be prosecuted in the name of the real party of interest. 210(a) provides in pertinent part.130(a) provides in pertinent part: “ All bonds. Robert E.187 (Fla. shall be incorporated or attached to the pleading. accounts or documents upon which action may be brought or defense made. Triple D. or a party expressly authorized by statue may sue in that persons own name without joining the party for whose benefit the action is brought.187 (Fla 4th DCA 1983).314(1958). 1240 (Fla 2000). Properties. 14. Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action upon which relief can be granted by this court. Properties Inc. Florida Rule of Civil Procedure 1. Your Construction Action Inc. Fla. administrator.4th DCA 1975)(finding that the plaintiff. The Plaintiff’s in this action meets none of the aforementioned criteria. Inc. such allegations cancel each other out. guardian. 17. 19. 185. Triple D.

Suite 120 Fort Lauderdale. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. Watson. Florida 33909 Attorney for Plaintiff. Miller 1338 Mayfair Terrace Ft Myers. which clearly requires the plaintiff in a residential foreclosure action must own the note and mortgage ction with the filing of this Motion and any other relief this Court deems just. 1800 NW 49th Street. this_________ Robert E. 33919 Tel: 239-895-3959 . equitable. Mail To the following: LEE COUNTRY CLERK OF COURTS. and that the Defendant be awarded reasonable Attorney’s fees and costs in conneThe Plaintiff is not the real party in interest in this mortgage foreclosure action under Florida law.enter an Order dismissing Plaintiff’s Complaint. Florida. and proper..A. P.S. Law Offices of Marshall C.

Sign up to vote on this title
UsefulNot useful