Professional Documents
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Bob Motion To Dismiss
Bob Motion To Dismiss
Vs.
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:
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
3. The Mortgage referred to in Plaintiff’s complaint was issued by Allied Mortgage, and not the Plaintiff.
(3) that the Plaintiff is the owner or holder of the note in due course; and
(4) that a certain balance is due and owing on the note.
5. There is no evidence of an assignment from the real party in interest to the Plaintiff attached to the
6. Plaintiff has not produced an assignment, nor is there any evidence of an assignment recorded in the
public records.
7. 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. Because there is no proof the Plaintiff ever held the mortgage
and not or took possession of the mortgage or note, Plaintiff has no claim or right to prosecute the
Foreclosure.
8. There is no proof that a proper chain of assignments took place and that lien positions were properly
perfected.
9. Federal Circuit Courts have ruled the only way to prove the perfection of any security, including
promissory notes, is by the actual possession of the security. Current or prior possession must be proven.
See Downing v. Fist National Bank of Salt Lake City, 81 So.2d. 846 ( Fla 1955); Figueredo v.Bank
Espitito Santo, 537 So. 2d 1113 (Fla 3rd DCA 1968); Pastore- Borroto Developments, Inc. v. Marevista
Apartments, M.B. Inc. 596 So. 2d 526 (Fla 3rd DCA 1992); Nat’l. Loan Investors, LP v. Joymar Assoc.
10. “ only those who have standing to be heard in a judicial proceeding may participate in it” Bryom v.
11. “One who does not have ownership , possession, or the right to possession of the mortgage and the
obligation secured by it, may not foreclose the mortgage” 37 Fla. Jur. Mortgage and Deeds of Trust
Sec 240 citing In re. Shelter Development Group Inc. 50 B.R. ( Bankr. S.D. Fla. 1985).
12. Plaintiff attached to the complaint a mortgage identifying Allied Mortgage, an entity that is not
the Plaintiff, as the owner and holder of the mortgage. This document conflicts with the Plaintiff’s
allegations of material facts in the complaint as to ownership of the note and mortgage.
13. 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, thereby rendering the complaint insufficient to identify who the
Plaintiff is or what facts establish the standing of the Plaintiff to file and prosecute this foreclosure.
14. Fla. R. Civ. P. 1.130(a) provides in pertinent part: “ All bonds, notes, bills of exchange, contracts,
accounts or documents upon which action may be brought or defense made, or a copy there of or a copy
of the portions thereof material to the pleadings, shall be incorporated or attached to the pleading.
15. When exhibits are inconsistent with Plaintiff’s allegations of material facts as to the real party in
interest, such allegations cancel each other out. Fadell v.Palm Beach County Canvassing Board,
772 So. 2d. 1240 (Fla 2000); Greenwald v. Triple D. Properties Inc, 424 So. 2d. 185,187
16. Florida Rule of Civil Procedure 1.130(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, those
allegations are neutralized and the Plaintiff’s complaint is rendered objectionable. Greenwald v. Triple
17. Florida Rule of Civil Procedure 1. 210(a) provides in pertinent part; “ Every action may be prosecuted
in the name of the real party of interest, but a personal representative, administrator, guardian, trustee of
an express trust, with whom or in whose name a contract a contract has been made for the benefit of
another, or a party expressly authorized by statue may sue in that persons own name without joining
18. The Plaintiff’s in this action meets none of the aforementioned criteria. Because the exhibits attached
to Plaintiff’s complaint are inconsistent with Plaintiff’s allegations as to ownership of the subject
promissory note and mortgage, 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.
19.
in question in order to maintain the action. Your Construction Action Inc. v. Gross, 316 2d.
596(Fla.4th DCA 1975)(finding that the plaintiff, a trustee of the Massachusetts business trust was,
“ the sole payee on the note and mortgage in question”)(citing 22 Fla. Jur. Mortgages Sec.314(1958).
20. WHEREFORE, the Defendant, Robert E. Miller respectfully requests that this Honorable Court
enter an Order dismissing Plaintiff’s Complaint, 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, 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
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail
To the following: LEE COUNTRY CLERK OF COURTS, Law Offices of Marshall C. Watson, P.A.
1800 NW 49th Street, Suite 120 Fort Lauderdale, Florida 33909 Attorney for Plaintiff, this_________
Robert E. Miller
1338 Mayfair Terrace
Ft Myers, Florida,. 33919
Tel: 239-895-3959