BB&T First Motion To Dismiss
BB&T First Motion To Dismiss
Plaintiff,
vs. VERIFIED
MOTION TO DISMISS
Defendants.
__________________________________________________/
“Defendants), by and through the undersigned counsel, and respectfully move the DISMISS
THE FORECLOSURE ACTION WITH PREJUDICE regarding the above entitled civil action,
pursuant to Rules 1.540(a), 1.540(b), 1.110 (b) 1.120, 1.120(b), 1.120(a), 1.130(a) and 1.140(b)
(6), Fla. R. Civ. P. and precedent case law and in support states:
On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, decree, order or proceeding for
1. In ruling on a defendant's motion to dismiss, a trial court is limited to the four corners
of the Complaint, and it must accept all the allegations in the Complaint as true. See Lutz Lake
Fern Rd. Neighborhood Groups, Inc. v. Hillsborough County, 779 SO.2d 380, 383 (Fla. 2d DCA
2000). However, exhibits attached to a Complaint are a part of the Complaint. See Bott
v. City of Marathon, 949 So.2d 295 (Fla 3rd DCA 2007) ("when considering a motion to
dismiss, a trial court is required to consider any exhibit attached to, or incorporated in the
pleading"). See also Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3rd DCA
1971) (stating "[i]n considering a motion to dismiss the trial court was required to consider the
exhibit ... attached to and incorporated in the amended complaint" and quoting Florida Rule of
Civil Procedure 1.130(b), providing that "[a]ny exhibit attached to a pleading shall be considered
a part thereof for all purposes"). As such, an exhibit attached to a Complaint is a part of the
Complaint and may be considered when ruling on a motion to dismiss. Considering exhibits
attached to a Complaint does not violate the "four corners" rule. Further, exhibits attached to a
Complaint must agree with the allegations of the Complaint, and where to two do not agree, the
exhibits control. See also, Geico Gen. Ins. Co. V. Graci, 849 So.2d 1196 (Fla. 4th DCA 2003)
and Ginsberg v. Lennar Fla. Holdings, Inc. 645 So.2d 490, 494 (Fla. 3rd DCA 1994) (where
exhibits contradict complaint allegations, plain meaning of exhibits control). Harry Pepper &
Associates V. Lasseter, 247 So.2d 736 (Fla. 3rd DCA 1971) and see HIt Application Sys. V.
1. The separate Defendants do not recognize the Plaintiff, BRANCH BANKING AND
entity known to them, nor have they ever entered into any note, mortgage, or other contract or
2. The Purported Plaintiff, failed at the commencement of its foreclosure suit to timely
demonstrate that it is the actual holder, or represents a true holder in due course of the
promissory note and mortgage. Although, Purported Plaintiff alleges in paragraph two (2) of its
Complaint that it “…is successor in interest to Colonial Bank, f/k/a/ Colonial Bank, N.A.
(“Colonial Bank”), by asset acquisition from the F.D.I.C. dated August 14, 2009” – the
Purported Plaintiff does not provide any such document attached to its Complaint, particularly
showing proof of acquisition of the instant “certain” loan associated with the instant “certain”
Defendants.
3. The previous assertion is valid and important because Defense counsel has discovered
a Branch Banking & Trust Company official press release entitled, BB & T Acquires Deposits
and Certain Assets of Colonial Bank (Italics Emphasis Added). (SEE EXHIBIT A). At about
paragraphs four (4) and five (5) of the official press release it states as follows:
“…BB&T will not acquire any of the assets or assume any obligations of
Colonial’s holding company or select assets and liabilities of Colonial Bank….”
Also excluded are assets and liabilities the FDIC determines are related to
fraudulent or criminal activities. BB&T is indemnified by the FDIC for any
liabilities not expressly assumed in the transaction, including those related to
fraudulent, criminal or inappropriate activities of Colonial. (Emphasis Added).
4. The Purported Plaintiff has not shown any proof of acquisition or purchase of the Note
and Mortgage, whatsoever, pertaining to the particular and “certain” property asset or loan
owned by the instant “certain” Defendants. In other words, Purported Plaintiff (“BB&T”) has
not presented any proof, whatsoever, of acquisition of the “certain” asset or loan associated with
the instant “certain” Defendants. Consequently, Purported Plaintiff lacks standing and also
lacks capacity to bring the instant foreclosure action against the Defendants. Note: Lack of
5. The Defendants have been taken by “surprise” at the commencement of the instant
foreclosure action, inasmuch as Defendants. PRO SE, had been in on-going negotiations with
Colonial Bank regarding the property at issue, as well as other properties, when suddenly on or
about (xxxdate), and without warning, the Purported Plaintiff (“BB&T”) (without proof of
acquisition or proof of purchase of the Defendants particular loan) abruptly interrupted and
“shut-down” the negotiations that had been on-going (and were bearing fruit) between Colonial
Bank and Defendants. As proof of this assertion Defendants present one letter of such
However, Defendants do not limit their proof of the described negotiations to this one letter and
will provide the Court with any additional proof of the on-going negotiations as the court may
date), and without warning, essentially “raided” the Defendants’ various Colonial Bank
proof of acquisition or proof of purchase of Defendants’ particular loan(s), through its legal
counsel, the Purported Plaintiff informed Defendants counsel of the event (after-the-fact), in a
letter dated xxxxx(date) and addressed to Defendants’ counsel, XXXXXXXXXX (name). (SEE
“The Borrowers have accounts with BB&T, and BB&T has exercised its
right to set off these accounts against the balances owing under the loans.”
To reiterate: The Purported Plaintiff, without proof of acquisition of the instant “certain” loan
associated with the instant “certain” Defendants, suddenly and without warning “raided” the
Defendants’ various Colonial Bank accounts and did not divulge this unauthorized access and
“Neither the attached purported Note and/or Mortgage contains any language,
whatsoever, identifying the Plaintiff has the owner or holder of the Note and/or
“Exhibits attached to a Complaint must agree with the allegations of the Complaint, and
where to two do not agree, the exhibits control.” See also, Geico Gen. Ins. Co. V. Graci,
849 So.2d 1196 (Fla. 4th DCA 2003) and Ginsberg v. Lennar Fla. Holdings, Inc. 645
So.2d 490, 494 (Fla. 3rd DCA 1994) (where exhibits contradict complaint allegations,
plain meaning of exhibits control). Harry Pepper & Associates V. Lasseter, 247 So.2d
736 (Fla. 3rd DCA 1971) and see HIt Application Sys. V. Hartford Life, 381 So.2d 294
WHEREFORE, the above verified assertions, this Honorable Court, should take judicial
notice that Purported Plaintiff and/or its servicing agents and representatives have made obvious
misrepresentations and engaged in misconduct, unclean hands, and bad faith so as it should
shock the senses of this Honorable Court. Further, the Court should further exercise its broad
judicial discretion and enter an Order to DISMISS this civil action WITH PREJUDICE.
7. The Purported Plaintiff (“BB&T”) failed at the commencement of its foreclosure suit to
timely demonstrate that it was the actual holder, or represents a true holder) in due course of the
“certain” promissory note and mortgage. By way of instance and without limiting the scope of
this jurisdictional objection, the Purported Plaintiff failed to show, just how it came to represent
or to hold and own the “certain” note and mortgage as a real party in interest, nor as a party in-
equity, nor as a representative of any true holder. Stated another way: The Purported Plaintiff
failed to attach any documentation, whatsoever, to its originally filed Complaint (i.e. Acquisition
Agreement of the “certain” loan associated with the instant Defendants, or any Assignment),
establishing standing as a real party in interest or as a representative of a true holder. Nor did
purported Plaintiff attach any other type of documentation, whatsoever, showing “…proof of
purchase of the [“certain”] debt” establishing standing as a party in-equity (or standing as a
representative of a true party in-equity). WM Specialty Mortgage, LLC v. Salomon, Case No.
4D03-3318 (FL 5/26/2004) (Fla. 4th DCA, 2004). Citing Johns v. Gillian, 184 So. 143-144 (Fla.
1938) (hereafter, “WM Specialty). Consequently, purported Plaintiff’s assertions are conclusory
and wholly without factual support. Accordingly, the purported Plaintiff has failed to show that,
as a threshold matter, it has standing to bring its suit against Defendants and, without standing at
the commencement of the suit, any “four corners” argument purported Plaintiff may attempt is
8. More specifically, “[a] claimant’s standing to bring an action is distinct from questions
arising from the claimant’s noncompliance with one or more conditions precedent to maintaining the
Chiropractic, 913 So.2d 1284 (Fla 2nd DCA 2005). (hereafter, Progressive v. McGrath) . Furthermore,
with respect to standing created through valid assignments (or some other proof of purchase of the debt,
as required by Wm Specialty), yet not timely attached to the complaints, Progressive v. McGrath rejects
the rule of “Relation Back” (i.e. allowing cure through Amendments [or subsequent Notices of Filing] in
this context). The Second District Court of Appeal in Progressive v. McGrath clearly explains as
follows:
“This rule does not permit a party to establish the right to maintain an action
retroactively by acquiring standing to file a lawsuit after the fact. In this case if the
[Plaintiff] was without standing when the action was filed, the…action was, at best,
premature. See Livingston [v State Farm Mut. Auto. Ins. Co.], 774 So.2d at 717. A
new lawsuit must be filed. See Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla 4th
DCA 1990) (holding that the assignee of a mortgage could not maintain the
mortgage foreclosure action because the assignment was dated four months after
the action was filed; if the plaintiff wished to proceed on the assignment, it must file
a new complaint). In relying on the rule 1.190(c) and the “relation back” rule to
cure the [Plaintiff’s] lack of standing when it filed the original complaint, the circuit
court applied the incorrect law. (Underline Emphasis Added). Id. at 1286.
9. In further clarification the Second District Court of Appeal, again in Progressive v.
McGrath, states, “…[T]he general rule…is that the right of a plaintiff to recover must be
measured by the facts as they exist when the suit [is] instituted.” (Emphasis Added). Id at 1285
(Citing the supreme court, Voges v. Ward, 98 Fla, 304, 123 So.2d 793 (1929). Moreover, “…the
purported Plaintiff’s lack of standing at the inception of the case is not a defect that may be
cured by the acquisition of standing after the case is filed.” Progressive v. McGrath, 913 So.2d
1285 (Fla 2nd DCA 2005). (Emphasis Added). Finally, to make the rule perfectly clear as regards
assignments (or some other proof of purchase of the debt, as required by Wm Specialty) and their
importance to creating standing at the inception of the action, the Second District Court of
“Thus the assignment [or some other proof of purchase of the debt]…is not
merely a condition precedent to maintain an action on a claim held by the
person or entity who filed the lawsuit. Rather, it is the basis of the claimant’s
standing to invoke the processes of the court in the first place.” (Underline
Emphasis Added). Id at 1285.
10. It should be noted to this Honorable Court that, although Progressive v. McGrath is a
case dealing with PIP benefits and assignment to the rights to recover PIP benefits, the Court of
Appeal in Progressive v. McGrath decidedly expressed its concern of the “relation back rule” in
“We disagree [with the circuit court]. The circuit court's decision establishes
a rule of general application concerning the relation back of amended
pleadings to remedy the claimant's lack of standing when an action is filed.
This rule has the potential to be applied not only in PIP cases, but also in
mortgage foreclosure cases where assignments are common.” (Underline
and Emphasis Added). Id at 1287.
Consequently, yet again, the Purported Plaintiff (BB&T”) in the instant mortgage foreclosure
case -- through its failure to attach the its purported acquisition agreement or some other proof
of purchase of the debt, has failed to show that, as a threshold matter, it has standing to bring its
suit against Defendants and, without standing at commencement of suit, any “four corners”
argument purported Plaintiff may attempt is moot, and its claim must fail as a matter of law.
Consequently, WM Specialty (i.e. “upon proof of purchase of the debt”) interpreted with and
augmented by Progressive v. McGrath (i.e. “relation back of amended pleadings to remedy the
claimant’s lack of standing [cannot be applied]”) require this Honorable Court to Dismiss the
11. Further, the purported Plaintiff has failed to attach true and correct copies of all
documents to its originally filed Complaint, which either support its cause of action or the
Defendants’ defense. This is prejudicial because it does not adequately inform the Defendants as
to the identity of the true holder or owner of the note and mortgage, or to what they need to
defend against to avoid a great deprivation and miscarriage of justice – the loss of their property.
Defendants are being deprived of their fundamental rights to procedural due process of law as
guaranteed under the Florida and United States Constitutions and, therefore, this Honorable
12. Florida Rules of Civil Procedure Rule 1.120(a) Pleading Specific Matters provides as
follows:
“(a) Capacity. It is not necessary to aver the capacity of a party to sue or
to sued, the authority of a party to sue or be sued in a representative
capacity, or the legal existence of an organized association of person that
is made a party, except to the extent required to show the jurisdiction of
the court…When a party desires to raise an issue as to the legal existence
of any party, the capacity of any party to sue or be sued, or the authority of
a party to sue or be sued in a representative capacity, that party shall do so
by specific negative averment which shall include such supporting
particulars as are peculiarly within the pleader’s knowledge.
Additionally, Florida Rules of Civil Procedure Rule 1.110(b) requires that a Complaint include a
“short and plain statement of the grounds upon which the court’s jurisdiction depends…” In the
instant action the Purported Plaintiff (“BB&T”) has failed to plead or specify in what capacity
the Purported Plaintiff bring its suit with regard to the instant “certain” loan and “certain”
Defendants. Consequently, by failing to define or identify in any way the nature of its legal
entity to bring the instant action concerning the instant “certain” loan and “certain” Defendants,
the Purported Plaintiff (“BB&T”) has not plead that it has the capacity to maintain suit before
this Court.
13. “Capacity to sue” is and absence or legal disability which would deprive a party of
the right to come into court 59 AM.Jur.2d Parties § 31 (1971). This is in contrast to “standing”
which requires an entity have sufficient interest in the outcome of litigation to warrant the court’s
consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla.App. 4
Dist. (1982).
14. The issue of capacity to sue may be raised by motion to dismiss where the defect
appears on the face of the complaint. Hershel California Fruit Products co. V. Hunt Foods, 111
F. Supp. 603 (1975), quoting Coburn v. Coleman 75 F. Supp. 107 (1974); Klebano v. New York
been held to constitute a waiver of that defense. McDonough Equip. v. Sunset Amoco West, 669
So.2d 300 (Fla.App. 3 Dist. 1996); Plumbers loc. UN.. 519 , Miami Fla. V. serv. Plbg., 401 F.
Supp. 1008 (1975);’ and see Sun Val American Land Lease, 927 So.2d 259 (FlaApp. 2 Dist.
Defendants are being deprived of their fundamental rights to procedural due process of law as
guaranteed under the Florida and United States Constitutions and, therefore, this Honorable
CONCLUSION
For the reasons stated, the above verified assertions, and the presented evidence, this
Honorable Court, should take judicial notice that Purported Plaintiff (“BB&T”), and/or its
servicing agents and representatives have made obvious misrepresentations and engaged in
misconduct, unclean hands, and bad faith and has committed such serious fraud upon the Court,
so as to shock the senses of this Honorable Court. Additionally, Purported Plaintiff (“BB&T”)
lacks standing and also lacks capacity to commence and maintain this action. Consequently, this
RELIEF REQUESTED
WHEREFORE, Defendants request that this Honorable Court take judicial notice of the
verified assertions, facts, and presented evidence and to also enter an Order to DISMISS THIS
CIVIL ACTION WITH PREJUDICE, and to award the Defendants court costs, legal costs and
CERTIFICATE OF SERVICE
I, the undersigned counsel, hereby certify that a true copy of the foregoing Verified
Motion to Dismiss was furnished by FAX: (number) and by First Class U.S. Mail on this
(address_____________).
______________________________
Ann Smith Pellegrino, Esq
Fla. Bar # 646792
2215. W. Vina del Mar Blvd.
St. Petersburg, FL 33706
Phone and Fax: 727-363-8711
Email: [email protected]
Attorneys for Defendants
CONTINUE TO VERIFICATION….
VERIFICATION
(PURSUANT TO SECTION 92.525(2), FLORIDA STATUTES)
STATE OF FLORIDA
COUNTY OF PINELLAS
Under penalty of perjury, I declare that I have read the foregoing VERIFIED MOTION,
including by way of specific example, but not limited to, the attached exhibits and the Certificate
of Service as to the same and, to the best of my knowledge, the facts stated in it are true.
Dated: _______________2010
______________________________________
Ann Smith Pellegrino, Esquire
Florida Bar Number: 646792
2215 W. Vina del Mar Blvd.
Phone and Fax: 727) 363-8711
E-MAIL: [email protected]
EXHIBIT A: