IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY
CIVIL DIVISION
HSBC BANK, USA, NA Case No. : 29-2010-CA-022790
Plaintiff, Division: B
vs.
EUGENIA WEST,
Defendant (s)
_________________________/
MOTION TO STRIKE COMPLAINT
COMES NOW, the defendant, EUGENIA WEST, (hereinafter“Defendants”), by
and through undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140
(b), 1.420 (b) and 1.110 (b), hereby motion this honorable Court to grant and order
striking the Complaint of Plaintiff, HSBC BANK, USA, NA, (hereinafter “ Plaintiff”)
and, in support , state as follows:
1. Plaintiff’s Complaint is not verified.
2. Plaintiff Complaint is not verified within the body of the complaint. The
requirement of Fla state. 92.525(2) also state that verification “shall be printed or
typed at the end of or immediately above the signature of the person making the
declaration.” No such verification attached to the complaint; therefore, does not
comply with this requirement. Please see a Manatee county (Twelfth Judicial
Circuit) May 6th, 2010 Final Order Dismissing SUA SPONTE, due to incompletely
verified complaint ( which “ Upon review of the record, the Court has determined
that Plaintiff’s complaint is to foreclosure a residential mortgage and that certain
portions of it are not verified”) Attached hereto as Exhibit “B”.
3. The Plaintiff‘s supported verification contains language that verification is to the
best of signers knowledge and belief and not in conformity with Fla. Stat.
92.525(2). Henry Trawic makes clear that “verification” means that the verifying
party attests that the facts alleged in the complaint are true. Trawick Florida
Practice and Procedure Sec. 6:14 (Verification). Beverette v. Graham, 131 So. 826,
287 (Fla. 1931) ; Burns v. Burns, 174 So.2d 432, 434 (Fla. 2d DCA 1965). “ If
verification is required by rule or statute then it may not be based on “information
or belief”. Moreover, it is clear that failure to verify may not be based on
“information or belief”. Moreover, it is cleat that failure to verify may be attacked
via a Motion to Strike.
4. Circuit Court judges across the State are dismissing the Foreclosure Complaint
(when not properly verified or not verified whatsoever) at least without prejudice.
Please see also Judge Lynn Tepper’s Order granting Homeowners Motion to Strike
Unverified Complaint in Nationstar Mortgage v. Lynn E. Menke, Pasco County
Case No. 2010-CA-3249 (J4). Copy of Order Attached hereto as Exhibit “A”.
5. Plaintiff has failed to conform to the newly instituted Florida Rules of Civil
Procedure concerning foreclosure complaints.
6. The Florida Supreme Court has recently adopted a new Florida Rule of Civil
Procedure for all mortgage foreclosure complaints involving residential real
property some of which became effective “immediately with the publication of the
opinion.” The new Florida Rule of Civil Procedure 1.110 (b) requires the utilization
of verified complaints and became applicable to Florida Courts on February 11,
2010. See Fla. Sup. Ct. Order SC09-1460 and SC09-1579.
7. The Florida Supreme Court requirement went into effect February 11, 2010. See
Fla. Sup. Ct. Order SC09-1460 and SC09-1579, p. 9-10.
8. Plaintiff’s Complaint was filed with the Court on November 23, 2010.
9. As such, Plaintiff’s Complaint should have been verified pursuant to the amended
Florida Rule of Civil procedure 1.110(b)
10. Henry Trawick makes clear that “verification” means that the verifying party
attests that the facts alleged in the complaint are true. Trawicks Florida Practice and
Procedure Sec. 6: 14 (Verification). Beverette v. Graham, 131 So. 826, 827 (Fla.
1931) ; Burns v. Burns, 174 So. 2d 432, 434 (Fla. 2d DCA 1965). If verification by
rule or statute then it may not be based on “information or belief”. Trawicks
Florida Practice and Procedure Sec. 6:14 (Verification). Moreover, it is clear that
failure to verify may be attacked via a Motion to Strike. Id
11. Plaintiff’s complaint is not properly verified- as such defendants seek said
Complaint be stricken for its failure to adhere to the Florida Rules of Civil
Procedure.
12. Defendants seeks attorney’s fee for this motion and any hearing upon said motion
under the terms of the mortgage filed with the Complaint and under the “compelled
mutuality of attorney’s fees” provisions of Florida Statute 57.105 (7).
WHEREFORE, the Defendant respectfully request the striking of Plaintiff’s
Complaint, along with costs, attorney’s fees and any other remedy that this
honorable Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy has been furnished to Kali
Campbell, Esq. Florida Default Group, Attorneys for the Plaintiff, P.O Box 25018,
Tampa, FL 33622, by U.S Mail this ____, day of ________, 20___.
MILLS LAW, P.A
_____________________________
Roger O. Mills, ESQUIRE
P.O Box 172446
Tampa, FL 33672
Fl. Bar # 364746
ATTORNEY FOR DEFENDANT
