IN THE CIRCUIT COURT OF THE 9% JUDICIAL CIRCUIT. IN AND FOR ORANGE COUNTY, FLORIDA, CIVIL DIVISION CASES U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR MARM 2006-2 Plain Vs. Defendant DEFENDANTS MOTION and MEMO to DISMISS COMPLAINT. Defendants’ Motion to Dismiss Complaint Defendant(s), , pursuant to Fla.R.Civ.P. 1.130(a), Fla.R.Civ.P.1.140(b)(6), and F.S 90.953 move to dismiss the complaint in this action, and for the motion would show: Let the record show for Defendants appeal, 1. This Court lacks subject matter jurisdiction to proceed. Subject matter jurisdiction has never been established on the record. The jurisdictional question can be raised at any time and can never be time-barred. DeClaire v. Yohanan, 453 So. 2d 375 (Fla. 1984). The Court should dismiss this action pursuant to Rules 1,210(a) and 1.140(7) of the Florida Rules of Civil Procedure because the record is clear from the copy of the alleged promissory note and mortgage submitted as evidence that a person other than Plaintiff is the true owner of theclaim sued upon and that Plaintiff is not the real party in interest and is not shown to be authorized to maintain this foreclosure action. Plaintiff has not even shown a chain of title that would show it has standing to bring the foreclosure. In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Plaintiff is not entitled to maintain this action in which it seeks to foreclose on a note which Plaintiff does not own. Your Construction Center, Inc. v. Gross, 316 So, 2d 596 (Fla. 4th DCA 1975) 3. Florida Courts has maintained that a Plaintiff cannot maintain a cause of action to enforce a mission promissory note or to foreclose on a related mortgage in the absence of PROOF that it or its assignor ever held possession of the promissory note. 3. To state a cause of action for mortgage foreclosure, Plaintiff must at the very least allege the rudiments of Fla.R.Civ.P. 1.944. This complaint omits the essence, that the Defendant executed a mortgage with the Plaintiff, and thus does not state a cause of action; accordingly, the complaint must be dismissed. 4. To state a cause of action on a note, a Plaintiff must have the note or a good excuse why it does not. Plaintiff here has neither, accordingly, the complaint must be dismissed. 5, Plaintiff has not even pled the formal requirements for a reestablishment count: it does not show what happened to the note, or when, or who was entitled to enforce the note at that time as a matter of record, the Plaintiffs states the opposite. Neither does Plaintiff even mention the protection required by Fla. Stat. § 673.3091(2). Accordingly Plaintiff has failed to state a cause of action accordingly, the complaint must be dismissed. 5. Plaintiff is in violation of Title 18 U.S.C § 472 Uttering counterfeit obligations or securities Whoever, with intent to defraud, passes, utters, wpublishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States. shall be fined under this title or imprisoned not more than 20 years, or both Title 18 USC § 473 Dealing in counterfeit obligations or securities Whoever buys, sells, exchanges. transfers, receives. or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be fined under this title or imprisoned not more than 20 years, or both. Whoever, with intent to defraud, makes, executes, acquires, scans, captures, records, receives, transmits, reproduces, sells, ot has in such person’s control, custody, or possession, an analog, di obligation or other security of the United St ital, or electronic image of any ates is guilty of a class B felony. Wherefore, for the foregoing reasons, and as more fully discussed in the memo which follows, asks the Court to dismiss the complaint. Memorandum Supporting Motion to Dismiss On a motion to dismiss, our gaze is constrained to the four corners of the complaint. William H. Scovell v. Delco Oil Co., Inc., 798 So.2d 844, 846 (Fla. 5" DCA 2001). Where allegations are not plainly untrue, we are forced to accept them.What we cannot do is make up facts omitted from the complaint. The complaint here fails to omit the key elements of the causes of action. It fails to allege that the Defendant signed and delivered a mortgage and note with the Plaintiff. t fails to include a copy of the note sued on. It also fails to set forth the essential facts to reestablish a lost instrument Fla.R.Civ.P. 1.944 provides the form for a mortgage foreclosure complaint. The essence of the complaint is in the sample paragraph 7. The form requires that a Plaintiff set forth that on such a date, the Defendant executed and delivered a promissory note and mortgage with the Plaintiff. Plaintiff faiis miserably. This complaint is awkwardly worded and shows one of the risks of using the passive voice: we lose the proper subject, verb, and object. Plaintiff attempts, in 117, to include the required allegations. However, in its unfortunate construction, Plaintiff fails to make any allegation that any Defendant, or in fact anyone whatever, executed the mortgage with the Plaintiff. Let the record show for the Defendants Appeal, that to state a cause of action on a note, a Plaintiff must either have the original note or a good explanation for why he does not. The Plaintiff's complaint fails to contain sufficient facts to establish who the Plaintiff is and its relationship to the Defendant and to the claim for foreclosure of a promissory note, including the failure to show any recorded or attached assignment, note, or proper chain of title that would identify the owner of the subject promissory note. The complaint fails to identify who the Plaintiff is and fails to allege facts sufficient to determine the standing of the Plaintiff. State Street Bank & Trust Co. v. Hartley Lord, 851 So.2d 790, 791 (Fla.4th DCA 2003). If a Plaintiff lacks both the instrument and a good explanation, he cannot prevail Plaintiff admits that it lacks the original note, | 3. Plaintiff also admits, that it cannot explain why it lacks the note: “Plaintiff is unable to state the manner in which this occurred”. In fact, it cannot decide whether the notes whereabouts can ever be determined and continues to state that the note is not in Plaintiffs custody. Itis easy to understand why Plaintiff lacks the Note. Most of us in this county lack the Note. The difference is that most of us in this county are not pretending that we can state a cause of action founded on a note we do not have Fla. Stat. § 673.3091 and Fla. Stat. § 71.011(5) provide the essentials to reestablish a lost instrument. Plaintiff has failed to allege most of the elements. The UCC, both in the model code and as adopted in Florida, originally required that a Plaintiff seeking to reestablish a lost note show: (a) he possessed and was entitled to enforce the note when it was lost; (b) loss was not result of transfer or seizure; and (c) he could not reasonably obtain possession. Id. at 792. The model code was amended following the decision in Dennis Joslin Co. v. Robinson Broadcasting, 977 F.Supp. 491 (D. DC 1997). Florida followed suit in the next legislative session following the decision in State Street Bank. See Fla, Stat. § 673.3091(1)(a) (2004 amendment, ch. 2004-3) The effect of the amendment was the statute we have today: Plaintiff must allege facts showing either that it was entitled to enforce when the note was lost or misplaced, or that it took from someone so entitled. This avoids what the courtcalled a “windfall” where a bank cannot obtain the evidence to prove its case. Id. at 792 Fla. Stat. § 673.3091(1) requires facts showing entitlement to enforce. Plaintiff fails to show and worse yet fails to even allege it has entitlement to enforce. Without facts showing entitlement, there is no cause of action and the Plaintiff lacks standing to proceed. Therefore, the person seeking to enforce the note must show that: Itis the holder of this note original by transfer, with all necessary rounds; (2) It had possession of the note before it was lost; (3) If it can show that title to the note runs to it, but the original is lost or destroyed, the holder must be prepared to post a bond; (4) If the person seeking to enforce is an agent, it must show its agency ‘status and that its principal is the holder of the note (and meets the above requirements). The Plaintiffs fail on all requirements and has no standing to proceed until all the requirements are met! That a “‘short and plain statement of the ultimate facts showing that the pleader is leaves us with a problem under Fla.R.Civ.P. 1.110(b)(2), which requires entitled to relief”. Here, the Plaintiff fails to set forth any facts. It offers us the theory, II 19, that it either was in possession, or it was not. We may choose whether it was entitled to enforce, or not entitled to enforce, at the time of loss. That is not ultimate fact pleading. Ultimate facts would be when the loss occurred, who was entitled to enforce at that time, and the basis of the entitlement.Why would one lose or destroy a valuable negotiable instrument? Defendants only guess would be to hide fraud Plaintiff has offered us empty conclusions. Anyone in the county can say as much as Plaintiff: he did, or did not, possess the Note when it was lost; he was, or was not, entitled to enforce; and he has no clue as to when or how it happened. Where the complaining party cannot prove the existence of the note, then there is no note. 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; and (4) that a certain balance is due and owing on the note. Since no one is able to produce the “instrument” there is no competent evidence before this Court that any party is the holder of the alleged note or the true holder in due course with proper enforcement rights under law. Therefore, the Plaintiff has no standing. Plaintiffs admit in complaint, |, line 3, that the note was lost or destroyed subsequent to Plaintiffs acquisition, The Florida Courts have made it clear that U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR MARM 2006-OA2 cannot maintain this cause of action to enforce a missing or lost promissory note and mortgage. The absence of proof that it or its assignors ever held the possession of the promissory note proves without a doubt the Plaintiffs cannot show standing, State Street Bank, Inc., and Trust Co., Trustee Holders for Bear Sterns Mortgage Securities, Inc. Mortgage Pass- Through Certificates, Series 1993-12 v. Harley Lord, 851 So. 790 (Fla. 4” DCA 2003). Pursuant to section 90.953, Florida Statutes, (2002), Florida's code of evidence, the Plaintiff in a mortgage foreclosure must present the ORIGINAL PROMISSORY NOTE as a duplicate of a note is not admissible. Otherwise, the Plaintiff must meet the requirements of section 673.3091, FloridaStatutes to pursue enforcement. W.H. Downing v. First Na'tl Bank of Lake City, 81 So.2d 486 (Fla.1955), Nat'l Loan Investors, L.P. v. Joymar Assocs., 767 So.2d 549, 551 (Fla. 3d DCA 2000). In addition to the note, another element of proof is necessary—an accounting that is signed and dated by the person responsible for the account. Claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note, the person responsible for preparing and maintaining the account general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger and the record is void of all requirements. Plaintiff fails to mentions the protection required by Fla.\Stat. § 673.3091(2). The statute requires that the Plaintiff provide protection against other claimants attempting to enforce the note. Plaintiff mentions this element; BUT FAILS TO plead ultimate facts showing how it will be done The Plaintiffs claim that they are not aware of anyone that might have in interest in the lost note, but they admit that they are not aware of how it was lost so therefore Plaintiffs aren't aware of who might be holding the said note therefore the Defendant is stil in double jeopardy until proven otherwise. Vv The Plaintiff alleges that it is the holder in due course on the subject mortgage and note yet it is the belief of the Defendants that the note was part of a larger securitization process and sold to several un-named parties and beneficial owners which can be easily found in the Plainitffs 10k SEC reports and any claims by the Plaintiff in the absence a proper chain of title have no standing and are clearly misrepresenting the actual facts.Plaintiff alleges it is the holder and owner of the Note and Mortgage. However, the attached Note and Mortgage identify the mortgagee and promisee as the original lending institution — one other than the named Plaintiff. Further, the attachments as an exhibit to the Complaint makes no reference to the named Plaintiff in the recorded chain of title/interest. Consequently, the very filings and submissions of the Plaintiff create a conflict. In every instance, then, Plaintiff has not satisfied its burden of demonstrating standing at the time of the filing of this Complaint The record does not show that, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR MARM 2006-022, is authorized as an entity to own a promissory note, It is a securitized mortgage instrument, MBS (mortgage backed secunty), not a lender, not person, not a bank! Plaintiff appears to be operating ultra vires in this action and has no standing. This jumble of words is not even evidenced by the Plaintif's filing of a copy of the so-called trust agreement, a requisite declaration of trust, copies of the so-called certificates, and in fact, this jumble of words is not even stated in any allegations in the pleading Furthermore, the court will take mandatory judicial notice of the official records of this court and in this case file, wherein no so-called trust agreements as indicated in the caption only, appear on the record, no declaration of trust has been filed for the so-called trust or trusts. There is no indication if these names represent yet other parties having an interest in this case, or if they are nothing more than unregistered fictitious names, And again, none of these parties or fictitious names is registered to engage in any business in the State of Florida and there is no evidence of their legal standing capacity to maintain any lawsuits in this statePlaintiff attaches documents to its complaint that conflict with the allegations of material facts in the complaint in which the Plaintiff claims that it ‘owns the note and mortgage’, yet never substantiates its claims to the Court or the Defendants, These allegations conflict with Plaintiffs own statements in complaint Il,2. and the mortgage and note attached to the complaint. The allegations therefore constitute a serious misrepresentation and could be construed as fraud upon the court. When exhibits are inconsistent with the Plaintiff's allegations of material fact as to whom the real party in interest is, such allegations cancel each other out. Fladel! v. Palm Beach County Canvassing Board, 772 So.2d (Fla. 2000); Greenwald v Triple D Properties, inc., 424 So, 2d 185, 187 (Fla. 4" DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 440 So. 2d 1114 (Fla 3° DCA 1983) Florida Rule of Civil Procedure 1.210(a) provides in pertinent part: “Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought.” The Plaintiff in this action meets none of those criteria. Because the exhibit attached to Plaintiffs complaint is 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.In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Your Construction Center. Inc. v. Gross, 316 So.2d 596 (FI. 4" DCA 1975), vi A pleading is supposed to set forth a party's theory of the case. James Brown v Montgomery Ward & Co., 252 So.2d 817, 819 (Fla. 1st DCA 1974). That allows the other side to prepare to meet that theary. Id. Allowing a party to change its theory right before trial is generally unfair. Id. How much more unfair is it to require a Defendant to meet a theory which is not even articulated before trial? Allowing the Plaintiff to later produce a note or copy of a note would show in fact that they did not have standing at the time of the filing of this complaint and since the Plaintiffs have admitted beyond @ reasonable doubt that the Plaintiff cannot determine it whereabouts and the note cannot be found, the Defendant would have to assume that a note and/or assignments magically brought into the record after the fact would be presumed to be a late fabrication by the Plaintiffs in order to present fraudulent documentation into the record vil The mortgage is given to MERS. A mortgagee is an essential party to a foreclosure, yet Plaintiff has failed to join the mortgages. Under Fla.R.Civ.P. 1.130(b), the attachments become part of the complaint for all purposes. Fladell at 1242. The attachments are considered more specific than ‘the paragraphs of the complaint, and where they are inconsistent the attachments govern.There, the complaint alleged that ballots failed to comply with the statutory requirements. The attached ballot, however, showed that there was substantial compliance. Id. The trial court dismissed, and on appeal was affirmed, because the attachment clearly negated the cause of action stated in the complaint. To like effect is Allen R. Greenwald v. Triple D Properties, Inc., 424 So.2d 185 (Fla. 4th DCA 1983). There, attachments showed that the mortgagee had assigned away his interest Id. at 186. After two dismissals with leave to amend, the trial court finally dismissed with prejudice. Id. The mortgagee appealed, but the decision was affimed, because the specific facts shown in the attachments govern over the allegations of the complaint. Id. at 187. Plaintiff may argue that it obtained the mortgage by assignment. It would then run squarely into Fla R.Civ.P. 1.130(a), which requires that documents upon which action may be brought be attached to the complaint. Plaintif's standing, if it exists at all, must come from a connection to the mortgage. That connection is part of the cause of action, so the document must be attached to the complaint. Proper assignments are not attached to the complaint. Fla. Stat. § 673.3091(1) requires facts showing entitlement to enforce; all we have is the legal conclusion entirely bereft of facts. How can we decide entitlement at an unknown time? Without the proper assignments, Plaintiff has failed to state a cause of action on which relief may be granted and has no standing, Let the record show, for Defendants’ appeal, that the Plaintiff's complaint failed to contain sufficient facts to establish who the Plaintiff is and its relationship to the Defendant and to the claim for forectosure of a promissory note, including the failure to show any recorded or attached assignment that would identify the owner of the subject promissory note or a proper chain of title. The complaint fails to identify who the Plaintiff is and fails to allege facts sufficient to determine 12the standing of the Plaintiff. Additionally Plaintiff makes allegations in its complaint that conflict with the documents attached thereto. VIL Let the record show, for Defendants’ appeal, that failure to notice the alleged debtor of their due process rights subjects the collector to suit for violation of the Act and any action to collect without informing the alleged debtor of their due process rights or failure to cease collection activity until timely validation subjects the collector to suit for damages under the Fair Debt Collections Practices Act and voids any legal proceedings including mortgage foreclosures. Alleged Defendants have received no notice or timely validation of this alleged debt in this complaint. The Plaintiff has no grounds to move forward on this case until Verification and Validation has been done. Defendant has sent a QWR and the Plaintiffs have failed to answer and continue to stonewall information. Conclusion Keeping our gaze within the four comers of the complaint, we see that Plaintiff has failed to state a cause of action on which it may recover. It has omitted a key element for foreclosure, and all the facts for reestablishment. While the Plaintiffs have pled that they have standing and that this Court has subject matter jurisdiction, they have submitted evidence that indicates that they do not have had standing at the time the foreclosure complaint was filed and that subject matter jurisdiction does not exist at the time this foreclosure complaint was filed Further, this Court has the responsibility to assure itself that the foreclosure Plaintiffs have standing and that subject-matter jurisdiction requirements are met at the time the complaint is filed. Even without the concerns raised by the documents the Plaintiffs have filed, there is reason to question the existence of 3standing and the jurisdictional amount. It follows that the complaint must be dismissed. Respectfully submitted sss Defendant Demands a Jury Trial Ce ate of Service | certify that a copy hereof has been furished to all parties listed below by the method indicated for each party. Done this 27" day of January, 2010 Kahane & Associates, P.A 8201 Peters Road, Ste. 3000 Plantation, FL 33324 Respectiully submitted,IN THE CIRCUIT COURT OF THE 9" JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY. FLORIDA, CIVIL DIVISION CASE# 2010-CA-647 U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR MARM 2006-OA2 Plaintift Vs. LILLIAN PEREZ, Defendant Certificate of Service \ certify that a copy hereof has been furnished to all parties listed below by the method indicated for each party. Done this 27" day of January, 2010 Kahane & Associates, P.A. 8201 Peters Road, Ste. 3000 Plantation, FL 33324 Respectfully submitted, Lillian Perez