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Filing # 23798758 E-Filed 02/16/2015 01:27:22 PM
IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT
IN AND FOR JACKSON COUNTY, FLORIDA
DEUTSCH BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR
REGISTERED HOLDERS OF LONG BEACH MORTGAGE LOAN TRUST 2006-10, ASSET-
BACKED CERTIFICATES, SERIES 2006-10,
PLAINTIFF,
CASE NO.: 14-228-CA
VS. CIVIL DIVISION — FORECLOSURE
ANTHONY SMITH, ET AL.,
DEFENDANT.
/
DEFENDANTS’ MOTION TO DISMISS COMPLAINT AND RELEASE LIS PENDENS
COMES NOW, Defendants, Anthony Smith and Gwendolyn Smith, by and through their
undersigned counsel, move to dismiss Plaintiff's Verified Mortgage Foreclosure Complaint
(hereinafter “Complaint”) and in support thereof states the following:
PLAINTIFF FAILED TO ALLEGE HOW IT HAS STANDING
The plaintiff has failed to allege how it has standing to enforce the note and mortgage on
which its claim is based. The copy of the note attached to the complaint lists Solstice Capital
Group, Inc., a California Corporation, as the lender. Further, the complaint does not show how
the note was transferred to the plaintiff, whether through “a valid assignment, proof of purchase
of the debt, or evidence of an effective transfer.” BAC Funding v. Jean Jacques, 28 So.3d 936
(Fla. 2d DCA 2010). “Where complaint allegations are contradicted by exhibits attached to a
complaint, the plain meaning of the exhibits control(s) and may be the basis for a motion to
dismiss.” BAC Funding v. Jean Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) citing Hunt Ridge at
Tall Pines v. Hall, 766 So.2d 399(Fla. 2d DCA 2000). (Mortgage foreclosure case where
allegations of unverified complaint conflicted with mortgage and note showing lender was entity
Electronically Filed Jackson Case # 14000228C98&x(9" 04/16/2015 12:27:22 PM
other than plaintiff). The copy of the mortgage attached to the complaint also lists Solstice
Capital Group, Inc., a California Corporation as the Lender. Nothing in the complaint or its
attachments shows a proper assignment of the mortgage from the party listed as lender or its
nominee to the Plaintiff.
The plaintiff must plead those ultimate facts establishing its standing to enforce
the agreement, especially since no assignment of the mortgage was attached to the Complaint
although Plaintiff alleged that an assignment of mortgage was recorded. See_Progressive
Express Insurance Co. v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. "4 DCA
2005),_Jeff Ray Corp, v. Jacobson, 566 So.2d 855 (Fla.** DCA 1990) and_WM_ Specialty
Mortgage LLC v. Salomon, 874 So.2d 680 (Fla. 4 DCA 2004).
PLAINTIFF DOES NOT ALLEGE TO BE THE OWNER OF THE SUBJECT NOTE AND
MORTGAGE
In Florida, in order for the Plaintiff to invoke the enforcement powers of § 673.3091, and
prosecute a residential mortgage foreclosure, it must be by the owner and holder of the mortgage
and note. tion nter, In 316 So.3d 596 (Fla. 4 DCA 1975).
Furthermore, Florida Rule of Civil Procedure 1.944, lays out a form in which to follow in
foreclosure action complaints in Florida. This form includes a statement in which Plaintiff is to
allege they are both the owner and holder of the subject Note and Mortgage.
Plaintiff has not alleged to be the owner of the Note and Mortgage. In paragraph 5 of
Plaintiff’s Complaint, Plaintiff alleges it “...is in physical possession of the original Note...and
by virtue of being in possession...is the holder”, an essential allegation under Florida Rule of
Civil Procedure 1.944. The allegation in Paragraph 5 by Plaintiff, is not supported anywhere in
Page 2 of 7
the complaint. Plaintiff failed to attach any proof or evidence showing how it gained the
authority to bring this action.
In fact, the Mortgage and Note clearly identifies Solstice Capital Group, Inc., a California
Corporation as the lender and therefore, the holder of the Mortgage. Further, Plaintiff never
alleges that the Note and Mortgage were properly assigned by Solstice Capital Group, Inc., a
California Corporation to it.
As such, under Florida Law, Plaintiff does not have standing and cannot prosecute the
subject foreclosure cause of action.
PLAINTIFF FAILED TO FILE A NON RESIDENT’S COST BOND
Plaintiff is a foreign corporation and has failed to file a cost bond as required by §57.011
Florida Statutes within 30 days after commencing this action and move to dismiss the complaint.
Sound City Inc. v. Kenwood Electronics, Inc., 330 So.2d 163 (Fla. 1* DCA 1976).
FL. Stat §57.011 states:
Costs; security by nonresidents.—When a nonresident plaintiff begins an action
or when a plaintiff after beginning an action removes himself or herself or his or
her effects from the state, he or she shall file a bond with surety to be approved by
the clerk of $100, conditioned to pay all costs which may be adjudged against him
or her in said action in the court in which the action is brought. On failure to file
such bond within 30 days after such commencement or such removal, the
defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may
file such bond), move to dismiss the action or may hold the attorney bringing or
prosecuting the action liable for said costs and if they are adjudged against
plaintiff, an execution shall issue against said attorney.
In this case, Plaintiff is a foreign entity and has yet to file their required Cost Bond with
the Clerk of the Court, according to the Court docket. Counsel for the Plaintiff and this Court
Page 3 of 7
should consider this paragraph as the statutorily mandated 20-day notice. If Plaintiff files the
required bond with the Clerk of the Court within thirty (30) days after filing of this Motion to
Dismiss, the Court may consider this ground for dismissal withdrawn.
To illustrate, The Fourth Judicial Circuit Court Granted a Defendant’s Motion to Dismiss
a pending foreclosure case for Plaintiff’s failing to post the statutorily required non-resident cost
bond and stated, “The Florida Statutes require that a foreign corporation instituting legal action
in the State of Florida post a bond with the clerk of court prior to moving forward with the legal
action." Citigroup Global Markets v. Bumbu, 16 Fla. L. Weekly Supp. 737a (Fourth Judicial
Circuit, Clay County, June 2, 2009.)
PLAINTIFF FAILED TO PROPERLY VERIFY COMPLAINT
On February 10, 2010, Fla. R. Civ. Pro. 1.110(b), Claims for Relief, was amended to add
the following language at the end of 1.110(b):
When filing an action for foreclosure of a mortgage on residential real property
the complaint shall be verified. When verification of a document is required, the
document filed shall include an oath, affirmation, or the following statement:
“Under penalty of perjury, I declare that I have read the foregoing, and the facts
alleged therein are true and correct to the best of my knowledge and belief.
In the Florida Supreme Court’s memorandum entitled In re AMENDMENTS TO
THE FLORIDA RULES OF CIVIL PROCEDURE, 44 So.3d 555 (Fla. 2010) (issued February
11, 2010, modified June 3, 2010), the Court states, in pertinent part, as follows:
... rule 1.110(b) is amended to require verification of mortgage foreclosure
complaints involving residential real property. The primary purposes of this
amendment are (1) to provide incentive for the plaintiff to appropriately
investigate and verify its ownership of the note or right to enforce the note and
ensure that the allegations in the complaint are accurate; (2) to conserve judicial
Page 4 of 7
resources that are currently being wasted on inappropriately pleaded “lost note”
counts and inconsistent allegations; (3) to prevent the wasting of judicial
resources and harm to defendants resulting from suits brought by plaintiffs not
entitled to enforce the note; and (4) to give trial courts greater authority to
sanction plaintiffs who make false allegations.
The verification requirement demands that the Plaintiff itself, and not a representative from a
non-party or "agent" of the Plaintiff, verify the facts alleged in the complaint. As Judge Holcomb
states in his Order Granting Defendants’ Motion to Dismiss!:
Henry Trawick makes clear that "verification" means that the verifying party
(emphasis in original) attests that the facts alleged in the complaint are true.
Trawick's Florida Practice and Procedure Sec. 6:14 (Verification).Beverette v.
Graham, 131 So. 826, 827 (Fla. 1931); Burns v. Burns, 174 So.2nd 432, 434 (Fla.
2nd DCA 1965). Rule 1.110(b) does not specifically provide for or allow
verification to [be] made by a non-party such as a loan servicer or agent of the
Plaintiff.
None of the purposes outlined by the Supreme Court would be satisfied if the plaintiffs
complaint is permitted to stand as written. The verification is improper because the person
signing the verification is Steven Gutierrez, who identifies himself as “Document Control
Officer” for Plaintiff. However, there is not a power of attorney or any other document attached
to the complaint showing how the person verifying the complaint is properly authorized to do
so by the Plaintiff. This is neither consistent with the letter or spirit of the new rule of civil
procedure but also not in compliance with the law. See Trawick, Fla. Prac. & Procedure,
§6.14 Verification, and see, Bernadette v. Graham, 132 So.826 (Fla. 1931).
'PNC Bank National Association v. Kathleen Peckham, et al, pending in the Circuit Court of the Eighteenth Judicial
Circuit in and for Brevard County, Florida, Case No. 05-2010-CA-33741 (Jan. 14, 2011)
Page 5 of 7
DEFENDANT SATISFIED THE OUTSTANDING LOAN BALANCE
In its Complaint, Plaintiff alleges that Defendants have defaulted on the alleged subject
note and mortgage attached to the Complaint. However, Defendants have issued payment of
the outstanding loan balance in full to the lender. Upon the application of the funds received
from the Defendants to the lender to the subject loan, the issues raised in Plaintiff's Complaint
are moot and the undersigned moves for the immediate dismissal of this action.
RELEASE OF LIS PENDENS
Pursuant to Section 48.23, Fla. Stat. (2010) and Rule 1.420(f), Fla. R. Civ. P., Plaintiffs
Notice of Lis Pendens must be released or dissolved upon dismissal of the Complaint. Rule
1.420(f) states as follows:
Effect on Lis Pendens. If a notice of lispendens has been filed in connection with a claim
for affirmative relief that is dismissed under this rule, the notice of lispendens connected
with the dismissed claim is automatically dissolved at the same time. The notice,
stipulation, or order shall be recorded.
WHEREFORE, Defendants respectfully requests that this Honorable Court enter an order (i)
dismissing Plaintiffs Complaint; (ii) discharging, vacating, releasing and dissolving the Notice
of Lis Pendens; and (iii) for all other and further remedies that this Court deems just and
appropriate.
FLORIDA FORECLOSURE LAW GROUP
3921 Alton Road, #406
Miami Beach, FL 33140
(954) 790-6785 Office
Primary Service E-Mail
service@floridaforeclosurelg.com
Page 6 of 7
By: /s/ Scott L. Podvin
0 Scott L. Podvin/FBN: 5053
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that on this 16th day of February, 2014, that a true and correct
copy of the foregoing has been delivered via Email to:
ervicecopies@qgpwblaw.com; sfgbocaservice@logs.com
FLORIDA FORECLOSURE LAW GROUP
3921 Alton Road, #406
Miami Beach, FL 33140
(954) 790-6785 Office
Primary Service E-Mail
service@floridaforeclosurelg.com
By /s/ Scott L. Podvin
0 Scott L. Podvin/FBN: 5053
Page 7 of 7
Preview
Filing # 23798758 E-Filed 02/16/2015 01:27:22 PM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR JACKSON COUNTY, FLORIDA DEUTSCH BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR REGISTERED HOLDERS OF LONG BEACH MORTGAGE LOAN TRUST 2006-10, ASSET- BACKED CERTIFICATES, SERIES 2006-10, PLAINTIFF, CASE NO.: 14-228-CA VS. CIVIL DIVISION — FORECLOSURE ANTHONY SMITH, ET AL., DEFENDANT. / DEFENDANTS’ MOTION TO DISMISS COMPLAINT AND RELEASE LIS PENDENS COMES NOW, Defendants, Anthony Smith and Gwendolyn Smith, by and through their undersigned counsel, move to dismiss Plaintiff's Verified Mortgage Foreclosure Complaint (hereinafter “Complaint”) and in support thereof states the following: PLAINTIFF FAILED TO ALLEGE HOW IT HAS STANDING The plaintiff has failed to allege how it has standing to enforce the note and mortgage on which its claim is based. The copy of the note attached to the complaint lists Solstice Capital Group, Inc., a California Corporation, as the lender. Further, the complaint does not show how the note was transferred to the plaintiff, whether through “a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.” BAC Funding v. Jean Jacques, 28 So.3d 936 (Fla. 2d DCA 2010). “Where complaint allegations are contradicted by exhibits attached to a complaint, the plain meaning of the exhibits control(s) and may be the basis for a motion to dismiss.” BAC Funding v. Jean Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) citing Hunt Ridge at Tall Pines v. Hall, 766 So.2d 399(Fla. 2d DCA 2000). (Mortgage foreclosure case where allegations of unverified complaint conflicted with mortgage and note showing lender was entity Electronically Filed Jackson Case # 14000228C98&x(9" 04/16/2015 12:27:22 PM other than plaintiff). The copy of the mortgage attached to the complaint also lists Solstice Capital Group, Inc., a California Corporation as the Lender. Nothing in the complaint or its attachments shows a proper assignment of the mortgage from the party listed as lender or its nominee to the Plaintiff. The plaintiff must plead those ultimate facts establishing its standing to enforce the agreement, especially since no assignment of the mortgage was attached to the Complaint although Plaintiff alleged that an assignment of mortgage was recorded. See_Progressive Express Insurance Co. v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. "4 DCA 2005),_Jeff Ray Corp, v. Jacobson, 566 So.2d 855 (Fla.** DCA 1990) and_WM_ Specialty Mortgage LLC v. Salomon, 874 So.2d 680 (Fla. 4 DCA 2004). PLAINTIFF DOES NOT ALLEGE TO BE THE OWNER OF THE SUBJECT NOTE AND MORTGAGE In Florida, in order for the Plaintiff to invoke the enforcement powers of § 673.3091, and prosecute a residential mortgage foreclosure, it must be by the owner and holder of the mortgage and note. tion nter, In 316 So.3d 596 (Fla. 4 DCA 1975). Furthermore, Florida Rule of Civil Procedure 1.944, lays out a form in which to follow in foreclosure action complaints in Florida. This form includes a statement in which Plaintiff is to allege they are both the owner and holder of the subject Note and Mortgage. Plaintiff has not alleged to be the owner of the Note and Mortgage. In paragraph 5 of Plaintiff’s Complaint, Plaintiff alleges it “...is in physical possession of the original Note...and by virtue of being in possession...is the holder”, an essential allegation under Florida Rule of Civil Procedure 1.944. The allegation in Paragraph 5 by Plaintiff, is not supported anywhere in Page 2 of 7 the complaint. Plaintiff failed to attach any proof or evidence showing how it gained the authority to bring this action. In fact, the Mortgage and Note clearly identifies Solstice Capital Group, Inc., a California Corporation as the lender and therefore, the holder of the Mortgage. Further, Plaintiff never alleges that the Note and Mortgage were properly assigned by Solstice Capital Group, Inc., a California Corporation to it. As such, under Florida Law, Plaintiff does not have standing and cannot prosecute the subject foreclosure cause of action. PLAINTIFF FAILED TO FILE A NON RESIDENT’S COST BOND Plaintiff is a foreign corporation and has failed to file a cost bond as required by §57.011 Florida Statutes within 30 days after commencing this action and move to dismiss the complaint. Sound City Inc. v. Kenwood Electronics, Inc., 330 So.2d 163 (Fla. 1* DCA 1976). FL. Stat §57.011 states: Costs; security by nonresidents.—When a nonresident plaintiff begins an action or when a plaintiff after beginning an action removes himself or herself or his or her effects from the state, he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney. In this case, Plaintiff is a foreign entity and has yet to file their required Cost Bond with the Clerk of the Court, according to the Court docket. Counsel for the Plaintiff and this Court Page 3 of 7 should consider this paragraph as the statutorily mandated 20-day notice. If Plaintiff files the required bond with the Clerk of the Court within thirty (30) days after filing of this Motion to Dismiss, the Court may consider this ground for dismissal withdrawn. To illustrate, The Fourth Judicial Circuit Court Granted a Defendant’s Motion to Dismiss a pending foreclosure case for Plaintiff’s failing to post the statutorily required non-resident cost bond and stated, “The Florida Statutes require that a foreign corporation instituting legal action in the State of Florida post a bond with the clerk of court prior to moving forward with the legal action." Citigroup Global Markets v. Bumbu, 16 Fla. L. Weekly Supp. 737a (Fourth Judicial Circuit, Clay County, June 2, 2009.) PLAINTIFF FAILED TO PROPERLY VERIFY COMPLAINT On February 10, 2010, Fla. R. Civ. Pro. 1.110(b), Claims for Relief, was amended to add the following language at the end of 1.110(b): When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. In the Florida Supreme Court’s memorandum entitled In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE, 44 So.3d 555 (Fla. 2010) (issued February 11, 2010, modified June 3, 2010), the Court states, in pertinent part, as follows: ... rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial Page 4 of 7 resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. The verification requirement demands that the Plaintiff itself, and not a representative from a non-party or "agent" of the Plaintiff, verify the facts alleged in the complaint. As Judge Holcomb states in his Order Granting Defendants’ Motion to Dismiss!: Henry Trawick makes clear that "verification" means that the verifying party (emphasis in original) attests that the facts alleged in the complaint are true. Trawick's Florida Practice and Procedure Sec. 6:14 (Verification).Beverette v. Graham, 131 So. 826, 827 (Fla. 1931); Burns v. Burns, 174 So.2nd 432, 434 (Fla. 2nd DCA 1965). Rule 1.110(b) does not specifically provide for or allow verification to [be] made by a non-party such as a loan servicer or agent of the Plaintiff. None of the purposes outlined by the Supreme Court would be satisfied if the plaintiffs complaint is permitted to stand as written. The verification is improper because the person signing the verification is Steven Gutierrez, who identifies himself as “Document Control Officer” for Plaintiff. However, there is not a power of attorney or any other document attached to the complaint showing how the person verifying the complaint is properly authorized to do so by the Plaintiff. This is neither consistent with the letter or spirit of the new rule of civil procedure but also not in compliance with the law. See Trawick, Fla. Prac. & Procedure, §6.14 Verification, and see, Bernadette v. Graham, 132 So.826 (Fla. 1931). 'PNC Bank National Association v. Kathleen Peckham, et al, pending in the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida, Case No. 05-2010-CA-33741 (Jan. 14, 2011) Page 5 of 7 DEFENDANT SATISFIED THE OUTSTANDING LOAN BALANCE In its Complaint, Plaintiff alleges that Defendants have defaulted on the alleged subject note and mortgage attached to the Complaint. However, Defendants have issued payment of the outstanding loan balance in full to the lender. Upon the application of the funds received from the Defendants to the lender to the subject loan, the issues raised in Plaintiff's Complaint are moot and the undersigned moves for the immediate dismissal of this action. RELEASE OF LIS PENDENS Pursuant to Section 48.23, Fla. Stat. (2010) and Rule 1.420(f), Fla. R. Civ. P., Plaintiffs Notice of Lis Pendens must be released or dissolved upon dismissal of the Complaint. Rule 1.420(f) states as follows: Effect on Lis Pendens. If a notice of lispendens has been filed in connection with a claim for affirmative relief that is dismissed under this rule, the notice of lispendens connected with the dismissed claim is automatically dissolved at the same time. The notice, stipulation, or order shall be recorded. WHEREFORE, Defendants respectfully requests that this Honorable Court enter an order (i) dismissing Plaintiffs Complaint; (ii) discharging, vacating, releasing and dissolving the Notice of Lis Pendens; and (iii) for all other and further remedies that this Court deems just and appropriate. FLORIDA FORECLOSURE LAW GROUP 3921 Alton Road, #406 Miami Beach, FL 33140 (954) 790-6785 Office Primary Service E-Mail service@floridaforeclosurelg.com Page 6 of 7 By: /s/ Scott L. Podvin 0 Scott L. Podvin/FBN: 5053 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on this 16th day of February, 2014, that a true and correct copy of the foregoing has been delivered via Email to: ervicecopies@qgpwblaw.com; sfgbocaservice@logs.com FLORIDA FORECLOSURE LAW GROUP 3921 Alton Road, #406 Miami Beach, FL 33140 (954) 790-6785 Office Primary Service E-Mail service@floridaforeclosurelg.com By /s/ Scott L. Podvin 0 Scott L. Podvin/FBN: 5053 Page 7 of 7