Mortgage Servicing Fraud
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http://livinglies.files.wordpress.com/2008/07/florida-m-dismiss-jurisdiction-standing.pdf

MOTION TO DISMISS FOR LACK OF JURISDICTION

IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT, IN AND FOR ORANGE

COUNTY, FLORIDA

CASE NO. XXXXX

XXXXXX

Plaintiff,

v.

XXXXXXXX

Defendant.

_______________________________________/

DEFENDANTS MOTION TO DISMISS FOR LACK

OF SUBJECT MATTER JURISDICTION

Defendant, XXXX X XXX, moves the Court to dismiss for lack of subject matter

jurisdiction under authority of Florida Rules of Civil Procedure, rule 1.140(b)(1) and

shows:

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).

2. 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 promissory note

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.

3. 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)

4. Plaintiff, Midland Mortgage Co., alleges that it owns and holds the subject note and

mortgage pursuant to an assignment. There is no evidence or testimony supporting this.

In fact, all evidence and testimony specifically and conclusively demonstrates the

opposite.

5. Rule 1.210(a) of the Florida Rules of Civil Procedure 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 persons own name without joining

the party for whose benefit the action is brought…

Plaintiff in this action meets none of these criteria.

6. Standing requires that the party prosecuting the action have a sufficient stake in the

outcome and that the party bringing the claim be recognized in the law as being a real

party in interest entitled to bring the claim. This entitlement to prosecute a claim in

Florida courts rests exclusively in those persons granted by substantive law, the power

to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et al, 462 So. 2d 1178, (Fla. 3d

DCA 1985)

7. No Florida case holds that a separate entity can maintain suit on a note payable to

another entity unless the requirements of Rule 1.210(a) of the Florida Rules of Civil

Procedure and applicable Florida law are met. Corcoran v. Brody, 347 So. 2d 689 (Fla.

4th DCA 1977)

8. Fla.R.Civ.P. Rule 1.130(a) requires a Plaintiff to attach copies of all bonds, notes, bills

of exchange, contracts, accounts, or documents upon which action may be brought to

its complaint. Plaintiff has failed to attach any document that supports its pleadings.

9. As a result, although Plaintiff names Midland Mortgage Co. as the owner of the

promissory note, the promissory note submitted as evidence conflicts with this

allegation, making no mention of Midland. Plaintiffs own witness, Jason Lane, has

testified at his deposition and in a hearing that Midland merely services the mortgage for

an unknown entity.

10. When exhibits are inconsistent with Plaintiffs allegations of material fact as to who

the real party in interest is, such allegations cancel each other out. Fladell v. Palm

Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D

Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development

Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).

11. Plaintiff is not the real party in interest and is not shown to be authorized to bring this

action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985) [It is

axiomatic that a suit cannot be prosecuted to foreclose a mortgage which secures the

payment of a promissory note, unless the Plaintiff actually holds the original note, citing

Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla. 1955)]; Your

Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975), See also 37

Fla. Jur. Mortgages and Deeds of Trust 240 (One who does not have the ownership,

possession, or the right to possession of the mortgage and the obligation secured by it,

may not foreclose the mortgage)

12. Plaintiffs pleadings fail to contain sufficient facts to establish who the actual Plaintiff

is and its relationship to Defendant and to the claim for foreclosure of the subject

promissory note. The record also fails to sufficiently identify who Plaintiff is and fails to

allege facts sufficient to determine the standing of Plaintiff.

13. The record does not show that Midland Mortgage Co. has standing to maintain an

action in the State of Florida. It is not registered to do business in the state. In order for

a Court to have in personam jurisdiction over the parties, the record, if challenged, must

show that the challenged party has sufficient minimum contacts with the forum state to

bestow in personam jurisdiction on the Court. Florida Rules of Civil Procedure, rule

1.120(A).

14. The record does not show that Midland Mortgage Co. is authorized as an entity to

own a promissory note. It claims to be a mortgage servicer not a lender. Plaintiff

appears to be operating ultra vires in this action.

15. Neither Midland Mortgage Co. nor its attorneys, Richard McIver and Kass, Shuler,

Solomon, Spector, Foyle & Singer, P.A., have validated the alleged debt as required by

the Fair Debt Collection Practices Act. They refuse to identify the owner of the alleged

debt and refuse to provide an accurate accounting of the alleged debt. Such lack of

validation prohibits these debt collectors from taking any action to collect on the alleged

debt.

16. Plaintiff has refused to apply many thousands of dollars in timely mortgage

payments from Defendant. Plaintiff has accepted other amounts, particularly those paid

through Defendants bankruptcy and insurance proceeds, yet has continued its attempts

to foreclose without proper consideration for those payments. There is no evidence that

Plaintiff has forwarded any payments to the actual owner of the note, who the evidence

suggests may have been defrauded by Plaintiff.

17. Plaintiff has added sums to the amount allegedly owed that are not authorized by

any agreement or court order. Furthermore its attorney has written to Defendant saying

that he will seek additional attorneys fees even after the foreclosure is concluded.

18. Plaintiff has repeatedly filed ex parte motions to reschedule foreclosure sale

depriving Defendant of an opportunity for hearing. Several times, these motions were

not even served on Defendant and Defendant learned of their existence only upon

receiving a Court order for an imminent foreclosure sale. These affronts to due process

impose jurisdictional failings on the Court requiring the actions dismissal with prejudice.

19. The record does not verify that Plaintiff has suffered any damages other than those

directly attributable to their own deliberate and ongoing frauds. Claim of damages, to be

admissible as evidence, must incorporate records such as a general ledger and

accounting of an alleged unpaid promissory note and 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.

Plaintiff has adamantly refused to provide any accounting to Defendant.

20. This action has been used as a vehicle for the so-called Plaintiff and its attorneys to

attack and harass Defendant unmercifully for almost six years in an attempt to silence

his substantiated claims of their crimes and misdeeds. The Plaintiffs action in refusing

to allow insurance proceeds to be used for repairs and twice breaking into the property

have prevented Defendant from being able to use the property in any way for more than

four years.

21. The record is replete with Plaintiff and its attorneys committing numerous frauds

upon the Court. The evidence and the testimony of Defendant and his witness

specifying these frauds remain entirely unrefuted. Based on the record, the Court

should conclude that this action amounts to nothing less than criminal extortion and

attempted grand theft by Plaintiff against Defendant. The Court cannot be in a position

of enabling Plaintiff and its attorneys to commit felony crimes.

WHEREFORE, Defendant requests that this action be dismissed for lack of subject

matter jurisdiction.

Respectfully submitted this 19th day of May, 2008.

______________________________

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of the foregoing has been delivered

by e-mail to X

______________________________

Quote 0 0
Ed
What happened in the case?
Quote 0 0
Pro se

Ed wrote:
What happened in the case?


I don't know, I found it and thought it looked like a good motion for lacks subject matter jurisdiction.
Quote 0 0
Florida Appeals Court still has not ruled on appeal. It's been awhile!
Quote 0 0

Looks well researched and written. Keep us posted on the outcome.

Quote 0 0
Ed
Nye Lavalle wrote:
Florida Appeals Court still has not ruled on appeal. It's been awhile!


Who sued who and who appealed?
Quote 0 0
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