Here is a sample of Motion to Dismiss. Tell your attorney you want a similar motion with NJ case law. If he does not have case law, go to the court house and ask the clerk to see some foreclosure cases. Look for the motion to Dismiss ,note the case law and give the info to your lawyer. If you do nothing, you may end up with a Default Judgment then Bank can sell your house on court step auction. Check my threat in this forum "Tactical Consideration in fighting Foreclosure" and http://www.foreclosureprose.com for more info. Buy time and save money to hire a good lawyer. It is very difficult to win as Pro-Se.
IN THE CIRCUIT COURT OF THE XXXX JUDICIAL CIRCUIT
IN AND FOR FLORIDA
US BANK AS TRUSTEE
DEFENDANTS MOTION TO DISMISS COMPLAINT WITH PREJUDICE
Comes now the Defendants John and Arlen Smith moves the Court to dismiss Plaintiff’s complaint, pursuant to Rules 1.130, 1.210(a) and 1.140(b)(6), Florida Civil
Procedures , and in support thereof states as follows:
1. THE SMITH’s home, encumbered by a mortgage and promissory note made to and held by FIRST MERIDIAN MORTGAGE, is the property at issue in this foreclosure action.
2. The Plaintiff, US BANK as Trustee. and not FIRST MERIDIAN MORTGAGE filed this foreclosure action allegedly as owner and holder of the note.
3. US Bank as Trustee also brings a count for reestablishment of promissory note pursuant to section 673.3091, Florida Statutes.
In the Definitions of the subject mortgage, Paragraph (B) defines:
a. “Borrower” as JOHN SMITH and ARLENE SMITH Husband and Wife, and
b. “Lender” as FIRST MERIDIAN MORTGAGE
Plaintiff Fails to establish Cause of Action- Plaintiff Fail to State a Claim
Upon Which Relief May Be Granted; Plaintiff Lacks of Standing to Sue;
Lack of Subject Matter Jurisdiction
4. Plaintiff lacks of Subject Matter Jurisdiction. The Plaintiff’s fails to attach any
documents to identify who or what US bank as Trustee . is; nor can
Defendant determine from the Plaintiff’s complaint upon what facts the Plaintiff is claiming to be the real party in interest with standing to pursue this foreclosure action on a promissory note which is required by the Florida Rules of Civil Procedures1.140
(b)1. Plaintiff did not attach the Notes proving Plaintiff’s ownership of any debt against the Defendant. Therefore This Court lacks of subject matter jurisdiction to proceed. Subject matter jurisdiction has never been established on the record. The jurisdictional question can be raised at anytime and can never be time barred . Declaire v. Yohanan, 453 So. 2d 375 (Fla 1984). The Court should dismiss this Complaint pursuant to Rules 1.210(a) and 1.140(7) of the Florida Rules
and Procedure because no promissory note attached to the Complaint evidencing that
Plaintiff is the true owner of the note or the existence of the promissory note . Therefore Plaintiff is not the real party in interest , the debt does not exist, the Complaint should be dismiss due to Plaintiff’s Lacks of Subject Matter Jurisdiction
5. Lacks of Standing to Sue .Plaintiff’s complaint fails contain any sufficient facts to establish who the Plaintiff is or the Plaintiff’s relationship to the Defendant, , or the Plaintiff’s relationship or connection to the claim for foreclosure of a promissory note, including the failure to identify the date of the alleged assignment of the mortgage and note to the plaintiff. The Plaintiff alleges in paragraph 4 of its complaint it is “the owner and holder of the subject note and mortgage”. These allegations are directly conflicting with the mortgage and other documents attached to the complaint thereby rendering the complaint insufficient to identify who the Plaintiff is or what fact establish the standing of Plaintiff to file and pursue this foreclosure.
6. Plaintiff filed defective pleadings with exhibits that were legally insufficient to
support the complaints, to show standing or to invoke the subject matter jurisdiction of
the court. Florida Rules of Civil Procedure rule 1.130(a) required that standing must be established by pleadings and exhibits attached thereto at the date of filing the action, and requires the Plaintiff to attach to its Complaints copies of all bonds, notes, bills of exchange contracts, accounts , or documents upon which action may be brought. Plaintiff failed to attached sufficient documentation to supports its pleading in this case.
7. No original documentation, negotiable instruments, notes or mortgage, pursuant to Florida Rules of Court evidence code 90.953(1)(2), and (3) was placed in the case file at the time the complaint was filed. Duplicate of negotiable instruments are not admissible.
90.953. Admissibility of duplicates – A duplicate is admissible to the same extent
as original , unless:
(1) The document or writing is a negotiable instrument as defined in s. 673.1041,
a security as defined in s. 678.1021, or any other writing that evidences a right to
the payment of the money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
(2) A genuine question is raised about the authenticity of the original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.
8. Plaintiff fails to produce the Original of the Note or any other copy to support of
its claims to be the owner and holder of the Note. This fact alone deprives plaintiff of
standing pursuant to Florida Rules of Civil Procedures rules 1.113(a) and 1.210(a). Standing must be established by the initial pleading and may not rely on subsequent filing as its basis.
9. No document was attached or filed with the Complaint showing that the Plaintiff meets any of the criteria of Florida Rules of Civil Procedure rule 1.210(a) which would authorize the Plaintiff to pursue this action as a nominee or stand-in or for the true owner(s) and/or holder(s) of the note. Plaintiff is therefore barred from doing so.
10. In this case, the Plaintiff’s allegation of material facts claiming it is the owner of the subject note are inconsistent with the documents attached to the Complaint. When exihibits are inconsistent with the Plaintiff’s allegations of material facts as to real party in interest, 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 (Fla 4.th DCA 1983), Costa Bella Development Corp.vs Costa Development Corp, 441 So. 2d 114
(Fla. 3rd DCA 1993).
11. Failure to state a Cause of Action. Failure to state a sufficient claim.
Because Plaintiff cannot prove that it now own the note, and failed to establish in
its complaint that it owned or held the note and mortgage at the commencement of this
action. Plaintiff failed to state a sufficient claim and failed to state a cause of Action..
Plaintiff failed to establish itself as the real party in interest . This fact renders the complaint objectionable. Greenwald v. Triple D. Properties, Inc. 424 So. 2d 185, 187 (Fla. 4th DCA 1983). Plaintiff fails to identify what powers it has to foreclose on the note and mortgages
In Florida, an agent does not have a cause of action against a party allegedly breaching a contract with its principal. The principal must authorize the agent to bring the suit. Media
Placement v. Combined Broad. Inc 638 So. 2d 105-106, (Fla 3rd DCA 1994).
12. In Florida, the prosecution of a residential mortgage foreclosure must be by the owner and holder of the mortgage and the note. Your Construction Center Inc v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975). The Plaintiff fails to establish its possession or ownership of the Mortgage and Note, and; therefore cannot ensure that the Defendants, John and Arlen Smith , are adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Therefore, Plaintiff is unable to meet the requirement of Florida Statute Section 673.3091.
Re-Establishment of Note
Defendant also moves to Dismiss Plaintiff’s Count II Re-Establishment of Note
13. Plaintiff fails to bring forward the “Original Promissory Note:, the subject matter of this action, and having failed to meet requirement of Florida Statute 71.001 Re-establishment of paper, records and files. DLJ Mortgage Capital, Inc v. D. Scott Heinman Trustee . Case no. 07CA 015829-1 In Admiralty DCA 13 Hillsborough County Fla. Nov 2008. Judge Franz Gomez denies the Plaintiff Motion to re-establish the Promissory Note. The Statute requires the Plaintiff to attach a substantial copy of that lost or destroyed; the Plaintiff has to name in the Complaint all parties interested for or against such the re-establishment. In this case, the Plaintiff has to name all note holders, assignees, assignor of the lost Promissory note and Plaintiff failed to prove that it is the owner of the lost note. The Plaintiff, US Bank as Trustee, is not the owner name on the note.
14. Since US BANK as Trustee , fails to allege the date it took assignment of the note and mortgage or the date the note and mortgage were lost or destroyed, it is not possible to determine if in fact Plaintiff was entitled to enforce the note and mortgage when they were lost. Though the right to enforce a promissory note and mortgage once in the possession of an assignor can be assigned though the note and mortgage be lost (National Loan Invest. v. Joymar Ass., 767 So.2d 549 (Fla. 3rd DCA 2000)), if another party further up the assignment chain lost the note and mortgage, Plaintiff can not show it is entitled to foreclose unless it specifically alleges facts that establish that it or its assignor had the right to enforce the note though it was lost prior to the assignment. State Street Bank v. Lord, 851 So.2d 790 (Fla. 4 Dist. 2003).
15. This is a pleading deficiency because Plaintiff in fact admits in paragraph
19 of the complaint that “Plaintiff neither has any knowledge as to when the subject
Promissory Note was lost or destroyed, nor as to the manner of loss or destruction.” Further, Plaintiff loosely alleges in paragraph 17 that “Plaintiff or its predecessor(s) was in possession of the Promissory Note and was entitled to enforce it when the loss of possession occurred.”
16. It is insufficient to merely allege that the note is lost and repeat verbatim the separate clauses of section 673.3091, Florida Statutes. Rather, pursuant to section 673.3091, Florida Statutes an owner of a lost, stolen, or destroyed instrument must allege facts establishing he is prevented from producing the original instrument. Gutierrez v. Bermudez, 540 So.2d 888 (Fla. 5th DCA 1989); see also Lawyers Title Ins. v. Novastar Mortg., 862 So.2d 793 (Fla. 4th DCA 2003); Dunn v. Willis, 599 So.2d 271 (Fla. 5th DCA 1992); Barber v. Ehrich, 394 So.2d 220 (Fla. 5th DCA 1981).
17. Plaintiff, for example, fails to allege when Plaintiff first came into possession of the note and mortgage, where same were stored, the date as of which Plaintiff realized it was no longer in possession of the note and mortgage, and the steps Plaintiff took as a result.
18. The failure to state a cause of action is a pleading deficiency not curable even in the instance of a default judgment. Hogan v. Garceau, 880 So.2d 823 (Fla. 5th DCA 2004).
19. Section 22 of the Subject Mortgage provides the manner in which the lender must provide notice of the default and acceleration of the loan documents.
20. The law is well settled in Florida (and the mortgage contains a provision) requiring that the Lender must give the “Borrowers” notice of the loan default and an opportunity to cure the default before the loan can be accelerated. See, Barnes v. Resolution Trust Corp., 664 So.2d 1171 (Fla 4th DCA 1995); New England Mutual Life Ins. Co. v. Luxury Home Builders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975); and Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970).
21. Plaintiff. fails to give proper written notice of default and acceleration as required by the mortgage and law. Defendants did not receive Notice of Default and Acceleration before the lawsuit was filed.
22. Defendants, John and Arlen Smith, reserve the right to amend and/or additional bases for their Motion to Dismiss subject to further discovery.
WHEREFORE, Defendants, requests this Court dismiss the Plaintiff’s
Complaint with prejudice for (1) Lacks of subject matter jurisdiction, (2) Failure to state a sufficient Claim, (3) Lacks of Standing, (4) Failure to meet requirement of Florida Statute 71.001 for re-establishment of notes, (5) Failure to provide proper written Notice of Default and Acceleration as required by the mortgage and law.