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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR SEMINOLE COUNTY, FLORIDA

FIFTH THIRD MORTGAGE COMPANY, PLAINTIFF, v. Jane Doe, et. al., DEFENDANTS. ___________________________/

CASE No. 11-CA-XXX

DEFENDANT JANE DOES MOTION TO DISMISS Comes now, Defendant, Jane Doe (hereinafter, defendant) and pursuant to Rule 2.515 of the Florida Rules of Judicial Administration and Rule 1.140 of the Florida Rules of Civil Procedure, hereby moves the Court to Order the complaint dismissed for: A. B. C. D. lack of proper verification. failure to truthfully certify Form A pursuant to Twentieth Judicial Circuit Administrative Order AOSC09-54. failure to attach required documents to the complaint. lack of compliance with federal pre-suit default prevention procedures.

Or, alternatively, the defendant moves for a more definite statement that: A. B. C. D. Fifth Third Bank is the servicer for Fifth Third Mortgage Company. Fifth Third Banks branch offices were farther than 200 miles from the mortgaged property. The defendant does not reside in the subject home. The subject home is not the homesteaded property of the defendant.

As grounds therefore, Defendants offers the following: I STANDARD ON MOTION TO DISMISS


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1.

Florida Rules of Civil Procedure section 1.140(b) provides in part:

How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. 2. The function of a motion to dismiss a complaint is to raise as a question of law the suffi-

ciency of the facts alleged to state a cause of action. Connolly v. Sebco, Inc., 89 So. 2d 482 (Fla. 1956). For the purpose of a motion to dismiss, the Court is required to accept as true all wellpleaded allegations of the complaint. Brown v. First Federal Savings and Loan, 160 So.2d 556 (Fla. 1st DCA 1964). However, the Court is not required to accept as true allegations that are inconsistent with law. Brown, 160 So. 2d at 563. (Semantics cannot be employed for the purpose of refuting facts clearly shown to exist or used to create a fictional relationship, one that otherwise would have no existence in the law.) The pleading must be construed against the pleader in determining whether the necessary allegations have been stated. Matthews v. Matthews, 122 So. 2d 571 (Fla. 2d DCA 1960). II BASIS FOR MOTION TO DISMISS A. 3. LACK OF PROPER VERIFICATION In Form A to the complaint, Plaintiffs counsel wrongly certifies that this foreclosure is

not a homestead residence. This is the Defendants residence and his homestead - he lives there and has lived there since he purchased it. The standard for verification of a residential mortgage foreclosure complaint is different from the standard for verification of a non-residential mortgage foreclosure or a document. 1 A residential foreclosure requires the highest standard, requiring
1 Florida Statutes section 92.525 provides:

Verification of documents; perjury by false written declaration, penalty. (1)When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:
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truth, whereas verification of a non-residential foreclosure or a document may be made on the lesser standard requiring that it only be true and correct to the best of my knowledge and belief. The verification in this case fails for two reasons: 1) it was made under the wrong standard for verification of residential foreclosure complaints; and, 2) the person verifying the complaint lacks the percipient knowledge and capacity to verify the complaint as she isnt employed by the owner and holder of the note and mortgage and the verification does not express how she would have the knowledge to make a verification about the subject subject note and mortgage. 4. The complaint in this action contains the following statement made by Angela Tuttle,

foreclosure analyst for Fifth Third Bank as Servicer for Plaintiff - Under penalty of perjury, I declare that I have read the foregoing Mortgage Foreclosure Complaint, and the facts alleged therein are true and correct to the best of my knowledge and belief. Verification on information or belief is not permitted by law in foreclosure actions on residential real estate. 5. On February 11, 2010 by the Florida Supreme Court, pursuant to In re: Amendments to

the Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 11, 2010) attached hereto an incorporated as Exhibit A, amended Fla. R. Civ. Pro. 1.110(b) to read [w]hen 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 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.

(a)Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or (b)By the signing of the written declaration prescribed in subsection (2). (2)A written declaration means the following statement: Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true, followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words to the best of my knowledge and belief may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration. (3)A person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
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6.

On December 9, 2010, the Supreme Court clarified its position in Case No. SC09-1579,

In re: Amendments to the Florida Rules of Civil Procedure-Form (Final Judgment of Foreclosure) and stated: Along with the amendments to form 1.996(a), rule 1.110(b) was amended to require verification of mortgage foreclosure complaints involving residential real property. One of the primary purposes of this amendment was to ensure that the allegations in the complaint are accurate. In light of recent reports of alleged document fraud and forgery in mortgage foreclosure cases, this new requirement is particularly important. (At pages 2 and 3) 7. Here, the attempted verification of the complaint fails to meet the strict requirements of

Fla. R. Civ. P. 1.110(b). The verification is qualified by the use of the provision: to the best of my knowledge and belief. This is the lower standard reserved for non-residential foreclosures and documents and not allowed on a complaint for foreclosure of a residential foreclosure. Wherefore, the verification must be struck and the complaint dismissed. 8. Plaintiff claims that it - Fifth Third Mortgage Company - owns and holds the subject

mortgage and note. (Complaint, para. 8) Plaintiffs counsel, Leah Mayersohn, signed the complaint and stated below her signature that her client is the plaintiff. The verification of the complaint is by Angela Tuttle, an employee of a different entity - Fifth Third Bank. Rule 1.210(a), Fla. R. Civ. P. (2010) provides that an action may be prosecuted in the name of an authorized person without joinder of the party for whose benefit the action is brought. See also, Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1184 (Fla. 3d DCA 1985). However, this complaint was not brought in the name of Fifth Third Bank, but in the name of the owner and holder of the note and mortgage, so verification by a non-party is a failure to verify. The verifying individual is entirely incapable of making the verification as she is not employed by plaintiff and doesnt provide any basis for the requisite percipient knowledge and capacity to make that verification. Therefore, this complaint requires a verification by the plaintiff itself. Wherefore, the verification must be struck and the complaint dismissed. B. 9. FAILURE TO TRUTHFULLY CERTIFY FORM A Plaintiffs counsel certified that the subject property was not a homesteaded residence of

the defendant. (Complaint, Form A)

10.

The rules relating to verification of foreclosure complaints and federal pre-suit default

prevention procedures as provided in 24 CFR 203.604 differ greatly in their requirements as relates to a foreclosure of a residence vs. a non-residence. If the subject property being foreclosed upon is a residence of the defendant, he is entitled to the maximum protections under the law, including those requirements for pre-suit mediation and the presence of plaintiffs representative at mediation as required by Twentieth Judicial Circuit Administrative Order AOSC09-54. By this motion, the defendant has verified that he is a resident in the subject property, and that he has always been a resident of the subject property since he purchased it. He also verified that the subject property is his homestead. (See verification below) 11. C. 12. Wherefore, the complaint must be dismissed. FAILURE TO ATTACH DOCUMENTS TO COMPLAINT Florida Rule of Civil Procedure 1.130(a) provides in pertinent part: All bonds, notes,

bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. 13. A motion to dismiss for failure to state a cause of action must be granted if the document

on which the complaint is based is not attached. See Walters v. Ocean Gate Phase I Condo, 925 So 2d 440, 443-44 (Fla 5th DCA 2006); Safeco Ins. Co. of America v. Ware, 401 So.2d 1129 (Fla. 4th DCA 1981). A party who makes a claim or defense based on a written instrument must attach a copy of the instrument to the pleading in which the claim or defense is raised. Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990). 14. Angela Tuttle verified the complaint. Just above her signature is the vague statement that

Fifth Third Bank is the servicer for the plaintiff. A servicer is an attorney in fact. This status requires a written power of attorney and compliance with Florida Statutes section 709.08(2), which provides:

WHO MAY SERVE AS ATTORNEY IN FACT.--The attorney in fact must be a natural person who is 18 years of age or older and is of sound mind, or a financial institution, as defined in chapter 655, with trust powers, having a place of business in this state and authorized to conduct trust business in this state. A not-for-profit corporation, organized for charitable or religious purposes in this state, which has qualified as a court-appointed guardian prior to January 1, 1996, and which is a tax-exempt organization under 26 U.S.C. s. 501(c)(3), may also act as an attorney in fact. Notwithstanding any contrary clause in the written power of attorney, no assets of the principal may be used for the benefit of the corporate attorney in fact, or its officers or directors. 15. Because verification of the complaint is a prerequisite to suit, the power of attorney/ser-

vicing agreement must be attached to the complaint to demonstrate capacity and standing. The failure to attach the servicing agreement to the complaint requires dismiss of the complaint.

D. 16.

FAILURE TO COMPLY WITH FHA PRE-SUIT RULES The first page of both the note and mortgage clearly states that it is an FHA insured loan

with FHA Case No. 095-1948121-703. 17. Paragraph 9(d) of the mortgage provides that regulations of the HUD Secretary may ap-

ply to this mortgage loan. The National Housing Act, 12 U.S.C. 1710(a) imposes specific statutory obligations on all creditors subject to HUD regulations to avoid foreclosure when a borrower defaults on a home loan insured by the federal government. The creditor is fully insured in exchange for agreeing to abide by these customer servicing obligations. 18. The only pre-suit default prevention effort alleged to have been provided to the borrower

was stated in paragraph 11 of the complaint, where plaintiff alleges that its servicer sent a letter to the defendant stating the phone number of a HUD consultant and that if the borrower called 1800-375-1745, option 3, he could arrange a face to face interview to discuss options. This letter was attached to the complaint as exhibit C. The letter was not alleged to have been sent by certified mail, nor does this letter state all the required advisements that the regulation requires be made to the borrower.

19.

24 CFR 203.604 provides that the servicer of a federally insured loan do certain things

prior to filing a foreclosure action. The greatest requirements are provided to borrowers who reside in the mortgaged property which is less than 200 miles from the mortgagee, its servicer, or a branch office of either. Since that is the case at hand, those requirements include: i. ii. A trip out to the subject property to see the mortgagor; and, A certified letter go to the borrower stating that:

a. the borrower is entitled to a face to face meeting at the property; b. Inform the mortgagor that HUD will make information regarding the status and payment history of the mortgagor's loan able to local credit bureaus and prospective creditors; c. Inform the mortgagor of other available assistance, if any; d. Inform the mortgagor of the names and addresses of HUD officials to whom further communications may be addressed. 20.

avail-

The complaint is devoid of any statement that the Plaintiff complied with federal pre-suit

default prevention procedures. Compliance with the default loan servicing federal regulations promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C. 1710(a) can be held to be a contractual condition precedent to instituting a foreclosure action and the failure of the Plaintiff to implement foreclosure avoidance servicing is an appropriate subject for a counterclaim for declaratory and injunctive relief. See: U.S. v. Trimble, 86 F.R.D. 435 (S.D. Fla. 1980) and Cross v. Federal National Mortgagee Association, 359 So. 2d 464, 465 (Fla. 4th DCA 1978): "A mortgage foreclosure is an equitable action and thus equitable defenses are most appropriate [I]t appears to us that given the purpose of ... the recommended efforts to obviate the necessity of foreclosure, any substantial deviation from the recommended norm might be construed by the trial court under the heading of an equitable defense." Id., 359 So. 2d at 465. (also see U.S. v. Trimble, 86 F.R.D. 435 (S.D. Fla. 1980), where the court found that compliance with applicable federal laws can be upheld as equitable defense to deny a creditor the judicial remedy of foreclosure.) Wherefore, equity requires that the complaint be dismissed and the defendant be given proper notice of his federal pre-suit default prevention rights. III MOTION FOR MORE DEFINITE STATEMENT 21. Florida Rules of Civil Procedure 1.140(e) states:

Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. 22. Unlike the pleading requirements in the federal courts where notice pleading is the pre-

vailing standard, the Florida Rules of Civil Procedure require fact pleading. Ranger Contru. v. Martin Cos., 881 So. 2d 677, 680 (Fla. 5th DCA 2004). In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. Med. & Benefits Plan v. Lago, 867 So. 2d 1184 (Fla. 5th DCA 2004). At the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared. Horowitz v. Laske, 885 So. 2d 169, 173 (Fla. 5th DCA 2003) (citing Arky, Freed, Stearns, Watson, Greer Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988)). 23. Plaintiff has not alleged anywhere in its complaint that Fifth Third Bank is the servicer

for the Plaintiff. The only place that is vaguely alluded to is on the verification page where the verifier of the complaint signed the verification. If Fifth Third Bank is truly the servicer for the plaintiff, then under 24 CFR 203.604, the defendant was entitled to federal pre-suit default prevention procedures and can defend and counter-claim on that basis. But without that clarification, it is impossible for defendant to truthfully make that defense. Defendants respectfully pray this Court strike the Plaintiffs pleading, require the Plaintiff to plead sufficient facts in support of its legal conclusions that: A. B. C. D. Fifth Third Bank is the servicer for Fifth Third Mortgage Company. Fifth Third Banks branch offices were farther than 200 miles from the mortgaged property. The defendant does not reside in the subject home. The subject home is not the homesteaded property of the defendant.

IV DEBT VALIDATION DEMAND AND CEASE CONTACT DEMAND PURSUANT TO 15 U.S.C. 1692, ET. SEQ. AND FLORIDA STATUTES 559.55, ET. SEQ. 24. Defendants demand that Plaintiff validate the debt pursuant to federal and state law and cease contacting defendants except through the undersigned counsel.

V CONCLUSION 25. Wherefore, defendant hereby moves the Court to Order the complaint dismissed for: A. B. C. D. lack of proper verification; failure to truthfully certify Form A pursuant to Twentieth Judicial Circuit Administrative Order AOSC09-54; failure to attach required documents to the complaint. lack of compliance with federal pre-suit default prevention procedures; and,

Or, alternatively, the defendant moves for a more definite statement that: A. B. C. D. Fifth Third Bank is the servicer for Fifth Third Mortgage Company. Fifth Third Banks branch offices were farther than 200 miles from the mortgaged property. The defendant does not reside in the subject home. The subject home is not the homesteaded property of the defendant.

VERIFICATION OF DEFENDANT Jane Doe 1. 2. 3. 4. I, Jane Doe, am the defendant in this matter. This affidavit is based upon my personal knowledge, and if called upon as a witness in this matter I could competently testify to the facts as set forth below. I am the mortgagor of the subject property of this foreclosure lawsuit. I have constantly lived at the subject property since I bought it. It is my primary residence and my homestead. I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this verification and that the punishment for knowingly making a false statement includes fines and/or imprisonment. Dated: ____________________ STATE OF FLORIDA
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_________________________________ Jane Doe

COUNTY OF SEMINOLE Sworn to or affirmed and signed before me on December _____, 2011 by Jane Doe.

_____________________________________ NOTARY PUBLIC or DEPUTY CLERK

_____________________________________ [Print, type, or stamp commissioned name of notary or clerk.] ___ Personally known ___ Produced identification Type of identification produced

December ____, 2011 ______________________ George Gingo, FBN 879533 James E. Orth, Jr. FBN 75941 2215 Garden Street, Suite B Titusville, FL 32796 (321) 264-9624 (866) 311-9573 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing is being furnished by U.S. mail on the 9th day of January, 2012, to Leah Myersohn, Myersohn Law Group, P.A., 101 N.E. 3rd Avenue, Suite 1250, Fort Lauderdale, Florida 33301-1185. ________________________ George Gingo FBN 879533

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