IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA DEUTSCHE BANK NATIONAL

TRUST COMPANY, AS TRUSTEE FOR CERTIFICATEHOLDERS OF SOUNDVIEW HOME LOAN TRUST 2005-OPT4, ASSETBACKED CERTIFICATES, SERIES 2005-OPT4 Plaintiff, Case No.: 43-2007-CA-000311-CA v. NICOLE WEST and TIMOTHY WEST, et al. Defendants. ___________________________________________/
MOTION TO STRIKE TRIAL ORDER The Defendant(s), NICOLE WEST, et al., by and through their undersigned attorney, move to strike the trial order entered on or about January 27, 2012, setting this matter for trial on March 30, 2012, because the cause was not at issue at the time the order was entered, where there remained unresolved motions directed to the last pleadingspecifically, Plaintiffs Motion To Strike the Defendants Jury Trial Demand. ARGUMENT 1. In order to set a matter for trial, the case must first be at issue. Rule 1.440 (b), Fla. R. Civ. P. 2. A case is not at issue until after any motions directed to the last pleading served have been disposed of Rule 1.440 (a), Fla. R. Civ. P. 3. In this case, the Plaintiff has a pending motion directed to the last pleading Defendants Answerseeking to strike that portion of the Answer that demands a jury trial. 4. This is precisely the type of motion that must be resolved before the trial court can set a matter for trial, because the results of the motion determine whether to set it on the jury or non-jury calendar.

5. Plaintiff never waived its right to file such a motion to strike, because Plaintiff never served a notice for trial. See Rule 1.440 (a), Fla. R. Civ. P. (The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served.) 6. In Leeds v. C.C. Chemical Corp., 280 So.2d 718, 719 (Fla. 3d DCA 1973), the appellate court said that a motion to strike all or part of the last pleading, while pending, prevents the case from being at issue, and preventing it from being set for trial. We hold that the cause is not at issue while such motions directed to pleadings remain undisposed of. In holding to the contrary the trial court was incorrect. Id. 7. In Alech v. General Ins. Co., 491 So.2d 337 (Fla. 3d DCA 1986), the court similarly held that a motion to strike a portion of one of the pleadings, while pending, prevented the case from being at issue: At the time the aforesaid motion for trial was filed, there was an undisposed-of defense motion to strike the plaintiff's punitive damages claim [and paragraphs 25, 27, and 28 of the complaint] contained in the defendant's answer, and, accordingly, the case was not at issue. Id. 8. A notice of or motion for trial filed at a time when the case is not at issue, as here, is a nullity. Id 9. Because the case is not at issue, and the order setting trial is a nullity, any judgment resulting from the improperly-set trial would be void as a violation of due process. Bennett v. Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1984). (Reversing judgment entered where case was tried on notice that violated Rule 1.440). Strict compliance with Rule 1.440 is mandatory. Id 10. Because the case is not at issue, and any resulting judgment would be void, the trial court should strike the order setting trial until such time as the Plaintiffs Motion to Strike Jury Trial has been resolved and the case is at issue.

Jacqulyn Mack, Esquire Florida Bar No.:0134902 MACK LAW FIRM CHARTERED 2022 Placida Road Englewood, Florida 34224-5204 And 27 Fletcher Ave. Sarasota, FL 34237 (941) 475-7966 and Michael Alex Wasylik Florida Bar No.:067504 RICARDO, WASYLIK, & KANIUK PL PO Box 2245 Dade City, FL 33526 (352) 567-3173 Attorneys for Defendant(s)

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been sent by U.S. Mail to: Can Guner, Esq., Ablitt/Scofield P.C., The Blackstone Building, 100 South Dixie Highway, Suite 200, West Palm Beach, FL 33401 on this ______ day of January, 2012.

__________________________ Jacqulyn Mack MACK LAW FIRM CHARTERED 2022 Placida Road Englewood, FL 34224-5204 (941) 475-7966 (941) 475-0729 fax
Jacqulyn@macklawfirm.org

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