Wie IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR BREVARD COUNTY CHASE HOME FINANCE LLC, Case No.: 05-2009-CA-74735-XXXX-XX Plaintiff, v. 8 Se THOMAS A. WEBSTER, et al Bs 15 Defendant, Pro Se tn / Der eG 2 AND MOTION TO STRIKE ‘Comes now, DEFENDANT THOMAS A. WEBSTER, Pro Se 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: 1. To dismiss for lack of standing (Alternatively, Abate); 2. To dismiss for failure to state a cause of action due to (Alternatively Abate): (a) " ~ Lack of Assignments; (b) Lack of Attachment fo Complaint of Power of Attorney; (©) Lack of Reasonable Indemnification; (@) Federal Pre-Foreclosure Default Prevention Procedures; (© Lack of Acceleration; (Q Lack of Compliance with F.S. 660, Trust Registration; (g) Lack of Loss Reserve Application; (i) Failure to Properly Allege a Cause of Action Pursuant to Fla. Stat. §71.011; and, (Lack of Debt Validation 3. To strike the prayers for attorney’s fees; and, 4. Tosstrike the request for a deficiency judgment, As grounds therefore, Defendants offer the following: Case t 105-2009-CA-074735-) HX seman oa inion renso! veinvevamxo I DEFINITIONS “Plaintiff” means: “CHASE HOME FINANCE LLC”. “Defendant” means: “THOMAS A. WEBSTER”. “Lender” means: | “MFC MORTGAGE, INC OF FLORIDA”. (Attached Mortgage, par. (D) Note, pat. 1) “Mortgagee™ means: “Mortgage Electronic Registration System (*MERS”)”. (Attached Mortgage, par. (C). 1 JUDICIAL NOTICE Pursuant to F.S. 90.202 and 90.203, Petitioner requests the Court take judicial notice of all documents filed by Plaintiff in this action, including the Summons and Complaint and its attachments. Ti FACTS 1) Lack of Standing i. The Plaintiff was never the Lender. It never held possession of the Mortgage Instrument. ‘The Mortgage provides that MERS is the mortgagee and that this Mortgage Instrument ‘was assigned a MERS number (MIN) of 100293200001237783. (Attached Mortgage exhibit, page 1) MERS public access website https://www.mers-servicerid.org/sis/search reveals that the servicer of the loan was JP MORGAN CHASE BANK N/A. This search ‘was made on January 30, 2009. MIN Status states itis “inactive”. ii, ‘The Plaintiff includes only a copy of the Mortgage Instrument and a copy of the Note Instrument in the Complaint. The copy of the Note Instrument carries with it an endorsement to SunTrust Mortgage, Inc. The Plaintiff does not state the name of the owner or holder of the Note Instrument, but the Plaintiff clearly states that itis the holder of said document. (Complaint, par. 4) iii, ‘The copy of the Note instrument provides “The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the “Note Holder”. (Complaint, Note, par. 1)vovarxo 2a) 2b) 2) 2@) 2) iv. The Complaint does not allege the chain of title of the Mortgage Instrument or Mortgage Note. vy. The Mortgage Instrument provides that the Mortgage Note may be sold in partial interests as long as it is sold with the Mortgage Instrument. (Complaint, Exhibit “A” Mortgage, par. 20) vi, Because MERS is the Mortgagee and neither the Plaintiff nor MERS is the owner or holder of the Note Instrument, it is clear that the Plaintiff is acting as a trustee on behalf of another entity(s) that holds the Note Instrument separately from the Mortgage Instrument in violation of paragraph 20 of the Mortgage Instrument. (Complaint, par. 20) Lack of Assignments vii, ‘The Plaintiff did not attach any documents to the Complaint that would establish the chain of ttle of the Mortgage Instrument and/or the Note Instrument. Lack of Attachment to Complaint of Power of Attorney viii, Plaintiff alleges that there was an executed Promissory Note and Mortgage Instrument. Plaintiff did not attach the original Promissory Note or a copy of the power of attomey to the Complaint. :k of Reasonable Indemnification ix. The Plaintiff does not allege that it actually has possession of the original Mortgage Instrument and Note Instrument which is required unless there is a lost note count. The Complaint does not carry a lost note count, nor does the Plaintiff allege that it is able and willing to indemnify the defendant. Federal Pre-Foreclosure Default Prevention Procedures x. The Complaint alleges that all conditions precedent to filing suit have occurred. (Complaint, par.9) However, the Complaint makes no allegation that the Plaintiff ha: complied with federally required pre-suit default prevention measures incident to foreclosure of a federally backed or federally owned mortgage loan. Lack of Acceleration xi. Plaintiff uses its Complaint as Notice of Acceleration. (Complaint, par. 7 & 8) The ‘Complaint is devoid of an allegation that Notice of Acceleration has been given as, required by the Mortgage. The Mortgage requires Notice of Acceleration be given prior to instituting suit. (Complaint, Mortgage, par. 20 & 22) Notice of Acceleration is both a condition precedent and a covenant.verre 2H) 2(8) 20h) 20) 3 Lack of Compliance with F.S, 660, Trust Registration xii, Plaintiff is acting as a trustee and has not alleged compliance with F.S. 660, et. seq., requiring the filing of a Declaration of Trust. ‘Lack of Loss Reserve Application xiii, The Mortgage provides that Mortgage Insurance payments from the defendants will be used to purchase Mortgage Insurance, and that if the Lender fails to buy such Mortgage Insurance, that Lender will accept, use and retain these payments as a non-refundable loss reserve in lieu of Mortgage Insurance. (Complaint, Exhibit “A” Mortgage par. 10) The Plaintiff has not alleged that the loss reserve has been exceeded by any default amount, Failure to Properly Allege a Cause of Action Pursuant to Fla. Stat. §71.011. xiv. The Complaint fails to provide the Original Mortgage and does not seek to reestablish the Mortgage, as required by Fla. Stat. §71.011(5). The Plaintiff has not alleged the time and manner of the loss or destruction, or even if the Original Mortgage was lost or destroyed. Furthermore, Plaintiff fails to allege any showing that Plaintiff ever possessed the Original Mortgage. Lack of Debt Validation xv, On 12/24/2009 Plaintiff's attorney generated a document that alleges it is compliance with the Fair Debt Collection Practices Act and attached same to its’ Complaint. Nothing in the document or the Complaint alleges that it was mailed or delivered to the Defendant other than with the service of process. It provides that the Defendant is entitled to thirty days notice to challenge the debt under the federal Fair Debt Collection Practices Act and that collection efforts will cease for an unstated period of time when the debtor notifies the Plaintiff's lawyer of a dispute regarding the debt. xvi. On 01/05/10 Plaintiff filed the Complaint. xvii, The Defendant was served on 01/12/10 and immediately challenged the validity of the debt. However, the Plaintiff continues to enforce collection and has failed to provide proof of the validity of the debt to the Defendant. Attorney Fees |. The Complaint seeks attorney fees in the prayer for relief. However, the Mortgage only provides attomey fees in an appellate case or bankruptcy case. (Complaint, Mortgage, par. 24) This is an action in Circuit Civil, not the appellate court.vevamxo Deficiency Judgment xix. The Complaint seeks a deficiency judgment in the prayer for relief. (Complaint, Prayer) The Complaint does not allege that the debt has been validated pursuant to the Federal Fair Debt Collection Practices Act which validation is demanded by the defendants. No accounting has been done by the Plaintiff, Iv STANDARD ON MOTION TO DISMISS Florida Rules of Civil Procedure section 1.410 provides in part: (b) 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. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. Ifa pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days afier service of the answer or reply. ‘The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency 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 well-pleaded allegations of the complaint. Brown v. First Federal Savings and Loan, 160 So.2d 556 (Fla, Ist 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).vevGenx0 v ARGUMENTS: L DISMISSAL FOR LACK OF STANDING A Law Florida Rules of Civil Procedure section 1.210(a) provides: (@) Parties Generally. 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 person’s own name without joining the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as Plaintiffs and any person may be made a Defendant who has or claims an interest adverse to the Plaintiff. Any person may at any time be made a party if that person’s presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as Plaintiffs or Defendants, and anyone who refuses to join may for such reason be made a Defendant. Florida Rules of Civil Procedure section 1.130 states: (@) Instruments Attached. 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. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments. () Part for All Purposes. ‘Any exhibit attached to a pleading shall be considered a part thereof for all purposes. Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion. When exhibits are inconsistent with Plaintif?’s 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).Bo Argument The Plaintiff was never the lender, it has no rights under the Mortgage Instrument and has never had ownership and possession (holder status) of the Note Instrument. The Plaintiff, though it does not admit as much, is acting as a trustee for some unnamed entity(s) which Plaintiff believes to be the owner and holder of the Note Instrument. As to the Note instrument, Florida Statutes section 673.2011 states: Negotiation. (1) The term “negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder. (2) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone. And, Florida Statutes section 673.2031 states: Transfer of instrument; rights acquired by transfer.-- (1) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. (2) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument. (3) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made. Florida Statutes section 673.2031 (3) applies in this case because the Note instrument provides a two-part test for its enforcement — both transfer and an entitlement to receive payments: ‘The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the “Note Holder”. (Complaint, Note, par. 1) Presumably, the trustee operates pursuant to a trust instrument. The trust instrument has not been 7 vevaenx0vevarn0 attached to the Complaint. The trust instrument would/should specify the conditions under which a holder of the Note instrument becomes “entitled” to receive payments of this particular Note Instrument. ‘That document is necessary to determine standing of the Plaintiff to enforce this Note Instrument. Florida Rules of Civil Procedure section 1.210(a) provides the basis for standing to bring an action, but the Plaintiff meets none of these criteria, 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). 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). 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 an 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). Plaintiff has not established that it is the real party in interest, is in privity of contract with the true holder of the note or is 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). 2 DISMISSAL FOR FAILURE TO STATE A CAUSE OF ACTION A LACK OF ASSIGNMENTS i Law Every mortgage is composed of two documents ~ the note and the mortgage instrument. No matter how much the mortgage is acclaimed as the basis of the agreement, the note is the essence of the debt. Sobel v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA, 1975); Pepe v. Shepherd, 422 So. 2d 910 (Fla. 3 DCA 1982); Margiewicz v. Terco Prop., 441 So. 2d 1124 (Fla. 3 DCA 1983); Restatement (Third) Property (Mortgages) section 5.4 (1997); As the Promissory Note is evidence of the primary mortgage obligation. The mortgage is only a mere incident to the note. Brown v. Snell, 6 Fla. 741 (1856); Tayton v. American Nat’l Bank, 57 So. 678 (Fla.vein 1912); Scott v. Taylor, 58 So. 30 (Fla. 1912); Young v. Victory, 150 So. 624 (Fla. 1933); Thomas v. Hartman, 553 So. 2d 1256 (Fla. 5 DCA 1989); Restatement (Third) Property (Mortgages) section 1.01 (1997) Itis security for the indebtedness and the mortgagee may sue on the note rather than the mortgage. Grier v. M.H.C. Realty Co, 274 So. 2421 (Fla. 4 DCA 1973); Mellor v. Goldberg, 658 So. 2d 1162 (Fla. 2 DCA 1995); Century Group Inc. v. Premier Fin, Services East L. P., 724 So. 2d 661 (Fla. 2 DCA 1999) The note is the instrument of concem in all assignment situations, There is an old maxim “the mortgage follows the note”. Evins v. Gainsville Nat'l Bank, 85 So. 659 (Fla. 1920); Case v. Smith, 200 So. 917 (Fla. 1941) The note is evidence of the primary mortgage obligations or the debt. The assignment of the note carries with it the mortgage and its rights, even though the mortgage instrument has not been assigned either orally or in writing. Collins v. Briggs, 123 So. 833 (Fla. 1929); Miami Mtge. & Guar. Co. v. Drawdy, 127 So. 323 Fla. 1930); So. Colonial Mige. Co. v. Medeiros, 347 So. 2d 736 (Fla. 4 DCA 197) The mortgage, as evidenced by the mortgage instrument, is only a mere incident to the debt. Therefore, the mortgage instrument is of lesser significance. Because the assignment of the note is an imperative act as to the transferring of the mortgagee’s right, the assignment of the mortgage instrument without the note is an ineffective assignment. ‘Vance v. Fields, 172 So. 2d 613 (Fla, 1 DCA 1965); Sobel v. Mutual Dev. Inc., 313 So. 24 77 (Fla, 1 DCA 1975); An assignment can only take place where the note is transferred by the mortgagee-assignor to the assignee. Second Nat'l Bank v. GMT Property, Inc., 364 So. 24 59 (Fla. 3 DCA 1978) F'S. section 673.3091 states that a person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person's right to enforce the instrument. Florida Rules of Civil Procedure section 1.130 requires that assignments of the note be attached to the complaint to demonstrate the chain of ownership — and the various percentage ownerships thereof by each assignee — leading to the enforceability of the note by the Plaintiff. Those documents are not attached to the complaint and are necessary to properly allege a foreclosure action. ii Argument An assignment of the Mortgage Instrument is absent in the Complaint. There are no originals of either the Mortgage Instrument or the Note Instrument alleged. These are requirements that must be met in order to state a cause of action. B. _ LACK OF ATTACHMENT OF POWER OF ATTORNEY i Law Florida Statutes section 709.01 states in part:Power of attorney; authority of nominee when principal dead. If the exercise of the power requires the execution and delivery of any instrument which is recordable under the laws of this state, such affidavit shall likewise be recordable... ‘The Freddie Mac Document Custody Procedures Handbook, at page 24 provides: Power of Attorney If the Note is executed on behalf of the Borrower by an attorney-in-fact pursuant to a Power of Attomey (POA), it must be clear that the Note has been signed by an attorney- in-fact. You must verify that the POA is dated on or before the Note Date. The Seller must deliver the original notarized POA. The Custodian is not expected to review the content of the POA. See Guide Section 16.5 for additional information. Freddie Mac requires that a POA be notarized even if state law or local customs do not. C. LACK OF REASONABLE INDEMNIFICATION i Law Florida Statutes section 673.3091 states: Enforcement of lost, destroyed, or stolen instrument — (2)... The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means. ii, Argument The allegations of the Complaint are deficient in demonstrating that Plaintiff has the original Mortgage Instrument and the original Note Instrument, Therefore, there must be acount to reestablish lost documents. The Complaint does not allege that the Plaintiff has the capacity to indemnify the Defendant, nor does it allege that it will indemnify the Defendant. D. _ FAILURE TO COMPLY WITH FEDERAL PRE-SUIT DEFAULT PREVENTION PROCEDURES i Law ‘The Florida Consumer Practices Act (FCCPA, F.S. 559.552) provides protection for consumers in foreclosure. The FCCPA prohibits the Plaintiff from collecting the underlying. consumer mortgage debt involved in this action by asserting its right to foreclose when the 10 vevOrnovevGenx0 Plaintiff knows that such right does not exist because the Plaintiff did not comply with the applicable federal default servicing obligations and guidelines prior to filing this foreclosure action. F.S. $59.72(9) provides (in pertinent part): Prohibited practices generally. In collecting consumer debts, no person shall: (9) Claim, attempt, or threaten to enforce a debt when such person...assert(s) the existence of some other legal right when such person knows that the right does not exist. The FCCPA applies to anyone attempting to collect a consumer debt unlawfully and F.S. 559.72 "includes all allegedly unlawful attempts at collection consumer claims." Seaton Jackson v. Plaintiff Homemortgage, Inc., 12 Fla. L. Weekly Supp. 188 (Fla. 6th Circuit 2004) citing Williams v. Streeps Music Co., Inc., 333 So. 2d 65 (Fla. 4th DCA 1976) See also, Hart v. GMAC Mortgage Corporation, 246 B.R. 709 (D. Mass. 2000)(Debtor stated a cause of action under the FDCPA where continuation of foreclosure proceedings amounted to conduct “the natural consequence of which was to harass, oppress, or abuse"). ‘The National Housing Act, 12 U.S.C. 1710(a) imposes specific statutory obligations on all creditors across the United States who service federally-insured home loans that requires the creditor to engage in very specialized default loan servicing and loss mitigation to avoid foreclosure when a borrower defaults on a home loan insured by the federal government for reasons beyond their control. The creditor is fully insured in exchange for agreeing to abide by these customer servicing obligations. 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 Mortgage 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 US. 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). 1verre i, Argument ‘The Plaintiff must show that it has federal authority to foreclose — that it complied with the pre-foreclosure default prevention procedures. The issue before the court in this action on Defendant's motion is whether the Plaintiff’ alleged failure to comply with these federal obligations before instituting this foreclosure action can be grounds for the court to equitably deny the lender the remedy of a foreclosure. ‘There are certain required steps a servicer of a loan must do before foreclosing, which are set forth in 24 CFR 203.604 and 24 CFR 203.605 for FHA loans, 7 CFR 762.143(b)(5) for Farm Services Loans, and other provisions for other types of federally backed loans. The federal government has deemed that pre-suit default prevention procedures are a condition precedent to filing a foreclosure action and must be utilized before foreclosure may be instituted. F.S. 559.72(9) provides that it is ilegal to enforce collection when knowing that other legal rights exist. The face of the mortgage provides prima facie evidence that this is a federally backed mortgage. The Plaintiff must demonstrate that it complied with all federal regulations on pre-suit default prevention procedures. That was not done in this case. It is therefore not sufficient in an action in equity or law to merely allege all conditions precedent have occurred. ‘The complaint is devoid of any statement that the Plaintiff complied with federal pre-suit default prevention procedures. The Plaintiff claims that all conditions precedent were satisfied, but it does not make any allegation that it complied with the federal pre-suit default prevention procedures. E. LACK OF ACCELERATION i Law ‘The Mortgage provides that no suit may be commenced until acceleration notice has been given pursuant to the terms of the Mortgage. (Complaint, Mortgage, par. 20) That notice must be at least 30 days prior to the initiation of the suit. (Reference in par. 20 to par. 22 of the Mortgage which states 30 days notice required) Additionally, the notice that is required is that, sent by first class mail to the defendants. (PI. Complaint, Mortgage par. 15) ii Argument The requirement of notice prior to acceleration is both a condition and a covenant. The Plaintiff admits in its complaint that the Complaint itself is notice of acceleration. That is a material violation of the terms of the Mortgage which provide that no suit may be commenced prior to that notice being given. Additionally, there is no reference in the Complaint that any document was sent by first class mail to the Defendant. Based on section 22 of the Mortgage and the definition of “lender" set forth on page I of 2vevGenx0 the Mortgage, Amedas v. Brown, 505 So.2d 1091 (Fla. 2nd DCA 1987), a default notice from the “lender” is a condition precedent prior to filing this complaint, Dykes v Trustbank Savings. F.S.B.. 567 So.2d 958 (Fla. 2" DCA 1990); Gomez v. American Savings and Loan_Ass'n, 515 So.24 301 Fla, 4" DCA 1987): Rashid v. Newberry Federal Savings and Loan Association, 502 So.2d 1316 (Fla. 3rd DCA. 1987); Rashid v. Newberry Federal Savings and Loan Association, 526 So.2d 772 (Fla. 3rd DCA 1988). F. LACK OF COMPLIANCE WITH E.S. 660, et. seq. i Law Plaintiff has not alleged compliance with Florida Statute § 660.27, titled: Deposit of securities with Chief Financial Officer which provides, in pertinent part: (1) Before transacting any trust business in this state, every trust company and every state or national bank or state or federal association having trust powers shall give satisfactory security by the deposit or pledge of security of the kind or type provided in this section having at all times a market value in an amount equal to 25 percent of the issued and outstanding capital stock of such trust company, bank, or state or federal stock association or, in the case of a federal mutual association, an equivalent amount determined by the office, or the sum of $ 25,000, whichever is greater. However, the value of the security deposited or pledged pursuant to the provisions of this section shall not be required to exceed $ 500,000. Any notes, mortgages, bonds, or other securities, other than shares of stock, eligible for investment by a state bank, state association, or state trust company, or eligible for investment by fiduciaries, shall be accepted as satisfactory security for the purposes of this section. Plaintiff has also failed to comply with Florida Statute § 660.27(2)(a), which requires the Bank to provide to Florida’s Chief Financial Officer the full legal name of the trust, its federal employer identification number; principal place of business; amount of capital stock; and amount of collateral required to be deposited by the trust. According to the Florida Office of Financial Regulation, Plaintiff has never been registered as a mortgage company in the State of Florida. The Defendants allege that Plaintiff is subject to the Florida registration and reporting statutes: Florida Statute 658.12(20) defines "trust business" as “the business of acting as a fiduciary when such business is conducted by a bank, state or federal association, or a trust company, and also when conducted by any other business organization as its sole or principal business. Florida Statute 658.12(8) defines “fiduciary” as “a trustee; committee, guardian, custodian, conservator, or other personal representative of a person, property, or an estate; registrar or transfer agent of, or in connection with, evidences of indebtedness of every kind and of stocks and bonds and other securities; fiscal or financial agent; investment adviser; receiver; trustee in bankruptcy; assignee for creditors; or holder of any similar representative position or 13vovamxo any other position of trust, including a person acting in any or all the capacities and performing any or all the functions enumerated in F.S. 660.34. Florida Statute 660.34(1) grants Plaintiff and every trust company in compliance with the statute “the right and power to act, alone or jointly with any other person, in any and every fiduciary capacity for or in connection with any and all fiduciary accounts of or pertaining to any business organization or other person, and any government, governmental body or other governmental entity or officer or body politic, and to engage in and conduct a general trust, business.” Florida Statute 660.34(2) grants Plaintiff and every trust company in compliance with the statute “all the rights, privileges, and immunities, and all the duties and obligations, appertaining to any fiduciary capacity assigned to or assumed by it and to fiduciaries generally.” Florida Statute 660.34(3) grants Plaintiff and every trust company in compliance with the statute “the right and the power to effectuate, exercise, carry out, and otherwise implement, in any lawful manner, any and all its lawful duties, obligations, rights, privileges, and immunities in connection with any fiduciary capacity assigned to or assumed by it and in connection with the conduct of its trust business...” Plaintiff is transacting trust business in the State of Florida which includes, but is not limited to the following: the acquiring, holding and transferring mortgages on property in Florida; receiving assignments of promissory notes; receiving payments from Florida consumers on mortgage notes; enforcing notes by filing and prosecuting this and other foreclosure actions; foreclosing on mortgages; purchasing foreclosed properties at judicial sales; and owning and selling properties acquired at judicial sales.. ii, Argument ‘The Complaint is devoid of any allegation of compliance with F.S. 660.27, and should therefore be dismissed. G. LACK OF USE OF LOSS RESERVE i Law ‘The Mortgage provides that Mortgage Insurance payments from the defendants will be used to purchase Mortgage Insurance, and that if the Lender fails to buy such Mortgage Insurance, that Lender will accept, use and retain these payments as a non-refundable loss reserve in lieu of Mortgage Insurance. (Pl. Complaint, Mortgage par. 10) ii Argument 14‘The Plaintiff has not alleged that the loss reserve has been exceeded by any default amount, Payments made by the defendant that were attributed to the loss reserve account are clearly a benefit for the defendants and must be applied to the balance due. Plaintiff has failed to allege the amount of such loss reserve and it has also failed to allege that it attributed such payments to the balance owing. This is significant because this mortgage is almost four years old and the loss reserve may be significant and there may be no default from the application of such payments H. FAILURE TO PROPERLY ALLEGE A CAUSE OF ACTION PURSUANT TO FLA. STAT. §71.011 i Law Florida Statute section 71.011(5) states: Complaint.- A person desiring to establish any paper, record or file... shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the person named in the complaint are the only persons known to plaintiff who are interested for or against such reestablishment. ii Argument The Plaintiff, in its Complaint at paragraph 3 alleges that a copy of the Mortgage is attached. The Plaintiff does not allege that it has possession of the original Note or Mortgage. Nor does the Plaintiff allege facts to reestablish the Mortgage pursuant to Fla. Stat. § 71.011. Plaintiff must provide the Original Mortgage or seek to reestablish same. In order to allege a cause of action pursuant to Fla. Stat. §71.011 one must allege: 1) that the paper has been lost or destroyed, 2) the time and manner of the loss or destruction, 3) that a substantial copy is attached to the complaint, and 4) that all interested parties are named in the complaint. Plaintiff did none of this. In fact, Plaintiff appears to attempt to circumvent the pleading requirement under Fla, Stat. §71.011 by attaching an alleged copy of the Mortgage. The statute is clear that “a person desiring to establish any paper, record or file, shall file in a complaint in chancery setting forth...the time and manner of loss or destruction (emphases added).” I _ LACK OF DEBT VALIDATION i Law The Federal Fair Debt Collection Practices Act (“FDCPA"), at 15 USC 1692g provides in part: 15 vevamxovevamxo (b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. . . . ii Argument On September 16, 2009, Defendants disputed the debt by sending a Qualified Written Request to the Plaintiff. Plaintiff acknowledged receipt of the dispute, but disregarded it, claiming that information was deemed “confidential”. Defendants demand compliance with the FDCPA. Plaintiff refuses to identify the owner of the alleged debt and refuses 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. Defendants contend that Plaintiff or its agents/principals have refused to apply all timely mortgage payments from Defendants and account for all the payments on the note that went to partial purchasers of the note or whole purchasers of the note. Plaintiff has not demonstrated ‘what percentage part, if any, of the note has been sold nor has the identity of those partial purchasers been provided. There is no evidence that Plaintiff has forwarded any and all payments to the actual owner of the note. Additionally, Plaintiff has added sums to the amount allegedly owed that are not authorized by any agreement or court order. 3. MOTION TO STRIKE REQUEST FOR ATTORNEY FEES The mortgage will be construed against the party that drafted it. Heath v. First Nat'l Bank, 213 So, 2d 883 (Fla. 1 DCA 1968) In the Complaint, Plaintiff requests an award of reasonable attorney fees. (Complaint, Prayer) Paragraph 24 of the mortgage attached as an exhibit to the complaint states: Attorneys’ fees. As used in this Security Instrument and the Note, “attorneys” Fees” shall include any attorneys’ fees awarded by an appellate court. This is an action in the Circuit Court of the State of Florida. The mortgage does not provide for attomey fees in any court other than an appellate court, though it could have as easily indicated that attorney fees are awardable in Circuit court or in any court for that matter. The document was not drafted by the Defendant and if it is ambiguous, it should be construed against the maker, not the Defendant. 16‘4. MOTION TO STRIKE REQUEST FOR DEFICIENCY JUDGMENT In Plaintiff's prayer for relief Plaintiff appears to be seeking a deficiency judgment. The record does not verify that Plaintiff has suffered any damages. 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 failed to provide any accounting to Defendants. And last, Plaintiff has offered no allegations or evidence that it is a holder in due course and that itis entitled to any deficiency judgment. VI CONCLUSION WHEREFORE, Defendant requests the Court: 1. To dismiss for lack of standing (Alternatively, Abate); 2. To dismiss for failure to state a cause of action due to (Alternatively Abate): (a) Lack of Assignments; (b) Lack of Attachment to Complaint of Power of Attorney; (©) Lack of Reasonable Indemnification; (@) _ Federal Pre-Foreclosure Default Prevention Procedures; (© Lack of Acceleration; (Lack of Compliance with F-S. 660, Trust Registration; (g) _ Lack of Loss Reserve Application; (b) Failure to Properly Allege a Cause of Action Pursuant to Fla. Stat. §71.011; and, @ Lack of Debt Validation. 3. Tostrike the prayers for attorney’s fees; and, 4. To strike the request for a deficiency judgment. Respectfully Submitted, vevamxo February 1, 2010 ‘Thomas A. Webster Defendant, Pro Se 4655 Elena Way Melbourne, FL 32934 v7aie CERTIFICATE OF SERVICE Mail, Thereby certify that a true and correct copy of the foregoing has been furnished by U. 119 this 1" February, 2010, to Ashleigh L. Politano, Esq., Florida Default Law Group, P. Corporate Lake Drive, Suite 300, Tampa, Florida 33634 Thomas A. Webster 18 vevGenx0