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Filing # 68591678 E-Filed 02/28/2018 01:46:05 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
MIDWESTONE BANK, an Iowa Banking GENERAL JURISDICTION DIVISION
Corporation, authorized to do business in Florida,
Successor by Merger to Central Bank Southwest Case No. 2017-CA-002186
Florida,
Plaintiff,
vs.
Carole H. Smith; Fifth Third Mortgage Company,
Defendants.
/
DEFENDANT’S MOTION TO DISMISS
Defendant, FIFTH THIRD MORTGAGE COMPANY (“Fifth Third”), by and through its
undersigned counsel, moves to the dismiss the complaint file by Plaintiff, MIDWESTONE
BANK, an Iowa Banking Corporation, authorized to do business in Florida, Successor by Merger
to Central Bank Southwest Florida, and in support thereof states as follows:
Standard for Motion to Dismiss
1. On a motion to dismiss for failure to state a cause of action, a trial court is
confined to the four corners of the complaint, and the material allegations of the complaint must
be taken as true. The trial court is bound by the four corners of the complaint and attachments,
and all ambiguities and inferences drawn from the recitals in the complaint, together with the
exhibits attached, must be construed in a light most favorable to the plaintiff. If the court is
required to consider matters outside of the four corners of the complaint, then the cause is not
subject to dismissal based on the basis of an affirmative defense. Belcher Ctr. LLC v. Belcher
Ctr., Inc., 883 So. 2d. 338, 339 (Fla. 2d DCA 2004).
Case No. 2017-CA-002186 1of4 File # 18-F00071
FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 02/28/2018 03:04:34 PMProcedural Posture
2. On December 20, 2017, Plaintiff filed a two-count Complaint to foreclose a
mortgage against homeowner, Carole H. Smith. Plaintiff's mortgage was recorded on May 12,
2008 within the Original Records of Collier County, Florida, Book 4359, Page 1168. (§ 29,
Complaint).
3. Fifth Third was joined as a defendant by virtue of its mortgage interest recorded on
September 2, 2005 in Original Records of Collier County, Florida, Book 3881, Page 4002. (§j 37,
Complaint).
4. Fifth Third moves to be dismissed from Plaintiff's lawsuit because Plaintiff has
failed to state a cause of action against Fifth Third. Specifically, Fifth Third’s mortgage interest is
superior to Plaintiff's mortgage lien. The priority issue is evidenced within the four corners of the
Complaint and based upon the recording dates of the respective mortgages.
5. Persons or entities holding mortgages or liens prior to the mortgage under
foreclosure are neither necessary nor proper parties to the action. Cone Bros. Constr. Co. v.
Moore, 193 So. 288, 290 (Fla. 1940); Garcia v. Stewart, 906 So. 2d 1117 (Fla. 4th DCA 2005).
The Florida Supreme Court has explained that a “prior mortgagee may elect for himself the time
and manner of enforcing his security. He cannot be compelled to be a party to a suit by a junior
encumbrancer foreclosing its lien.” Cone Bros. at 290.
6. It is clear on the face of the record and allegations contained within Plaintiffs
Complaint, that Fifth Third holds a superior interest and is therefore neither a necessary or proper
party to the action’.
| Fifth Third has performed a title examination and confirmed its lien priority as being superior
to Plaintiffs, but Fifth Third is mindful of the scope of the Court’s consideration in the context
Case No. 2017-CA-002186 2 0f4 File # 18-F00071WHEREFORE, Fifth Third respectfully requests this Honorable Court grant its Motion to
Dismiss, and such other and further relief as this Court deems just and proper.
Dated: February 28, 2018
Respectfully submitted,
BROCK & SCOTT, PLLC
Attorney for Plaintiff
1501 N.W. 49" Street, Suite 200
Ft. Lauderdale, FL 33309
Phone: (954) 618-6955, ext. 6076
Fax: (954) 618-6954
FLCourtDocs@pbrockandscott.com
By__/s/ Shaib Y. Rios
Shaib Y. Rios, Esq.
Florida Bar No. 28316
of a motion to dismiss and thus the title examination result is not the basis upon which Fifth
Third moves.
Case No. 2017-CA-002186 3 of 4 File # 18-F00071CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy hereof was served electronically or via
U.S. Mail on February 28, 2018 to all persons shown on the following service list.
The following persons were served by e-mail:
Bradley S. Donnelly, Esq.
Attorney for Plaintiff
3080 Tamiami Trail East
Naples, FL 34112
bdonnelly@swflalaw.com; ckoert@swflalaw.com
The following persons were served by U.S. mail:
Carole H. Smith
4121 Pine Ridge Rd.
Naples, FL 34119
By__/s/ Shaib Y. Rios
Shaib Y. Rios, Esq.
Florida Bar No. 28316
Case No. 2017-CA-002186 4of4 File # 18-F00071
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Filing # 68591678 E-Filed 02/28/2018 01:46:05 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA MIDWESTONE BANK, an Iowa Banking GENERAL JURISDICTION DIVISION Corporation, authorized to do business in Florida, Successor by Merger to Central Bank Southwest Case No. 2017-CA-002186 Florida, Plaintiff, vs. Carole H. Smith; Fifth Third Mortgage Company, Defendants. / DEFENDANT’S MOTION TO DISMISS Defendant, FIFTH THIRD MORTGAGE COMPANY (“Fifth Third”), by and through its undersigned counsel, moves to the dismiss the complaint file by Plaintiff, MIDWESTONE BANK, an Iowa Banking Corporation, authorized to do business in Florida, Successor by Merger to Central Bank Southwest Florida, and in support thereof states as follows: Standard for Motion to Dismiss 1. On a motion to dismiss for failure to state a cause of action, a trial court is confined to the four corners of the complaint, and the material allegations of the complaint must be taken as true. The trial court is bound by the four corners of the complaint and attachments, and all ambiguities and inferences drawn from the recitals in the complaint, together with the exhibits attached, must be construed in a light most favorable to the plaintiff. If the court is required to consider matters outside of the four corners of the complaint, then the cause is not subject to dismissal based on the basis of an affirmative defense. Belcher Ctr. LLC v. Belcher Ctr., Inc., 883 So. 2d. 338, 339 (Fla. 2d DCA 2004). Case No. 2017-CA-002186 1of4 File # 18-F00071 FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 02/28/2018 03:04:34 PMProcedural Posture 2. On December 20, 2017, Plaintiff filed a two-count Complaint to foreclose a mortgage against homeowner, Carole H. Smith. Plaintiff's mortgage was recorded on May 12, 2008 within the Original Records of Collier County, Florida, Book 4359, Page 1168. (§ 29, Complaint). 3. Fifth Third was joined as a defendant by virtue of its mortgage interest recorded on September 2, 2005 in Original Records of Collier County, Florida, Book 3881, Page 4002. (§j 37, Complaint). 4. Fifth Third moves to be dismissed from Plaintiff's lawsuit because Plaintiff has failed to state a cause of action against Fifth Third. Specifically, Fifth Third’s mortgage interest is superior to Plaintiff's mortgage lien. The priority issue is evidenced within the four corners of the Complaint and based upon the recording dates of the respective mortgages. 5. Persons or entities holding mortgages or liens prior to the mortgage under foreclosure are neither necessary nor proper parties to the action. Cone Bros. Constr. Co. v. Moore, 193 So. 288, 290 (Fla. 1940); Garcia v. Stewart, 906 So. 2d 1117 (Fla. 4th DCA 2005). The Florida Supreme Court has explained that a “prior mortgagee may elect for himself the time and manner of enforcing his security. He cannot be compelled to be a party to a suit by a junior encumbrancer foreclosing its lien.” Cone Bros. at 290. 6. It is clear on the face of the record and allegations contained within Plaintiffs Complaint, that Fifth Third holds a superior interest and is therefore neither a necessary or proper party to the action’. | Fifth Third has performed a title examination and confirmed its lien priority as being superior to Plaintiffs, but Fifth Third is mindful of the scope of the Court’s consideration in the context Case No. 2017-CA-002186 2 0f4 File # 18-F00071WHEREFORE, Fifth Third respectfully requests this Honorable Court grant its Motion to Dismiss, and such other and further relief as this Court deems just and proper. Dated: February 28, 2018 Respectfully submitted, BROCK & SCOTT, PLLC Attorney for Plaintiff 1501 N.W. 49" Street, Suite 200 Ft. Lauderdale, FL 33309 Phone: (954) 618-6955, ext. 6076 Fax: (954) 618-6954 FLCourtDocs@pbrockandscott.com By__/s/ Shaib Y. Rios Shaib Y. Rios, Esq. Florida Bar No. 28316 of a motion to dismiss and thus the title examination result is not the basis upon which Fifth Third moves. Case No. 2017-CA-002186 3 of 4 File # 18-F00071CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy hereof was served electronically or via U.S. Mail on February 28, 2018 to all persons shown on the following service list. The following persons were served by e-mail: Bradley S. Donnelly, Esq. Attorney for Plaintiff 3080 Tamiami Trail East Naples, FL 34112 bdonnelly@swflalaw.com; ckoert@swflalaw.com The following persons were served by U.S. mail: Carole H. Smith 4121 Pine Ridge Rd. Naples, FL 34119 By__/s/ Shaib Y. Rios Shaib Y. Rios, Esq. Florida Bar No. 28316 Case No. 2017-CA-002186 4of4 File # 18-F00071