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Filing # 185678099 E-Filed 11/07/2023 05:11:54 PM
NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO.
ZOL3-
CA S\N
Prawn thaie: cote Sonatas 180°
PLAINTIFF(S)
VS
=
"
Deidre
Nona USN
DEFENDANT(S)
ORDER
This matter coming before me, and the Court being advised in the premises, it is:
ORDERED AND ADJUDGED that:
The Plaintiff/Defendant’s motion to annsick c Cxcle is hereby:
GRANTED/ DENIED.
DONE AND ORDERED AT Kissimmee, Osceola County, Florida this day of
, 20
COUNTY COURT JUDGE
Copies were provided to each party at the address shown above on 20. ys
By:
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN
AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISON
PENNYMAC LOAN SERVICES LLC
Plaintiff ) Case No: 2023-CA-3118
vs.
Jan Michael Jamieson,
Deidra Janee Wills,
Defendants,
DEFENDANT’S MOTION FOR RECONSIDERATION
Jan Micheal Jamieson and Deidra Janee Wills (“hereinafter Defendants”) respectfully files this motion to
object to this Court’s order dismissing the Defendants Motion to Dismiss Plaintiff's complaint and requests a
reconsideration based on the following:
I: BACKGROUND
On or about April 3, 2023, the Plaintiff by way of alleged counsel filed the instant action to foreclose a
mortgage.
On or about June 1, 2023, the Defendants filed a Motion to Dismiss the Plaintiff's complaint to
foreclose a mortgage on the grounds that the Plaintiff failed to comply with the statutory requirements
required to foreclose a mortgage and failure to state a claim upon which relief can be granted.
On or about October 31, 2023, the Defendants, received an Order on Defendant’s Motion (See Filing #
183286325).
I: LEGAL STANDARD
Title XL Chapter 702.015 provides the elements required to commence a foreclosure action in the state
of Florida. 702.015 (2) (a) states that a complaint that seeks to foreclose a mortgage which secures a
promissory note must contain affirmative allegations expressly made by the plaintiff at the time the
proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage.
Title XL Chapter 702.015(4) provides that if the plaintiff is in possession of the original promissory
note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously
with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original
promissory note.
Ill: LEGAL ARGUMENT
6. In the Order on Defendants Motion Judge Alvaro in its conclusion of law found that the complaint
alleges Plaintiff counsel is in physical possession of the Note endorsed in blank which is the
subject of this action and therefore, Plaintiff is the holder of that Note” when ruling on a motion to
dismiss the Court must also draw all inferences in favor of the pleader and accept as true all well
pleaded allegations. And assuming all the allegations in the complaint to be true, the plaintiff would be
entitled to the requested relief.
Legislature has created the statutory schemed governing mortgage foreclosure. 2012 Bank of Am.,N.A.
v Seiefker, 201 So.3d 811, 818 (Fla. Dist. Ct App. 2016). The Legislature has codified the requirements
for establishing possession of the promissory note in residential foreclosure cases. See§ 702.015, Fla.
Stat. (2013). While foreclosure cases are heard in equity court, they must still comply with the
specified foreclosure laws and regulations codified. Shanks v Bergerman 334 So. 3D 681 (Fla. Dist.
Ct. App. 2022). The statute applies to cases filed on or after July 1, 2013. In 2014, the Florida Supreme
Court adopted rule 1.115 of the Florida Rules of Civil Procedure to give effect to section 702.015.
Rule 1.115 specifically governs pleading requirements in foreclosure actions. The rule incorporates the
requirements of section 702.015, Florida Statutes, detailing pleading requirements where the plaintiff is
the holder of the original note secured by the mortgage, where the plaintiff has been delegated authority
to institute an action on behalf of another who is entitled to enforce the note, and where the plaintiff
secks to enforce a lost, destroyed, or stolen note. § 702.015, Fla. Stat. (2015). Legislature set forth and
stated with specificity who and what must be alleged to commence a foreclosure action. The word
must imply a command or requirement. 16 So. 3d 841(Fla. Dist. App. 2009).
In this instance the complaint failed to affirmatively allege that PennyMac is holder of the
original promissory note secured by the mortgage. The complaint filed by the Plaintiff states
“Plaintiff counsel is in physical possession of the Note endorsed in blank which is the
subject of this action and therefore, Plaintiff is the holder of that Note”. (See Filing
#170255024 paragraph #4). It does not affirmatively allege that Plaintiff Penny Mac is or was
in possession of the original note. It states that Counsel is in physical possession of the Note
endorsed, therefore the Plaintiff has failed to set forth the pleading requirements and dismissal
is proper. Levine y Dade County School Board: Menendez v. North Broward Hospital Wright
v. Polk City Public Health, 601 So. 2d 1318, 1319 (Fla. Dis. Ct. App. 1992), City of Miami, v
Coconut Grove, 358 So. 2d1151,1154 (Fla, Dist. Ct. App. 1978)
In the Order on Defendants Motion Judge Alvaro stated “Plaintiff counsel is permitted as an agent of
the Plaintiff and consistent with well-established agency law to certify the possession of the note
on Plaintiff's behalf. “However, 702.015(4) is clear and unambiguous and sets forth specifically that
if the plaintiff is in possession of the original promissory note the plaintiff must file under the penalty
of perjury a certification with the court, contemporaneously with the filing of the complaint for
foreclosure, that the plaintiff is in possession of the original promissory note.
10 It is well established that when a statute is clear and unambiguous such as 702.015 the Court must
apply the principle of statutory construction known as the plain meaning rule or plain language rule.
Under this rule the court must interpret the statute exactly as it is written.
u In this instant action Katie Wilshaw, an alleged document custodian of McCalla Raymer Leibert Pierce
LLC, not the Plaintiff, filed under the penalty of perjury that the collateral file and not the Plaintiff
contained the original promissory note, therefore the Plaintiff has failed to comply with the statutory
requirements of 702.015 (4). In addition to not satisfying the statutory requirements the Certification is
hearsay, inadmissible evidence and must be stricken from the record.
12. Legislature intended to ensure initial disclosure of a plaintiff status and the facts supporting that status.
The statutes governing foreclosure actions under 702.015 provides a complaint seeking to foreclosure
must affirmatively allege the plaintiff is in possession of the original note. The plaintiff filed the
complaint secking to foreclose on the Defendant’s property but failed to satisfy the statutory
requirements therefore, the complaint must be dismissed.
For the foregoing reasons the Defendant’s respectfully requests this Court to reconsider its order
denying the Defendant’s Motion to Dismiss.
soe Ba
Jan Michael Jamieson
Deidra Janee Wills
5634 Western Sun Dr.
Saint Cloud, FL 3477:
CERTIFICATE OF SERVICE
TJan Michael Jamieson and Deidra Janee Wills, hereby certify that on November 7, 2023, I caused a true and
correct copy of the Defendant’s Motion to Reconsider
via electronic and certified mail to:
Penny Mac
c/o Nicholas J. Vahook
225 E Robinson Street #155
Orlando, FL 32801
Nicholas J. Vanhook
Nicholas. Vanhook@mccalla.com
Signature: Cc
Date: of. 2 fs
Signature: eeGen —
Date: o/zf25
Preview
Filing # 185678099 E-Filed 11/07/2023 05:11:54 PM NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO. ZOL3- CA S\N Prawn thaie: cote Sonatas 180° PLAINTIFF(S) VS = " Deidre Nona USN DEFENDANT(S) ORDER This matter coming before me, and the Court being advised in the premises, it is: ORDERED AND ADJUDGED that: The Plaintiff/Defendant’s motion to annsick c Cxcle is hereby: GRANTED/ DENIED. DONE AND ORDERED AT Kissimmee, Osceola County, Florida this day of , 20 COUNTY COURT JUDGE Copies were provided to each party at the address shown above on 20. ys By: IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISON PENNYMAC LOAN SERVICES LLC Plaintiff ) Case No: 2023-CA-3118 vs. Jan Michael Jamieson, Deidra Janee Wills, Defendants, DEFENDANT’S MOTION FOR RECONSIDERATION Jan Micheal Jamieson and Deidra Janee Wills (“hereinafter Defendants”) respectfully files this motion to object to this Court’s order dismissing the Defendants Motion to Dismiss Plaintiff's complaint and requests a reconsideration based on the following: I: BACKGROUND On or about April 3, 2023, the Plaintiff by way of alleged counsel filed the instant action to foreclose a mortgage. On or about June 1, 2023, the Defendants filed a Motion to Dismiss the Plaintiff's complaint to foreclose a mortgage on the grounds that the Plaintiff failed to comply with the statutory requirements required to foreclose a mortgage and failure to state a claim upon which relief can be granted. On or about October 31, 2023, the Defendants, received an Order on Defendant’s Motion (See Filing # 183286325). I: LEGAL STANDARD Title XL Chapter 702.015 provides the elements required to commence a foreclosure action in the state of Florida. 702.015 (2) (a) states that a complaint that seeks to foreclose a mortgage which secures a promissory note must contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage. Title XL Chapter 702.015(4) provides that if the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. Ill: LEGAL ARGUMENT 6. In the Order on Defendants Motion Judge Alvaro in its conclusion of law found that the complaint alleges Plaintiff counsel is in physical possession of the Note endorsed in blank which is the subject of this action and therefore, Plaintiff is the holder of that Note” when ruling on a motion to dismiss the Court must also draw all inferences in favor of the pleader and accept as true all well pleaded allegations. And assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the requested relief. Legislature has created the statutory schemed governing mortgage foreclosure. 2012 Bank of Am.,N.A. v Seiefker, 201 So.3d 811, 818 (Fla. Dist. Ct App. 2016). The Legislature has codified the requirements for establishing possession of the promissory note in residential foreclosure cases. See§ 702.015, Fla. Stat. (2013). While foreclosure cases are heard in equity court, they must still comply with the specified foreclosure laws and regulations codified. Shanks v Bergerman 334 So. 3D 681 (Fla. Dist. Ct. App. 2022). The statute applies to cases filed on or after July 1, 2013. In 2014, the Florida Supreme Court adopted rule 1.115 of the Florida Rules of Civil Procedure to give effect to section 702.015. Rule 1.115 specifically governs pleading requirements in foreclosure actions. The rule incorporates the requirements of section 702.015, Florida Statutes, detailing pleading requirements where the plaintiff is the holder of the original note secured by the mortgage, where the plaintiff has been delegated authority to institute an action on behalf of another who is entitled to enforce the note, and where the plaintiff secks to enforce a lost, destroyed, or stolen note. § 702.015, Fla. Stat. (2015). Legislature set forth and stated with specificity who and what must be alleged to commence a foreclosure action. The word must imply a command or requirement. 16 So. 3d 841(Fla. Dist. App. 2009). In this instance the complaint failed to affirmatively allege that PennyMac is holder of the original promissory note secured by the mortgage. The complaint filed by the Plaintiff states “Plaintiff counsel is in physical possession of the Note endorsed in blank which is the subject of this action and therefore, Plaintiff is the holder of that Note”. (See Filing #170255024 paragraph #4). It does not affirmatively allege that Plaintiff Penny Mac is or was in possession of the original note. It states that Counsel is in physical possession of the Note endorsed, therefore the Plaintiff has failed to set forth the pleading requirements and dismissal is proper. Levine y Dade County School Board: Menendez v. North Broward Hospital Wright v. Polk City Public Health, 601 So. 2d 1318, 1319 (Fla. Dis. Ct. App. 1992), City of Miami, v Coconut Grove, 358 So. 2d1151,1154 (Fla, Dist. Ct. App. 1978) In the Order on Defendants Motion Judge Alvaro stated “Plaintiff counsel is permitted as an agent of the Plaintiff and consistent with well-established agency law to certify the possession of the note on Plaintiff's behalf. “However, 702.015(4) is clear and unambiguous and sets forth specifically that if the plaintiff is in possession of the original promissory note the plaintiff must file under the penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. 10 It is well established that when a statute is clear and unambiguous such as 702.015 the Court must apply the principle of statutory construction known as the plain meaning rule or plain language rule. Under this rule the court must interpret the statute exactly as it is written. u In this instant action Katie Wilshaw, an alleged document custodian of McCalla Raymer Leibert Pierce LLC, not the Plaintiff, filed under the penalty of perjury that the collateral file and not the Plaintiff contained the original promissory note, therefore the Plaintiff has failed to comply with the statutory requirements of 702.015 (4). In addition to not satisfying the statutory requirements the Certification is hearsay, inadmissible evidence and must be stricken from the record. 12. Legislature intended to ensure initial disclosure of a plaintiff status and the facts supporting that status. The statutes governing foreclosure actions under 702.015 provides a complaint seeking to foreclosure must affirmatively allege the plaintiff is in possession of the original note. The plaintiff filed the complaint secking to foreclose on the Defendant’s property but failed to satisfy the statutory requirements therefore, the complaint must be dismissed. For the foregoing reasons the Defendant’s respectfully requests this Court to reconsider its order denying the Defendant’s Motion to Dismiss. soe Ba Jan Michael Jamieson Deidra Janee Wills 5634 Western Sun Dr. Saint Cloud, FL 3477: CERTIFICATE OF SERVICE TJan Michael Jamieson and Deidra Janee Wills, hereby certify that on November 7, 2023, I caused a true and correct copy of the Defendant’s Motion to Reconsider via electronic and certified mail to: Penny Mac c/o Nicholas J. Vahook 225 E Robinson Street #155 Orlando, FL 32801 Nicholas J. Vanhook Nicholas. Vanhook@mccalla.com Signature: Cc Date: of. 2 fs Signature: eeGen — Date: o/zf25