Motion,Ex Parte: US BANK NATIONAL ASSOCIATION AS TRUSTEE V DOS SANTOS, ULISSES RIBERO

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                                IN THE CIRCUIT COURT OF THE 15™
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA

U.S. BANK NATIONAL ASSOCIATION
AS TRUSTEE, CIVIL DIVISION
Plaintiff(s),
CASE NO. 052007CA024481XXXMB int \A
v.

ULISSES RIBERO DOS SANTOS, et al.

Defendants.
/

MOTION TO DISMISS

 

The Defendant, Ulisses Ribero Dos Santos, by and through the undersigned éttomey,
pursuant to the applicable rules of the Florida Rules of Civil Procedure, anna dismiss the
Complaint for the following reasons:

1. The conditions precedent required to occur prior to bringing this cause of action
have not been alleged and have not occurred. Failure to provide the proper statutory notice
before filing suit prevents the Plaintiff from proceeding with the foreclosure action unless and
until the condition precedent is satisfied. NationsBank, N.A. v. Phillips-Jack, 5 Fla. L. Weekly
Supp. 542 (17" Jud. Cir., May 1998).

2. The Complaint and all actions taken by Plaintiff fail to comply with the Fair Debt
Collection Act, 15 U.S.C.§1692 et seg. A promissory note secured by a residential mortgage is
subject to the Act. Sandlin v. Shapiro & Fishman, 919 F.Supp. 1564 (M.D. Fla. 1996). Further,
the Defendant has not been provided proper notification of their rights under the Act.

3. The validation notice required by 15 U.S.C. §1692(g) creates confusion for the

Defendant consumer. The Complaint and the validation notice are inconsistent and create

confusion to the debtor.4. The Complaint based upon the document attached thereto as an exhibit, fails to
state a cause of action for the following:

a) Plaintiff cannot maintain an action based upon the exhibit, which is
attached to and therefore made part of the complaint, since the exhibit controls the parties'
responsibilities in the event of contradiction with the complaint, Health Application Systems v.
Hartford Life, 381 So. 2d 294 (1st DCA 1980), and the terms of document indicate that Equifirst
Corporation, and not the Plaintiff as the holder of the note without recourse.

b) Pursuant to Rule 1.130 of the Florida Rules of Civil Procedure, the plain
language of the attached document prevails and may be the basis for a motion to dismiss. /d. at
297; Padgett v. First Federal S&L Ass'n, 378 So. 2d 58 (1st DCA 1979).

5. Equitable considerations prohibit this foreclosure proceeding. The Plaintiff has
essentially accelerated the mortgage concerning the subject property without any notice. Since
the mortgage foreclosure is essentially a right to equitable relief, the element of fairness must
pervade the entire foreclosure process. See Meredith v. Fisher, 435 A. 2d 536 (N.H. 1981).

WHEREFORE, Defendants pray that this Court dismiss the action with prejudice,
terminate the security interest in Defendants’ property, declare any such security interests void,
enjoin Plaintiff during the pendency of this action and permanently thereafter from instituting,
prosecuting or maintaining foreclosure proceedings on the subject property, further that the
Court award reasonable attorney's fees, costs of suit herein, and applicable damages to

Defendants and such other relief as this Court deems just and proper.

I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Dismisswas furnished by U.S. mail to Nikolay Kolev, Esq., Flor9ida Default Law Group, 9119

Corporate Lake Drive, 3" Floor, Tampa, Florida, 33634, on this 16" day of January, 2008.

LAW OFFICES OF HAGEN & HAGEN, P.A.
Attorney for Ulisses Ribero Dos Santos
3531 Griffin Road

t. Lauderdale, Florida 33312
(984)987-0515  ,

Keyin, L./Hagen,
rida Bar No. 0008672

Honit Lyla Simon, Esquire

Florida Bar No. 0016247