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Filing # 32637777 E-Filed 09/29/2015 04:53:28 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICAL CIRCUIT
IN AND FOR BROWARD COUNTY
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE, ON BEHALF OF THE HOLDERS OF
THE J.P. MORGAN MORTGAGE ACQUISITION
TRUST 2007-CH2 ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2007-CH2,
Plaintiff, Case: CACE-15-012805
v.
HARRY J. STANFIELD, et. al.
Defendant (s),
DEFENDANT'S MOTION TO DISMISS COMPLAINT
COMES NOW, the Defendants HARRY J. STANFIELD (“Defendants”) by
and through the undersigned counsel, pursuant to Rule 1.140 of the Fla. Rul. Civ.
Pro. hereby files this Motion to Dismiss Plaintiff, DEUTSCHE BANK NATIONAL
TRUST COMPANY, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE J.P.
MORGAN MORTGAGE ACQUISITION TRUST 2007-CH2 ASSET BACKED PASS-
THROUGH CERTIFICATES, SERIES 2007-CH2 (‘“Defendant”)'s Complaint, to abate
the action, for more definite Statement, to strike and allege the following:
1. This Complaint should be abated or dismissed as the Fair Debt
Collection Notice was not provided. Since Plaintiff did not serve the notice of
acceleration and fair Debt letter at least 30 days before the complaint was filed,
there is a failure of conditions precedent which requires a dismissal of abatement
for 30 days.
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/29/2015 4:53:28 PM.****2. Plaintiff as a non resident of Florida is required to post a non
resident bond within 20 days of the filing of this notice or the case must be
dismissed or abated. See Florida Statutes 57.11.
3. Count | of the Complaint should be dismissed in that:
a. The note was signed by the defendant according to the
complaint to an "Payee named thereon". There is no allegation how this Plaintiff
acquired the note or mortgage. Hence, Plaintiff lacks standing to bring the action.
Plaintiff attaches to the complaint a defective assignment of Mortgage. Plaintiff
fails to allege that a proper assignment, if any, was in place prior to filing suit.
b. In the alternative, the complaint and exhibits are in conflict
since the complaint alleges the plaintiff is the owner but the documents attached
list a "Chase Bank USA.”, as the owner.
c. There is no allegation that the Plaintiff has been properly
assigned the note or mortgage. The attachments to the complaint reflect a
different owner. There is no allegation or attachment to show that the Plaintiff is
the owner of the note or mortgage. Since the Courts require all necessary
documents to be attached, the complaint is defective for failure to allege a chain
of ownership and to attach recorded assignments of the mortgage and note
violates Fla Rule Civ Pro 1.130.
d. The Note has an undated endorsement from Chase Bank
USA, the original lender, in blank. There is an Assignment of Mortgage but the
assignment does not Transfer the Note. There is no proof the Assignmentintended to transfer the note to any particular party nor does it show a valid
transfer of th note prior to filing of the lawsuit.
e. any flow of the chain of ownership is invalid and cannot be corrected
and fails to state a proper cause of action.
f. The plaintiffs complaint has violated 702.015(4) 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. The certification must set forth the location of the note, the
name and title of the individual giving the certification, the name of the person
who personally verified such possession, and the time and date on which the
possession was verified. Correct copies of the note and all allonges to the note
must be attached to the certification. The original note and the allonges must be
filed with the court before the entry of any judgment of foreclosure or judgment
on the note. In this Case, the certification is made by a purported servicer who
may not eablish through business records the representation the company he
represents is authorized to possess the note and is capable of representing
himself as the plaintiff. Select portfolio Servicing is not in possession of the note.
4. Plaintiff has failed to assert the amount of interest being sought and
therefore, the complaint is deficient for failure to allege ultimate facts for relief
sought.
5. There is no allegation of the legal basis for attorney fees as there is
no allegation of a contractual obligation by the Defendants.6.
In the alternative to a dismissal, the Plaintiff should be ordered to
provide a more definite statement of the complaint for the reasons set forth
above.
WHEREFORE, the good cause shown, Defendants, respectfully requests
this Honorable Court to Grant:
a.
b.
To abate the action for 30 days;
Dismiss the complaint;
strike the demand for attorney fees;
Order a more definite statement;
Order an indemnity bond;
Join "The payee named theron", or provide proof of assignment
prior to suit filed by an amended complaint;
Order a copy of the note be attached;
Grant Defendant's attorney fees; and
Any other relief this Court deems proper and just.
Respectfully submitted,
/S/ Samuel D. Lopez
Samuel D. Lopez, P.A.
Attorney for Defendants
Flamingo Falls Professional Center
1806 N Flamingo Road, Suite 331
Pembroke Pines, Florida 33028
Tel: (954) 523-8565
Fax:(954) 523-0850
Email: sam@samlopezpa.comCERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy of the foregoing has been delivered to
Andrew s. Kanter, Esq., Albertelli Law, P.O. Box 23028, Tampa, FL 33623 and
via email to servealaw@albertellilaw.com on this 29" day of September, 2015.
By:_/S/ Samuel D. Lopez
Samuel Lopez, Esq.
Fla. Bar No.: 102458
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Filing # 32637777 E-Filed 09/29/2015 04:53:28 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICAL CIRCUIT IN AND FOR BROWARD COUNTY DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE J.P. MORGAN MORTGAGE ACQUISITION TRUST 2007-CH2 ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-CH2, Plaintiff, Case: CACE-15-012805 v. HARRY J. STANFIELD, et. al. Defendant (s), DEFENDANT'S MOTION TO DISMISS COMPLAINT COMES NOW, the Defendants HARRY J. STANFIELD (“Defendants”) by and through the undersigned counsel, pursuant to Rule 1.140 of the Fla. Rul. Civ. Pro. hereby files this Motion to Dismiss Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE J.P. MORGAN MORTGAGE ACQUISITION TRUST 2007-CH2 ASSET BACKED PASS- THROUGH CERTIFICATES, SERIES 2007-CH2 (‘“Defendant”)'s Complaint, to abate the action, for more definite Statement, to strike and allege the following: 1. This Complaint should be abated or dismissed as the Fair Debt Collection Notice was not provided. Since Plaintiff did not serve the notice of acceleration and fair Debt letter at least 30 days before the complaint was filed, there is a failure of conditions precedent which requires a dismissal of abatement for 30 days. *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/29/2015 4:53:28 PM.****2. Plaintiff as a non resident of Florida is required to post a non resident bond within 20 days of the filing of this notice or the case must be dismissed or abated. See Florida Statutes 57.11. 3. Count | of the Complaint should be dismissed in that: a. The note was signed by the defendant according to the complaint to an "Payee named thereon". There is no allegation how this Plaintiff acquired the note or mortgage. Hence, Plaintiff lacks standing to bring the action. Plaintiff attaches to the complaint a defective assignment of Mortgage. Plaintiff fails to allege that a proper assignment, if any, was in place prior to filing suit. b. In the alternative, the complaint and exhibits are in conflict since the complaint alleges the plaintiff is the owner but the documents attached list a "Chase Bank USA.”, as the owner. c. There is no allegation that the Plaintiff has been properly assigned the note or mortgage. The attachments to the complaint reflect a different owner. There is no allegation or attachment to show that the Plaintiff is the owner of the note or mortgage. Since the Courts require all necessary documents to be attached, the complaint is defective for failure to allege a chain of ownership and to attach recorded assignments of the mortgage and note violates Fla Rule Civ Pro 1.130. d. The Note has an undated endorsement from Chase Bank USA, the original lender, in blank. There is an Assignment of Mortgage but the assignment does not Transfer the Note. There is no proof the Assignmentintended to transfer the note to any particular party nor does it show a valid transfer of th note prior to filing of the lawsuit. e. any flow of the chain of ownership is invalid and cannot be corrected and fails to state a proper cause of action. f. The plaintiffs complaint has violated 702.015(4) 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. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note. In this Case, the certification is made by a purported servicer who may not eablish through business records the representation the company he represents is authorized to possess the note and is capable of representing himself as the plaintiff. Select portfolio Servicing is not in possession of the note. 4. Plaintiff has failed to assert the amount of interest being sought and therefore, the complaint is deficient for failure to allege ultimate facts for relief sought. 5. There is no allegation of the legal basis for attorney fees as there is no allegation of a contractual obligation by the Defendants.6. In the alternative to a dismissal, the Plaintiff should be ordered to provide a more definite statement of the complaint for the reasons set forth above. WHEREFORE, the good cause shown, Defendants, respectfully requests this Honorable Court to Grant: a. b. To abate the action for 30 days; Dismiss the complaint; strike the demand for attorney fees; Order a more definite statement; Order an indemnity bond; Join "The payee named theron", or provide proof of assignment prior to suit filed by an amended complaint; Order a copy of the note be attached; Grant Defendant's attorney fees; and Any other relief this Court deems proper and just. Respectfully submitted, /S/ Samuel D. Lopez Samuel D. Lopez, P.A. Attorney for Defendants Flamingo Falls Professional Center 1806 N Flamingo Road, Suite 331 Pembroke Pines, Florida 33028 Tel: (954) 523-8565 Fax:(954) 523-0850 Email: sam@samlopezpa.comCERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing has been delivered to Andrew s. Kanter, Esq., Albertelli Law, P.O. Box 23028, Tampa, FL 33623 and via email to servealaw@albertellilaw.com on this 29" day of September, 2015. By:_/S/ Samuel D. Lopez Samuel Lopez, Esq. Fla. Bar No.: 102458