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Filing # 37146434 E-Filed 01/28/2016 03:44:44 PM
FEDERAL NATIONAL MORTGAGE ASSOCIATION, IN THE CIRCUIT COURT OF THE
Plaintiff, 17TH JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
ei CIVIL DIVISION
RICHARD C. PERITZ, et al., CASE NO.: CACE15012905
Defendants.
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS
COMES NOW, Plaintiff, by and through its undersigned counsel, and hereby files its Reply to the Motion
to Dismiss of Defendant(s), MELISSA MORELOCK, and would state:
Procedural Background
That on or about July 17, 2015, Plaintiff filed its Complaint, initiating the present action.
That on or about January 13, 2016, Defendants filed a Motion to Dismiss.
Standard of Review
“When presented with a motion to dismiss for failure to state a cause of action, a trial court is required to
treat the factual allegations of the complaint as true and to consider those allegations in the light most
favorable to the Plainfiffs.” Siegle v. Progressive Consumers Insurance Company, 819 So.2d 732 (2002).
“Court, in ruling on motion to dismiss complaint for failure to state a cause of action, must confine itself
strictly to allegations within four corners of the complaint. R. Civ. P. 1.110.” Pizzi v. Central Bank and
Trust Co., 250 So.2d 895 (Fla. 1971).
As this Court noted long ago, “a court may not properly go beyond the four corners of the allegations of the
complaint when considering a motion to dismiss it.” Thomas v. Rollins, 298 So.2d 186, 187 (Fla. Ist DCA
1974). One of the most important principles for a court to keep in mind is to confine its review strictly to
the “allegations of fact contained in the complaint” and to not speculate as to what the true facts may be or
what facts will be ultimately proved in the trial of the cause. Thomas Id. While a court may examine the
allegations in the “complaint and any attached documents incorporated therein,” the “question of the
sufficiency of the evidence which the plaintiff will likely be able to produce in a hearing on the merits, is
wholly irrelevant and immaterial in reaching such a determination.” Thomas Id. at 187-88.
Argument
Plaintiff hereby denies Defendant’s assertion related to Plaintiff's failure to provide notice, pursuant to
Section 559.715, Florida Statutes, of the assignment of the mortgage and note. Section 559.715 does not
provide a civil remedy or affirmative defense to foreclosure for any violations of its notice requirements.
“Plaintiff attempts to avoid the statutory scheme by alleging. . violation of Section 559.715 constitutes an
unlawful attempt to enforce a debt. . .The Plaintiff fails to show a legislative intent to provide a civil
15-00977
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 1/28/2016 3:44:44 PM.****remedy for violation of the notice provision.” Thomas v. Commercial Recovery Systems, Inc., 2008 WL
5246296 (M.D. Fla. 2008). Further, section 559,715 is only applicable to the collection of consumer debts
and does not apply to the foreclosure of a mortgage and note. Section 559.715 clearly states: “Assignment
of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect
a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30
days after the assignment, The assignee is a real party in interest and may bring an action in a court of
competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.” Plaintiff
was the purchaser of the note and, as such, does not fit within this statute. This statute applies to the
scenario where the right to bill and collect a consumer debt is sold to a collection agency and the mortgage
states that the note can be sold one or more times without notice to the borrower. For these reasons this
defense fails as a matter of law and is not a basis for a motion to dismiss.
7. Plaintiff hereby denies Defendant’s assertion of failure to post a non-resident cost bond. As a federal bank,
organized under the laws of the United States of America, Plaintiff is not a foreign corporation organized
under the laws of some other state, as defined by the statute and not a “non-resident” as contemplated under
Section 57.011, Florida Statutes. Waxman y. Schwartz, 458 So.2d 72 (Fla. 3d DCA 1984); Thompson v.
Grosslaub, 147 So. 861 (Fla. 1933); E, Auto Supply Co., Inc. v. Anchor Mortg, Servs., Inc., 502 So.2d 976
(Fla. 4" DCA 1987) and Wagner v. Uthoff, 846 So.2d 1177 (Fla. 2d DCA 2003). Furthermore, Section
57.011 requires that defendant give twenty (20) days notice to plaintiff and then move to dismiss the action
if plaintiff fails to file the bond or hold the attorney liable for defendant's costs if the costs are assessed to
plaintiff at the completion of the action. Based upon the foregoing, this defense fails as a matter of law and
is not a basis for a motion to dismiss.
8. Plaintiff hereby denies Defendant’s affirmative defense regarding Plaintiff's standing to file the instant
lawsuit. “No doctrine is better established than that possession of a note payable to bearer by an agent or
trustee is sufficient to sustain an action at law in his own name...If.a note is endorsed in blank, the court
never inquires into the right of the plaintiff, whether he sues in his own right or as trustee. Any person in
possession of the note may sue, and may in court, if necessary, fill up the blank and make it payable to
himself.” Gregory v. McNealy, 12 Fla. 578 (Fla 1868). The Florida Rules of Civil Procedure contain no
15-00977requirement that all supporting documents be attached to a foreclosure complaint. The allegations of the
ownership of the subject note and mortgage are the only required documents. Plaintiffs complaint made
those representations and Plaintiff is in possession of the original note and mortgage, both of which will be
surrendered to this Court at the final hearing or non-jury trial. Where a note secured by a mortgage is
transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to
the debt. Johns vy. Gillian, 184 So. 140 (Fla, 1938). In an action to foreclose a promissory note and
mortgage, plaintiff has to be the "holder" of the promissory note in order to be the real party in interest.
Harvey v. Deutsche Bank, 69 So.3d (Fla 4" DCA 201 1); Troupe v. Redner, 652 So.2d 394 (Fla 2d DCA
1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So, 856 (1896); Laing v. Gainey Builders, Inc., 184 So. 2d
897 (Fla Ist DCA 1966). Ifa negotiable instrument is payable to the bearer, the "holder" is the person or
entity in possession. Section 671.201(20), Florida Statutes. "Bearer" means the person in possession of an
instrument, document of title, or certificated security payable to bearer or indorsed in blank. Section
671.201(5), Florida Statutes. Since the original endorsed promissory note is in the possession of Plaintiff
this defense fails as a matter of law.
WHEREFORE, Plaintiff, having fully responded to the Defendant’s Motion to Dismiss, prays this Honorable
Court enter an order in its favor.
I HEREBY CERTIFY that a true copy of foregoing was delivered to the parties on the attached mailing list by
mail this 22, day of _January_ 2016.
By:
Verhonda Williams-Darrell, Esq.
Bar Number: 92607
Choice Legal Group, P.A.
P.O. Box 9908
Fort Lauderdale, Florida 33310-0908
Telephone:(954) 453-0365
Facsimile: (954) 771-6052
Toll Free: 1-800-441-2438
DESIGNATED PRIMARY EMAIL FOR SERVICE
PURSUANT TO FLA. R. JUD. ADMIN 2.516
eservice@clegalgroup.com
15-00977SERVICE LIST
Case No: CACE15012905
JOANN HENNESSEY, ESQ.
ATTORNEY FOR RICHARD C, PERITZ
3601 WEST COMMERCIAL BLVD., SUITE 18
FORT LAUDERDALE, FL 33309
CYNTHIA A. BURFIELD A/K/A CYNTHIA ANN BURFIELD
2651 N ROCK ISLAND RD, APT 210
MARGATE, FL 33063
UNKNOWN TENANT
3940 CORAL HILLS DR
CORAL SPRINGS, FL 33065
15-00977
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Filing # 37146434 E-Filed 01/28/2016 03:44:44 PM FEDERAL NATIONAL MORTGAGE ASSOCIATION, IN THE CIRCUIT COURT OF THE Plaintiff, 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA ei CIVIL DIVISION RICHARD C. PERITZ, et al., CASE NO.: CACE15012905 Defendants. PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMES NOW, Plaintiff, by and through its undersigned counsel, and hereby files its Reply to the Motion to Dismiss of Defendant(s), MELISSA MORELOCK, and would state: Procedural Background That on or about July 17, 2015, Plaintiff filed its Complaint, initiating the present action. That on or about January 13, 2016, Defendants filed a Motion to Dismiss. Standard of Review “When presented with a motion to dismiss for failure to state a cause of action, a trial court is required to treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to the Plainfiffs.” Siegle v. Progressive Consumers Insurance Company, 819 So.2d 732 (2002). “Court, in ruling on motion to dismiss complaint for failure to state a cause of action, must confine itself strictly to allegations within four corners of the complaint. R. Civ. P. 1.110.” Pizzi v. Central Bank and Trust Co., 250 So.2d 895 (Fla. 1971). As this Court noted long ago, “a court may not properly go beyond the four corners of the allegations of the complaint when considering a motion to dismiss it.” Thomas v. Rollins, 298 So.2d 186, 187 (Fla. Ist DCA 1974). One of the most important principles for a court to keep in mind is to confine its review strictly to the “allegations of fact contained in the complaint” and to not speculate as to what the true facts may be or what facts will be ultimately proved in the trial of the cause. Thomas Id. While a court may examine the allegations in the “complaint and any attached documents incorporated therein,” the “question of the sufficiency of the evidence which the plaintiff will likely be able to produce in a hearing on the merits, is wholly irrelevant and immaterial in reaching such a determination.” Thomas Id. at 187-88. Argument Plaintiff hereby denies Defendant’s assertion related to Plaintiff's failure to provide notice, pursuant to Section 559.715, Florida Statutes, of the assignment of the mortgage and note. Section 559.715 does not provide a civil remedy or affirmative defense to foreclosure for any violations of its notice requirements. “Plaintiff attempts to avoid the statutory scheme by alleging. . violation of Section 559.715 constitutes an unlawful attempt to enforce a debt. . .The Plaintiff fails to show a legislative intent to provide a civil 15-00977 *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 1/28/2016 3:44:44 PM.****remedy for violation of the notice provision.” Thomas v. Commercial Recovery Systems, Inc., 2008 WL 5246296 (M.D. Fla. 2008). Further, section 559,715 is only applicable to the collection of consumer debts and does not apply to the foreclosure of a mortgage and note. Section 559.715 clearly states: “Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment, The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.” Plaintiff was the purchaser of the note and, as such, does not fit within this statute. This statute applies to the scenario where the right to bill and collect a consumer debt is sold to a collection agency and the mortgage states that the note can be sold one or more times without notice to the borrower. For these reasons this defense fails as a matter of law and is not a basis for a motion to dismiss. 7. Plaintiff hereby denies Defendant’s assertion of failure to post a non-resident cost bond. As a federal bank, organized under the laws of the United States of America, Plaintiff is not a foreign corporation organized under the laws of some other state, as defined by the statute and not a “non-resident” as contemplated under Section 57.011, Florida Statutes. Waxman y. Schwartz, 458 So.2d 72 (Fla. 3d DCA 1984); Thompson v. Grosslaub, 147 So. 861 (Fla. 1933); E, Auto Supply Co., Inc. v. Anchor Mortg, Servs., Inc., 502 So.2d 976 (Fla. 4" DCA 1987) and Wagner v. Uthoff, 846 So.2d 1177 (Fla. 2d DCA 2003). Furthermore, Section 57.011 requires that defendant give twenty (20) days notice to plaintiff and then move to dismiss the action if plaintiff fails to file the bond or hold the attorney liable for defendant's costs if the costs are assessed to plaintiff at the completion of the action. Based upon the foregoing, this defense fails as a matter of law and is not a basis for a motion to dismiss. 8. Plaintiff hereby denies Defendant’s affirmative defense regarding Plaintiff's standing to file the instant lawsuit. “No doctrine is better established than that possession of a note payable to bearer by an agent or trustee is sufficient to sustain an action at law in his own name...If.a note is endorsed in blank, the court never inquires into the right of the plaintiff, whether he sues in his own right or as trustee. Any person in possession of the note may sue, and may in court, if necessary, fill up the blank and make it payable to himself.” Gregory v. McNealy, 12 Fla. 578 (Fla 1868). The Florida Rules of Civil Procedure contain no 15-00977requirement that all supporting documents be attached to a foreclosure complaint. The allegations of the ownership of the subject note and mortgage are the only required documents. Plaintiffs complaint made those representations and Plaintiff is in possession of the original note and mortgage, both of which will be surrendered to this Court at the final hearing or non-jury trial. Where a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt. Johns vy. Gillian, 184 So. 140 (Fla, 1938). In an action to foreclose a promissory note and mortgage, plaintiff has to be the "holder" of the promissory note in order to be the real party in interest. Harvey v. Deutsche Bank, 69 So.3d (Fla 4" DCA 201 1); Troupe v. Redner, 652 So.2d 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So, 856 (1896); Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla Ist DCA 1966). Ifa negotiable instrument is payable to the bearer, the "holder" is the person or entity in possession. Section 671.201(20), Florida Statutes. "Bearer" means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. Section 671.201(5), Florida Statutes. Since the original endorsed promissory note is in the possession of Plaintiff this defense fails as a matter of law. WHEREFORE, Plaintiff, having fully responded to the Defendant’s Motion to Dismiss, prays this Honorable Court enter an order in its favor. I HEREBY CERTIFY that a true copy of foregoing was delivered to the parties on the attached mailing list by mail this 22, day of _January_ 2016. By: Verhonda Williams-Darrell, Esq. Bar Number: 92607 Choice Legal Group, P.A. P.O. Box 9908 Fort Lauderdale, Florida 33310-0908 Telephone:(954) 453-0365 Facsimile: (954) 771-6052 Toll Free: 1-800-441-2438 DESIGNATED PRIMARY EMAIL FOR SERVICE PURSUANT TO FLA. R. JUD. ADMIN 2.516 eservice@clegalgroup.com 15-00977SERVICE LIST Case No: CACE15012905 JOANN HENNESSEY, ESQ. ATTORNEY FOR RICHARD C, PERITZ 3601 WEST COMMERCIAL BLVD., SUITE 18 FORT LAUDERDALE, FL 33309 CYNTHIA A. BURFIELD A/K/A CYNTHIA ANN BURFIELD 2651 N ROCK ISLAND RD, APT 210 MARGATE, FL 33063 UNKNOWN TENANT 3940 CORAL HILLS DR CORAL SPRINGS, FL 33065 15-00977