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“* FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 8/22/2013 8:35:01 AM.****
Electronically Filed 08/22/2013 08:36:04 AM ET
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
JPMORGAN CHASE BANK, N.A., CASE NO.: CACE 12-035025
Plaintiff, 7 a
Vv.
SUSAN M. KIPTA, ef al.,
Defendant(s).
/
MOTION TO DISMISS FORECLOSURE PROCEEDINGS
COMES NOW, Defendant, SUSAN M. KIPTA, (hereinafter Defendant), by and through
its undersigned counsel, and. hereby moves this Honorable Court to Dismiss the Foreclosure
Proceedings based upon the argument set forth below:
1. On or about December 19, 2012, the Plaintiff, JEPMORGAN CHASE BANK, N.A.,
(hereinafter Plaintiff) filed its Complaint for Foreclosure.
2. The Defendant hereby files this Motion to Dismiss in response to the Plaintiff's
Complaint for Foreclose.
I. STANDARD FOR GRANTING A MOTION TO DISMISS
In order to state a cause of action, a pleading must contain a short and plaint statement of
the ultimate facts showing that the pleader is entitled to relief, Bliss Zi Carmona, 418 So.2d
1017, 1019 (Fla. 3d DCA 1982). A cause of action “does not consist of facts, but of an unlawful
violation of a right which facts show.” Luckie v. McCall Mfg. Co. Inc., 153 So. 2d 311 (Fla. Ist
DCA 1963). It is well established that pleading conclusions of law without ultimate facts is
legally insufficient. See Bliss, 418 So. 2d at 1019 (Fla. 3d DCA 1982) citing, Zito v. Washington
Federal Savings & Loan Association of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975). A
Page 1 of 7
Jonathan Kline, P.A. @ Attorney at Law ;
2761 Executive Park Drive ¢ Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimile: (954) 888-4647
Email: emailservice@jklawfl.comcomplaint must allege sufficient ultimate facts to show that the Pleaders are entitled to relief, and
‘a court deciding a motion to dismiss must “review the four corners of the complaint and the
applicable law to determine whether it states a cognizable cause of action.” Rentas v.
- DaimlerChrysler Corp., 936 So. 2d 747, 749 (Fla. 4th DCA 2006). ,
Il. ARGUMENT
a. Failure to Attach Documents
Fla. R. Civ. P. Rule 1.130(a) requires a Plaintiff to attach copies of all bonds, notes, bills
of exchange, contracts, accounts, or documents upon which action may be brought and which are
material to the pleadings. Rule 1.420(b) provides that “[aJny party may move for dismissal of
action or of any claim against that party for failure of an adverse party to comply with these
, rules, Failure to comply with Rule 1.130(a) is proper grounds for dismissal. See Jeff-Ray Corp. v.
"Jacobson, 566 So. 2d 885 (Fla. 4th DCA 1990) citing Safeco Insurance Co. v. Ware, 401 So. 2d
1129 (Fla. 4th DCA 1981).
Plaintiff failed to attach to the Complaint a copy of all assignments of the Mortgage to
substantiate its ownership. The existence and validity of said assignments and/or merger
documents are material because it establishes chain of title and is an attempt by the Plaintiff to
ultimately establish a cause of action. Plaintiff failed to comply with Rule 1.130(a) as the
assignment and/or merger documents are not attached as an exhibit to the Complaint.
b. Lack of Standing
The Plaintiff in the above-style captioned lawsuit never had standing to initiate this
lawsuit. A crucial element in any mortgage foreclosure proceeding is that the party seeking
foreclosure must demonstrate that it has standing to foreclose at the inception of the lawsuit. See
Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010); Verizzo v. Bank of N.Y., 28 So.3d
Page 2 of 7
Jonathan Kline, P.A. © Attorney at Law
2761 Executive Park Drive ¢ Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimite: (954) 888-4647
Email: emailservice@jklawfl.com976, 978 (Fla. 2d DCA 2010); Philogene v. ABN Amro Mortg. Group Inc., 948 So.2d 45, 46 (Fla.
4th DCA 2006). Standing may be established by either an assignment or an equitable transfer of
: the mortgage prior to the filing of the complaint (emphasis added). See WM Specialty Morig.,
LLC v. Salomon, 874 So.2d 680; 682-83 (Fla. 4th DCA 2004). “The lack of standing at the‘;
inception of the case is not a defect that may be cured by the acquisition of standing after the
case is filed.” See Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281,
1285 (Fla. 2d DCA 2005) Thus, a party is not permitted to establish the right to maintain an
action retroactively by acquiring standing to file a lawsuit after the fact. Id.
In the case at bar, the attachments to Plaintiff's Complaint to Foreclose list the iender as |
Home Loan Center, Inc., dba Lending ‘Tree Loans. However, there are no assignments from
Home Loan Center, Inc., dba Lending Tree Loans to Plaintiff herein. Further, the note in
question contains an endorsement from Home Loan Center, Inc., dba Lending Tree Loans to Jp
Morgan Chase Bank, N.A. and a a endorsement from Jp Morgan ae Bank, N.A.
_ However, said blank endorsement does not indicate the assignee and no corresponding
assignment of mortgage has been attached to the Complaint to indicate the date of transfer.
Therefore, Plaintiff fails to evidence its interest in this note and mortgage as the last assignee in
any way and that it ever had standing at the time the lawsuit was filed. Plaintiff cannot remedy
this deficiency, thereby causing its complaint to be dismissed.
ec. Failure to Comply with Fla. Stat. § 57.011
Florida Statute § 57.011 states that “[w]hen a nonresident plaintiff begins an action . . .
he or she shall file a bond with surety to be approved by the clerk of $100 . . . [o]n failure to file
such bond within 30 days after such commencement or such removal, the defendant may, after
20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the
Page 3 of 7
Jonathan Kline, P.A. @ Attorney at Law
2761 Executive Park Drive © Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimile: (954) 888-4647
Email: emailservice@jklawfl.comaction or may hold the attorney bringing or prosecuting the action liable for said costs and if they
are adjudged against plaintiff, an execution shall issue against said attorney.” Plaintiff is a
foreign corporation falling within the purview of the aforementioned statute and is in breach of
the same. This defense constitutes the requisite statutory notice for which, failure to comply can
result ina subsequent dismissal.
d. Failure to Comply with Condition Precedent
The Plaintiff failed to comply with Paragraph 22 of the Mortgage. Pursuant to Paragraph
22 of the Mortgage, the Plaintiff was required to deliver a “Notice of Acceleration” letter to the
Paragraph 22 of the Mortgage which reads as follows:
NON-UNIFORM COVENANTS. Borrower and Lender further
covenant and agree as follows:
|
|
t
|
! 22. Acceleration; Remedies. Lender shall give notice to
: Borrower prior to acceleration following Borrower’s breach of any
covenant or agreement in this Security Instrument (but not prior to
acceleration under Section 18 unless. Applicable Law provides '
otherwise). The notice shall specify: (a) the default; (b) the action
| required to cure the default; (c) a date, not less than 30 days from
| the date the notice is given to Borrower, by which the default must
be cured; and (d) that failure to cure the default on or before the
| date specified in the notice may result in acceleration of the sums
: secured by this Security Instrument, foreclosure by judicial
| proceeding and sale of the Property. The notice shall further
| inform Borrower of the right to reinstate after acceleration and the
right to assert in the foreclosure preceding the non-existence of a
| default or any other defense of Borrower to acceleration and
| foreclosure. If the default is not cured on or before the date
t specified in the notice, Lender at its option may require immediate
| payment in full of all sums secured by this Security Instrument
: : without further demand and may foreclose this Security Instrument
: : by judicial proceeding. Lender shall be entitled to collect all
' expenses incurred in pursuing the remedies provided in this
Section 22, including, but not limited to, reasonable attorneys’ fees
and costs of title evidence.
! Page 4 of 7
i Jonathan Kline, P.A. ¢ Attorney at Law
i 2761 Executive Park Drive © Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimile: (954) 888-4647
Email: emailservice@jklawfl.com
’ Borrower at least thirty (30) days prior to the filing of the Mortgage Foreclosure action. : .The First District Court of Appeals in Southeast Land. Developers, Inc., v. All Fla, Site
" and Util, Inc., 28 So. 3d 166 (Fla. 1st DCA 2010) held:
A default judgment is void and should be set aside when the
complaint fails to state a cause of action, See Moynet v. Courtois,
8 So. 3d 377, 378-79 (Fla. 3d DCA 2009) (citing Becerra v. Equity
Imports, Inc., 551 So. 2d 486 (Fla. 3d DCA 1989), and Ginsberg v.
Lennar Fla. Holdings, Inc., 645 So. 2d 490, 493 (Fla. 3d DCA
1994)); GAC Corp. v. Beach, 308 So. 2d 550 (Fla. 2d DCA1975);
see generally Hooters of America, Inc. v. Carolina Wings, Inc., 655
So. 2d 1231 (Fla.1st DCA 1995) (damages award barred on default
judgment violated due process due to lack of well-pled allegations
in complaint). Failure to allege that conditions precedent are met
renders a complaint fatally defective in that it fails to state a cause
of action. Nguyen‘v. Roth Realty, Inc., 550'So. 2d 490 (Fla. Sth
DCA 1989). However, “[iJn pleading the performance or
occurrence of conditions precedent, it is sufficient to aver generally
that all conditions precedent have been performed or have
occurred.” Fla.R.Civ.P. § 1.120(c).
In the instant case, the contract contained several conditions
precedent to the Subcontractor receiving payment, yet the
complaint made no allegation, specific or general, with regard to
these conditions precedent, only that money was "due and owing.”
An allegation that a debt is unpaid is not sufficient. See Hubbard v.
Tebbetts, 76 So. 2d 280, 282 (Fla. 1954). As such, the complaint
failed to state a claim, and the default judgment is void.
Appellee argues that the judgment is not subject to challenge via a
* rule 1.540 motion. Appellee relies on Curbelo v. Ullman, 571 So.
2d 443 (Fla. 1990), where the court noted that a judgment is not
void due to errors or irregularities in proceedings where the court
is legally organized, has jurisdiction, and the parties are given an
opportunity to be heard. The Curbelo court held that a judgment
was not void for failure to provide a jury trial on damages where
the right to a jury trial was not waived. Curbelo, 571 So. 2d at 444-
45. Here, the default judgment is void, not based on any procedural
errors or irregularities, but on a fatally defective complaint. The
language in Curbelo has not been extended or read to mean that a
judgment based upon a complaint which failed to state a claim is
not void. We hold that because the default judgment was void
in that it was based on a complaint which failed to state a
claim, the trial court abused its discretion in failing to grant
Appellant's motion to set aside the judgment. We therefore
Page 5 of 7
Jonathan Kline, P.A. © Attorney at Law
2761 Executive Park Drive @ Weston, Florida 33331 © Telephone: (954) 888-4646 @ Facsimile: (954) 888-4647
Email: emailservice@jkiawfl.comreverse and remand for proceedings consistent with this
opinion.
Further, the Fourth District Court of Appeal held, a bank’s failure to comply with all
. conditions precedent to acceleration, ic. a “[bJank’s failure to send, and appellant’s failure to
receive, the notices that are a condition precedent to acceleration” is grounds for reversing
Summary Judgment. Acosta, 4D10-3835 at 3 (Fla. 4th DCA May 16, 2012)(emphasis added);
See 5" Avenue Real Estate Development, Inc. v. Aeacus Real Estate Limited Partnership, 876
So. 2d 1220, 1222 (Fla. 4th DCA 2004).
The Notice of Acceleration is a condition precedent as set forth in Paragraph 22 of od
Mortgage. In addition, it must comply with all conditions of Paragraph 22 of the Mortgage as set
forth above. The Plaintiff's failure to comply with the terms and conditions as set forth in
Paragraph 22 of the Mortgage renders the Complaint as an improperly pled Complaint and any
‘subsequent action taken by this Court pursuant to the Complaint would violate due process due
to a lack of well-pled allegations in the Complaint. Any failure to comply with all conditions
precedent would render the Plaintiff's cause of action fatally defective.
IN. CONCLUSION
WHEREFORE, the Defendant, respectfully requests that this Honorable Court dismiss
' the.complaint and any further relief that this Court deems is just and proper.
[Remainder of Page Left Intentionally Blank]
Page 6 of 7
Jonathan Kline, P,A, @ Attorney at Law
2761 Executive Park Drive ¢ Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimile: (954) 888-4647
Email: emailservice@jktawfl.comCERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished this De
day of August, 2013 via Email to: Edward B. Pritchard, Esq.; Kass Shuler, PA. Attorneys for Plaintiff,
at ForeclosureService@kasslaw.com.
Pursuant to Fla, R. Jud. Admin. 2.516(b)(1)(A), Defendant’s
counsel hereby designates its primary email address for the
purposes of email service as: emailservice@jklawfl.com
JONATHAN KLINE, P.A.
Attorneys for the Defendant(s)
2761 Executive Park Drive
Weston, FL 33331
Telephone: (954) 888-4646
Facsimile: (954) 888-4647
Service E-mail address: emailservice@jklawfl.com
or fa elros
o Jonathan Kline, Esq.
Florida Bar No.: 6092
o Stephanie M. Taylor, Esq.
Florida Bar No.: 91233
& Paula A. Velazquez, Esq.
Florida Bar No.: 96159
Et Page 7 of 7
Jonathan Kline, P.A. ¢ Attorney at Law
2761 Executive Park Drive © Weston, Florida 33331 Telephone: (954) 888-4646 © Facsimile: (954) 888-4647
Email: emailservice@jktawfl.com
Preview
“* FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 8/22/2013 8:35:01 AM.**** Electronically Filed 08/22/2013 08:36:04 AM ET IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JPMORGAN CHASE BANK, N.A., CASE NO.: CACE 12-035025 Plaintiff, 7 a Vv. SUSAN M. KIPTA, ef al., Defendant(s). / MOTION TO DISMISS FORECLOSURE PROCEEDINGS COMES NOW, Defendant, SUSAN M. KIPTA, (hereinafter Defendant), by and through its undersigned counsel, and. hereby moves this Honorable Court to Dismiss the Foreclosure Proceedings based upon the argument set forth below: 1. On or about December 19, 2012, the Plaintiff, JEPMORGAN CHASE BANK, N.A., (hereinafter Plaintiff) filed its Complaint for Foreclosure. 2. The Defendant hereby files this Motion to Dismiss in response to the Plaintiff's Complaint for Foreclose. I. STANDARD FOR GRANTING A MOTION TO DISMISS In order to state a cause of action, a pleading must contain a short and plaint statement of the ultimate facts showing that the pleader is entitled to relief, Bliss Zi Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982). A cause of action “does not consist of facts, but of an unlawful violation of a right which facts show.” Luckie v. McCall Mfg. Co. Inc., 153 So. 2d 311 (Fla. Ist DCA 1963). It is well established that pleading conclusions of law without ultimate facts is legally insufficient. See Bliss, 418 So. 2d at 1019 (Fla. 3d DCA 1982) citing, Zito v. Washington Federal Savings & Loan Association of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975). A Page 1 of 7 Jonathan Kline, P.A. @ Attorney at Law ; 2761 Executive Park Drive ¢ Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimile: (954) 888-4647 Email: emailservice@jklawfl.comcomplaint must allege sufficient ultimate facts to show that the Pleaders are entitled to relief, and ‘a court deciding a motion to dismiss must “review the four corners of the complaint and the applicable law to determine whether it states a cognizable cause of action.” Rentas v. - DaimlerChrysler Corp., 936 So. 2d 747, 749 (Fla. 4th DCA 2006). , Il. ARGUMENT a. Failure to Attach Documents Fla. R. Civ. P. Rule 1.130(a) requires a Plaintiff to attach copies of all bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought and which are material to the pleadings. Rule 1.420(b) provides that “[aJny party may move for dismissal of action or of any claim against that party for failure of an adverse party to comply with these , rules, Failure to comply with Rule 1.130(a) is proper grounds for dismissal. See Jeff-Ray Corp. v. "Jacobson, 566 So. 2d 885 (Fla. 4th DCA 1990) citing Safeco Insurance Co. v. Ware, 401 So. 2d 1129 (Fla. 4th DCA 1981). Plaintiff failed to attach to the Complaint a copy of all assignments of the Mortgage to substantiate its ownership. The existence and validity of said assignments and/or merger documents are material because it establishes chain of title and is an attempt by the Plaintiff to ultimately establish a cause of action. Plaintiff failed to comply with Rule 1.130(a) as the assignment and/or merger documents are not attached as an exhibit to the Complaint. b. Lack of Standing The Plaintiff in the above-style captioned lawsuit never had standing to initiate this lawsuit. A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose at the inception of the lawsuit. See Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010); Verizzo v. Bank of N.Y., 28 So.3d Page 2 of 7 Jonathan Kline, P.A. © Attorney at Law 2761 Executive Park Drive ¢ Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimite: (954) 888-4647 Email: emailservice@jklawfl.com976, 978 (Fla. 2d DCA 2010); Philogene v. ABN Amro Mortg. Group Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006). Standing may be established by either an assignment or an equitable transfer of : the mortgage prior to the filing of the complaint (emphasis added). See WM Specialty Morig., LLC v. Salomon, 874 So.2d 680; 682-83 (Fla. 4th DCA 2004). “The lack of standing at the‘; inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed.” See Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1285 (Fla. 2d DCA 2005) Thus, a party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact. Id. In the case at bar, the attachments to Plaintiff's Complaint to Foreclose list the iender as | Home Loan Center, Inc., dba Lending ‘Tree Loans. However, there are no assignments from Home Loan Center, Inc., dba Lending Tree Loans to Plaintiff herein. Further, the note in question contains an endorsement from Home Loan Center, Inc., dba Lending Tree Loans to Jp Morgan Chase Bank, N.A. and a a endorsement from Jp Morgan ae Bank, N.A. _ However, said blank endorsement does not indicate the assignee and no corresponding assignment of mortgage has been attached to the Complaint to indicate the date of transfer. Therefore, Plaintiff fails to evidence its interest in this note and mortgage as the last assignee in any way and that it ever had standing at the time the lawsuit was filed. Plaintiff cannot remedy this deficiency, thereby causing its complaint to be dismissed. ec. Failure to Comply with Fla. Stat. § 57.011 Florida Statute § 57.011 states that “[w]hen a nonresident plaintiff begins an action . . . he or she shall file a bond with surety to be approved by the clerk of $100 . . . [o]n failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the Page 3 of 7 Jonathan Kline, P.A. @ Attorney at Law 2761 Executive Park Drive © Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimile: (954) 888-4647 Email: emailservice@jklawfl.comaction or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.” Plaintiff is a foreign corporation falling within the purview of the aforementioned statute and is in breach of the same. This defense constitutes the requisite statutory notice for which, failure to comply can result ina subsequent dismissal. d. Failure to Comply with Condition Precedent The Plaintiff failed to comply with Paragraph 22 of the Mortgage. Pursuant to Paragraph 22 of the Mortgage, the Plaintiff was required to deliver a “Notice of Acceleration” letter to the Paragraph 22 of the Mortgage which reads as follows: NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: | | t | ! 22. Acceleration; Remedies. Lender shall give notice to : Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless. Applicable Law provides ' otherwise). The notice shall specify: (a) the default; (b) the action | required to cure the default; (c) a date, not less than 30 days from | the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the | date specified in the notice may result in acceleration of the sums : secured by this Security Instrument, foreclosure by judicial | proceeding and sale of the Property. The notice shall further | inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure preceding the non-existence of a | default or any other defense of Borrower to acceleration and | foreclosure. If the default is not cured on or before the date t specified in the notice, Lender at its option may require immediate | payment in full of all sums secured by this Security Instrument : : without further demand and may foreclose this Security Instrument : : by judicial proceeding. Lender shall be entitled to collect all ' expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence. ! Page 4 of 7 i Jonathan Kline, P.A. ¢ Attorney at Law i 2761 Executive Park Drive © Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimile: (954) 888-4647 Email: emailservice@jklawfl.com ’ Borrower at least thirty (30) days prior to the filing of the Mortgage Foreclosure action. : .The First District Court of Appeals in Southeast Land. Developers, Inc., v. All Fla, Site " and Util, Inc., 28 So. 3d 166 (Fla. 1st DCA 2010) held: A default judgment is void and should be set aside when the complaint fails to state a cause of action, See Moynet v. Courtois, 8 So. 3d 377, 378-79 (Fla. 3d DCA 2009) (citing Becerra v. Equity Imports, Inc., 551 So. 2d 486 (Fla. 3d DCA 1989), and Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 493 (Fla. 3d DCA 1994)); GAC Corp. v. Beach, 308 So. 2d 550 (Fla. 2d DCA1975); see generally Hooters of America, Inc. v. Carolina Wings, Inc., 655 So. 2d 1231 (Fla.1st DCA 1995) (damages award barred on default judgment violated due process due to lack of well-pled allegations in complaint). Failure to allege that conditions precedent are met renders a complaint fatally defective in that it fails to state a cause of action. Nguyen‘v. Roth Realty, Inc., 550'So. 2d 490 (Fla. Sth DCA 1989). However, “[iJn pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.” Fla.R.Civ.P. § 1.120(c). In the instant case, the contract contained several conditions precedent to the Subcontractor receiving payment, yet the complaint made no allegation, specific or general, with regard to these conditions precedent, only that money was "due and owing.” An allegation that a debt is unpaid is not sufficient. See Hubbard v. Tebbetts, 76 So. 2d 280, 282 (Fla. 1954). As such, the complaint failed to state a claim, and the default judgment is void. Appellee argues that the judgment is not subject to challenge via a * rule 1.540 motion. Appellee relies on Curbelo v. Ullman, 571 So. 2d 443 (Fla. 1990), where the court noted that a judgment is not void due to errors or irregularities in proceedings where the court is legally organized, has jurisdiction, and the parties are given an opportunity to be heard. The Curbelo court held that a judgment was not void for failure to provide a jury trial on damages where the right to a jury trial was not waived. Curbelo, 571 So. 2d at 444- 45. Here, the default judgment is void, not based on any procedural errors or irregularities, but on a fatally defective complaint. The language in Curbelo has not been extended or read to mean that a judgment based upon a complaint which failed to state a claim is not void. We hold that because the default judgment was void in that it was based on a complaint which failed to state a claim, the trial court abused its discretion in failing to grant Appellant's motion to set aside the judgment. We therefore Page 5 of 7 Jonathan Kline, P.A. © Attorney at Law 2761 Executive Park Drive @ Weston, Florida 33331 © Telephone: (954) 888-4646 @ Facsimile: (954) 888-4647 Email: emailservice@jkiawfl.comreverse and remand for proceedings consistent with this opinion. Further, the Fourth District Court of Appeal held, a bank’s failure to comply with all . conditions precedent to acceleration, ic. a “[bJank’s failure to send, and appellant’s failure to receive, the notices that are a condition precedent to acceleration” is grounds for reversing Summary Judgment. Acosta, 4D10-3835 at 3 (Fla. 4th DCA May 16, 2012)(emphasis added); See 5" Avenue Real Estate Development, Inc. v. Aeacus Real Estate Limited Partnership, 876 So. 2d 1220, 1222 (Fla. 4th DCA 2004). The Notice of Acceleration is a condition precedent as set forth in Paragraph 22 of od Mortgage. In addition, it must comply with all conditions of Paragraph 22 of the Mortgage as set forth above. The Plaintiff's failure to comply with the terms and conditions as set forth in Paragraph 22 of the Mortgage renders the Complaint as an improperly pled Complaint and any ‘subsequent action taken by this Court pursuant to the Complaint would violate due process due to a lack of well-pled allegations in the Complaint. Any failure to comply with all conditions precedent would render the Plaintiff's cause of action fatally defective. IN. CONCLUSION WHEREFORE, the Defendant, respectfully requests that this Honorable Court dismiss ' the.complaint and any further relief that this Court deems is just and proper. [Remainder of Page Left Intentionally Blank] Page 6 of 7 Jonathan Kline, P,A, @ Attorney at Law 2761 Executive Park Drive ¢ Weston, Florida 33331 © Telephone: (954) 888-4646 © Facsimile: (954) 888-4647 Email: emailservice@jktawfl.comCERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished this De day of August, 2013 via Email to: Edward B. Pritchard, Esq.; Kass Shuler, PA. Attorneys for Plaintiff, at ForeclosureService@kasslaw.com. Pursuant to Fla, R. Jud. Admin. 2.516(b)(1)(A), Defendant’s counsel hereby designates its primary email address for the purposes of email service as: emailservice@jklawfl.com JONATHAN KLINE, P.A. Attorneys for the Defendant(s) 2761 Executive Park Drive Weston, FL 33331 Telephone: (954) 888-4646 Facsimile: (954) 888-4647 Service E-mail address: emailservice@jklawfl.com or fa elros o Jonathan Kline, Esq. Florida Bar No.: 6092 o Stephanie M. Taylor, Esq. Florida Bar No.: 91233 & Paula A. Velazquez, Esq. Florida Bar No.: 96159 Et Page 7 of 7 Jonathan Kline, P.A. ¢ Attorney at Law 2761 Executive Park Drive © Weston, Florida 33331 Telephone: (954) 888-4646 © Facsimile: (954) 888-4647 Email: emailservice@jktawfl.com