On July 28, 2010 a
Motion,Ex Parte
was filed
involving a dispute between
Sea Coast National Bank,
and
City Of Port St Lucie,
Foster, Kevin,
Mackin, Thomas,
Mackin, Yvonne,
Unk Sp Kevin Foster,
Unk Sp Yvonne Mackin,
for NONHOMESTD MF $50,001-$249,999
in the District Court of St. Lucie County.
Preview
»
a
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR ST. LUCIE COUNTY, FLORIDA
SEACOAST NATIONAL BANK, f/k/a
FIRST NATIONAL BANK AND TRUST
COMPANY OF THE TREASURE COAST,
Plaintiff,
vs.
KEVIN D. FOSTER, a/k/a KEVIN FOSTER;
YVONNE MACKIN; THOMAS J. MACKIN,
SR.; THE UNKNOWN SPOUSE OF KEVIN
D. FOSTER, a/k/a KEVIN FOSTER; THE
UNKNOWN SPOUSE OF YVONNE MACKIN;
CITY OF PORT ST. LUCIE; JOHN DOE,
UNKNOWN TENANT; AND JANE DOE,
UNKNOWN TENANT, the names being
fictitious to account for parties in possession,
Defendants,
CASE NO.: 562010CA004087
JUDGE: Senior Judge
92 dsl
yee:
MOTION TO DISMISS
COMES NOW, the Defendants, KEVIN FOSTER, YVONNE MACKIN and THOMAS
J. MACKIN, by and through undersigned counsel, and hereby file this Motion to Dismiss, and as
grounds, therefore, state as follows:
1. This action was filed on or about July 27, 2010, seeking to foreclose on the Plaintiff's
Mortgage.
2. The Mortgage attached to the Verified Complaint for mortgage foreclosure contains a
legal description which covers Lot 37, more particularly described on “Exhibit A” to the Verifiede
Complaint, however, the Verified Complaint is attempting to foreclose on a legal description
covering Lot 37, Lot 38, and Lot 39.
3. The Foreclosure Complaint alleges that the Unity of Title executed by Defendants
after the Mortgage magically extended the property mortgage-covers, however, there is no
Mortgage Modification Agreement or Mortgage Spreader Agreement attached to the Verified
Complaint confirming this assertion that the Mortgage has been modified to include the
“extended” legal description which would cover Lots 38 and 39.
4. The failure to attach any document that the Complaint relies upon is in violation of
Florida Rule of Civil Procedure 1.130. The Complaint must rely on some document other than
the Mortgage because the Mortgage only contains a legal description that covers Lot 37.
5. The document that is attached to the Plaintiff's Verified Complaint (the Mortgage) is
in direct contradiction to the allegations of the Complaint, thus making the Complaint
objectionable. Citing Harry Pepper v. Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971).
6. Looking at the four corners of the Verified Complaint, as well as the attachments
which are incorporated, the Plaintiff cannot be granted the relief that it seeks as it does not hold a
mortgage over Lots 38 and 39, and, thus, cannot foreclose on property which it does not
encumber.
WHEREFORE, the Defendants, KEVIN FOSTER, YVONNE MACKIN and THOMAS
J. MACKIN, respectfully request that this Court grant their Motion and Dismiss and grant such
other and further relief as this Court deems just and proper.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been
sent via regular U.S. Mail and facsimile to Edmond Alonzo, III, Esq., Alonzo Law Offices, P.A.,
217 Avenue A, Fort Pierce, FL 34950 on this { Trey of September, 2010.
GRAZI & GIANINO, LLP
217 East Ocean Boulevard
P. O. Drawer 2846
Stuart, FL 34995-2846
Tel. (772) 286- 0200
-3-
Preview
» a IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR ST. LUCIE COUNTY, FLORIDA SEACOAST NATIONAL BANK, f/k/a FIRST NATIONAL BANK AND TRUST COMPANY OF THE TREASURE COAST, Plaintiff, vs. KEVIN D. FOSTER, a/k/a KEVIN FOSTER; YVONNE MACKIN; THOMAS J. MACKIN, SR.; THE UNKNOWN SPOUSE OF KEVIN D. FOSTER, a/k/a KEVIN FOSTER; THE UNKNOWN SPOUSE OF YVONNE MACKIN; CITY OF PORT ST. LUCIE; JOHN DOE, UNKNOWN TENANT; AND JANE DOE, UNKNOWN TENANT, the names being fictitious to account for parties in possession, Defendants, CASE NO.: 562010CA004087 JUDGE: Senior Judge 92 dsl yee: MOTION TO DISMISS COMES NOW, the Defendants, KEVIN FOSTER, YVONNE MACKIN and THOMAS J. MACKIN, by and through undersigned counsel, and hereby file this Motion to Dismiss, and as grounds, therefore, state as follows: 1. This action was filed on or about July 27, 2010, seeking to foreclose on the Plaintiff's Mortgage. 2. The Mortgage attached to the Verified Complaint for mortgage foreclosure contains a legal description which covers Lot 37, more particularly described on “Exhibit A” to the Verifiede Complaint, however, the Verified Complaint is attempting to foreclose on a legal description covering Lot 37, Lot 38, and Lot 39. 3. The Foreclosure Complaint alleges that the Unity of Title executed by Defendants after the Mortgage magically extended the property mortgage-covers, however, there is no Mortgage Modification Agreement or Mortgage Spreader Agreement attached to the Verified Complaint confirming this assertion that the Mortgage has been modified to include the “extended” legal description which would cover Lots 38 and 39. 4. The failure to attach any document that the Complaint relies upon is in violation of Florida Rule of Civil Procedure 1.130. The Complaint must rely on some document other than the Mortgage because the Mortgage only contains a legal description that covers Lot 37. 5. The document that is attached to the Plaintiff's Verified Complaint (the Mortgage) is in direct contradiction to the allegations of the Complaint, thus making the Complaint objectionable. Citing Harry Pepper v. Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971). 6. Looking at the four corners of the Verified Complaint, as well as the attachments which are incorporated, the Plaintiff cannot be granted the relief that it seeks as it does not hold a mortgage over Lots 38 and 39, and, thus, cannot foreclose on property which it does not encumber. WHEREFORE, the Defendants, KEVIN FOSTER, YVONNE MACKIN and THOMAS J. MACKIN, respectfully request that this Court grant their Motion and Dismiss and grant such other and further relief as this Court deems just and proper.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been sent via regular U.S. Mail and facsimile to Edmond Alonzo, III, Esq., Alonzo Law Offices, P.A., 217 Avenue A, Fort Pierce, FL 34950 on this { Trey of September, 2010. GRAZI & GIANINO, LLP 217 East Ocean Boulevard P. O. Drawer 2846 Stuart, FL 34995-2846 Tel. (772) 286- 0200 -3-