Motion,Ex Parte: JPMORGAN CHASE BANK NA SUCCESSOR IN INTEREST BY vs WEST, PYONG SU

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                                eFile Accepted: 10/20/2014 01:22 PM

Filing # 19547120 Electronically Filed 10/19/2014 12:10:02 PM

CIRCUIT COURT FOR SARASOTA COUNTY, FLORIDA
JPMORGAN CHASE BANK,
N.A., etc.,
Plaintiff,

VS. Case No.: 2013 CA OO0OO0089
NC

PYONG SU WEST, etc.,

Defendants.

MOTION TO DISMISS

Defendant, PYONG SU WEST, files this Motion to Dismiss
Plaintiff’s Complaint, and in support would show, as follows:

1. Fla.R.Civ.P., Form 1.944, sets forth the standard
allegations necessary to state a cause of action for mortgage
foreclosure. Plaintiff is required to identify the owner and
holder of the note and mortgage. Plaintiff’s complaint is
defective, as it is riddled with contradictions and is therefore

incoherent. It states that:

a. Fannie Mae owns the note. See: Paragraph 3.

b. JPMorgan Chase Bank, N.A., owns the Note, as successor
in interest by purchase from the FDIC as receiver of Washington
Mutual Bank, F.A., £/k/a Washington Mutual Bank, F.A. See: Case
style, introductory paragraph of complaint, and verification.

c. JPMorgan Chase Bank, N.A. is the servicer for the owner,

Fannie Mae. See: Paragraph 3.d. Plaintiff is suing itself. See: Paragraph 11.

2. The complaint must state the owner of the note and
mortgage to show standing. Plaintiff’s allegations are
contradictory and therefore do not state who owns the note.

3. Ownership of the note and standing are inextricably
intertwined. Every action must be prosecuted by or on behalf of
the real party in interest (the owner of the Note), “to protect
a defendant from facing a subsequent similar action brought by
one not a party to the present proceeding and to ensure that any
action taken to judgment will have its proper effect as res
jJudicata..”. Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178
(Fla. 3°° DCA 1985). Plaintiff fails to identify the real party
in interest, so the complaint fails to state a cause of action
upon which relief may be granted.

4. Plaintiff fails to allege how it is authorized to
bring this action on behalf of the real party in interest in
compliance with Fla.R.Civ.P., 1.210(a).

Rule 1.210(a) provides in part:

Every action may be prosecuted in the name of the real

party in interest, but a personal representative,

administrator, guardian, trustee of an express trust,

a party with whom in whose name a contract has been

made for the benefit of another, or a party expressly

authorized by statute may sue in that person’s own

name without joining the party for whose benefit the
action is brought...5. The Plaintiff fails to allege compliance with this Rule
and the complaint does not attach a written agency agreement
from the real party in interest upon which it relies, as
required.

6. In Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC,
37 Fla. L. Weekly D 785 (Fla. 4°" DCA 2012) the Court found that
a Plaintiff cannot win a case merely by showing it is the
servicer for some unspecified owner, as Plaintiff attempts to
allege in its Complaint. Plaintiff must plead and prove that it
has the authority to act on behalf of the owner, with proof from
that owner of Plaintiff’s authority to proceed on the owner’s
behalf.

7. Defendant has retained the undersigned and has agreed
to pay him a reasonable fee for defending this action, and they
should recover attorney fees pursuant to the terms of the Note,
Mortgage and the reciprocal provisions of §57.105 (7).

WHEREFORE, Defendant, PYONG SU WEST, requests that this
action be dismissed with prejudice and for the award of her
attorney fees and costs.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above
has been emailed to Albertelli Law, servealaw@albertellilaw.com
and all entities listed on the efiling portal on October 19,

2014./s/Gregg Horowitz

Gregg Horowitz

P.O. Box 2927

Sarasota, Florida 34230
Florida Bar No.: 0802867
(941) 365-2094
gregg.horowitz@verizon.net