Motion to Dismiss in 1 OAK RICHLAND LLCvs.AVILA, ANA M et al.| Trellis.Law

On November 18, 2020 a Motion,Ex Parte was filed involving a dispute between 1 Oak Richland Llc, and Ana M Avila, Carlos A Lopez, Dynamic Construction And Roofing, Keith Jenigen, Unknown Spouse Of Ana M Avila, for CA - Nonhomestead Residential Foreclosure ($50,001-249,999) in the District Court of Orange County.

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Filing # 122703059 E-Filed 03/08/2021 04:29:22 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO: 2020 CA 011501
1 OAK RICHLAND LLC,

Plaintiff,

vs.

ANA AVILA , et al.,
Defendant(s).

_________________________________________/

DEFENDANT ANA AVILA’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT TO
FORECLOSE MORTGAGE
COMES NOW, Defendant ANA AVILA (“Defendant”), by and through the undersigned

attorney, and pursuant to Rule 2.515 of the Florida Rules of Judicial Administration and Rule

1.140 of the Florida Rules of Civil Procedure, hereby moves the Court to Dismiss the Plaintiff, 1

OAK RICHLAND LLC’S Amended Complaint. As grounds therefore, defendant offers the

following:

1. STANDARD ON MOTION TO DISMISS

Florida Rules of Civil Procedure section 1.410 provides in part:

Every defense in law or fact to a claim for relief in a pleading
shall be asserted in the responsive pleading, if one is required, but
the following defenses may be made by motion at the option of the
pleader: (1) lack of jurisdiction over the subject matter, (2) lack of
jurisdiction over the person, (3) improper venue, (4) insufficiency
of process, (5) insufficiency of service of process, (6) failure to state
a cause of action, and (7) failure to join indispensable parties.

A motion making any of these defenses shall be made before pleading if a further pleading

is permitted. The grounds on which any of the enumerated defenses are based and the substantial

matters of law intended to be argued shall be stated specifically and with particularity in the
responsive pleading or motion. Any ground not stated shall be deemed to be waived except any

ground showing that the court lacks jurisdiction of the subject matter may be made at any time.

No defense or objection is waived by being joined with other defenses or objections in a responsive

pleading or motion.

If a pleading sets forth a claim for relief to which the adverse party is not required to serve

a responsive pleading, the adverse party may assert any defense in law or fact to that claim for

relief at the trial, except that the objection of failure to state a legal defense in an answer or reply

shall be asserted by motion to strike the defense within 20 days after service of the answer or reply.

The function of a motion to dismiss a complaint is to raise as a question of law the

sufficiency of the facts alleged to state a cause of action. Connolly v. Sebco, Inc., 89 So. 2d 482

(Fla. 1956). For the purpose of a motion to dismiss, the Court is required to accept as true all well-

pleaded allegations of the complaint. Brown v. First Federal Savings and Loan, 160 So.2d 556

(Fla. 1st DCA 1964). However, the Court is not required to accept as true allegations that are

inconsistent with law. Brown, 160 So. 2d at 563. (“Semantics cannot be employed for the purpose

of refuting facts clearly shown to exist or used to create a fictional relationship, one that otherwise

would have no existence in the law.”) The pleading must be construed against the pleader in

determining whether the necessary allegations have been stated. Matthews v. Matthews, 122 So.

2d 571 (Fla. 2d DCA 1960).

II
DEFINITIONS

"Plaintiff' means " 1 OAK RICHLAND LLC”. "Defendant" means “ANA AVILA”.
I. PLAINTIFF FAILS TO ESTABLISH STANDING AT THE INCEPTION OF THIS
CASE
Florida Rules of Civil Procedure section 1.210(a) provides:
(a) Parties Generally. 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 or 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. All persons having an interest in the subject
of the action and in obtaining the relief demanded may join as
plaintiffs and any person may be made a defendant who has or
claims an interest adverse to the plaintiff. Any person may at any
time be made a party if that person’s presence is necessary or
proper to a complete determination of the cause. Persons having a
united interest may be joined on the same side as plaintiffs or
defendants, and anyone who refuses to join may for such reason be
made a defendant.

Florida Rules of Civil Procedure section 1.130 states:
(a) Instruments Attached. All bonds, notes, bills of exchange,
contracts accounts, or documents upon which action may
be brought or defense made, or a copy thereof or a copy of
the portions thereof material to the pleadings, shall be
incorporated in or attached to the pleading. No papers shall
be unnecessarily annexed as exhibits. The pleadings shall
contain no unnecessary recitals of deeds, documents,
contracts, or other instruments.

(b) Part for All Purposes.Any exhibit attached to a pleading
shall be considered a part thereof for all purposes.
Statements in a pleading may be adopted by reference in a
different part of the same pleading, in another pleading, or
in any motion.
Florida Rules of Civil Procedure section 1.210(a) provides the basis for standing to bring
an action, but the plaintiff meets none of these criteria. No Florida case holds that a separate
entity can maintain suit on a note payable to another entity unless the requirements of Rule
1.210(a) of the Florida Rules of Civil Procedure and applicable Florida law are met. Corcoran v.
Brody, 347 So. 2d 689 (Fla. 4th DCA 1977)
Standing requires that the party prosecuting the action have a sufficient stake in the
outcome and that the party bringing the claim be recognized in the law as being a real party in
interest entitled to bring the claim. This entitlement to prosecute a claim in Florida courts rests
exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar
Corp. v Nopal Lines, Ltd, et. al., 462 So. 2d 1178, (Fla. 3d DCA 1985). In Florida, the
prosecution of a foreclosure action is by the owner and holder of the mortgage and the note.
Plaintiff is not entitled to maintain an action in which it seeks to foreclose on a note which
Plaintiff does not own. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA
1975).

A. Failure to attach Certification of Possession to Amended Complaint
This action was initially filed on August 5, 2015, by the Original Plaintiff in this case, TH

TRS CORP., wherein it alleges that [TH TRS Corp] “has possession of the Original Note, which

is either made payable to Plaintiff or has been duly endorsed. Therefore, the Plaintiff has the right

to enforce the Note” (A copy of the complaint is attached hereto as Exhibit “A”). TH TRS Corp.

further attaches to its complaint its Certification as to the Original Promissory Note, which

provides that Plaintiff is in possession of the Original Promissory Note.

On or about September 3, 2020, an Order was entered granting Plaintiff’s Motion for Leave

to Amend Complaint and Substitute Party Plaintiff (filed 08/27/2020). Paragraph 5 of Plaintiff’s

Amended Complaint provides that Plaintiff, directly or through an agent, is in physical possession

of the Note, endorsed in blank, and Loan Modification Agreement which are subject of this action
and therefore, is the holder of that Note (A copy of Plaintiff’s Amended Complaint is attached

hereto as, Exhibit “B”).

Plaintiff’s Amended Complaint did not contain any Certification of Possession, as was

attached to the Original Complaint at the initiation of this case nor did Plaintiff’s Complaint

reference how or when the Prior Plaintiff(s) in this action had the requisite standing to file this

foreclosure suit.

B. Plaintiff’s Failure to establish standing at the time of filing the Complaint

On or about October 14, 2020, Plaintiff filed its Notice of Filing Amended Certification of

Note Possession attached thereto were the following documents: (i) CERTIFICATION OF NOTE

POSSESSION and (ii) AMENDED CERTIFICATION OF NOTE POSSESSION.

In ruling on a defendant's motion to dismiss, a trial court is limited to the four corners of

the Complaint, and it must accept all the allegations in the Complaint as true. See Lutz Lake Fern

Rd. Neighborhood Groups, Inc. v. Hillsborough County, 779 So. 2d 380, 383 (Fla. 2d DCA 2000).

The Second Amended Complaint supersedes and replaces the prior Complaints. The "filing

of an amended complaint constitutes 'an abandonment of the original complaint which was

superseded, [and it] ceased to be part of the record and could no longer be viewed as a

pleading."' Oceanside Plaza Condominium Ass'n, Inc. v. Foam King Industries, Inc., 206 So.3d

785, 787 (Fla. 3rd DCA 2016)quotingBabb v. Lincoln Auto Finance Co., 133 So.2d 566, 568 (Fla.

3rd DCA 1961); see also Dee v. Southern Brewing Co., 1 So.2d 562, 562-63 (Fla. 1941) ("By

filing of this [amended] declaration the plaintiff abandoned the original declaration and it no longer

served any purpose in the record."); Commercial Garden Mall v. The Success Academy, Inc., 453

So.2d 934, 936 (Fla. 4th DCA 1984) ("An original pleading is usually superseded by an
amendment to it."); Metropolitan Bank & Trust Co. v. Vanguard Ins. Co., 400 So.2d 184, 184 (Fla.

2nd DCA 1981) (finding "the allegations of the initial complaint were irrelevant because they were

superseded by subsequent complaints"); Raymond, James & Associates, Inc. v. Zumstorchen Inv.,

Ltd., 488 So.2d 843, 844 (Fla. 2nd DCA 1986) (reasoning that by filing an amended complaint

"the pleader causes the new complaint to become a substitute for the prior pleading").

Moreover, Exhibits attached to an Amended complaint or other pleadings are a part of the

complaint. See Bott v. City of Marathon, 949 So. 2d 295 (Fla 3rd DCA 2007) ("when considering

a motion to dismiss, a trial court is required to consider any exhibit attached to or incorporated in

the pleading"). See also Harry Pepper & Assoc., Inc. v. Lasseter, 247 So. 2d 736 (Fla. 3rd DCA

1971) (stating "[i]n considering [*4] a motion to dismiss the trial court was required to consider

the exhibit . . . attached to and incorporated in the amended complaint" and quoting Florida Rule

of Civil Procedure 1.130(b), providing that "[a]ny exhibit attached to a pleading shall be

considered a part thereof for all purposes"). As such, an exhibit attached to a complaint

or other pleading may be considered when ruling on a motion to dismiss as

considering exhibits does not violate the "four corners" rule.

Moreover, Section 702.015 of the Florida Statutes is silent as to whether a certification of

note possession must be filed with any amendment(s) to the complaint. Florida law only requires

that a certification 1.994(a)). Id. See also PNC Bank, Nat. Ass'n v. Orchid Group Investments.

L.L.C., F. [*6] Supp.3d 1294, 1304 (M.D. Fla. 2014) (ruling that for purposes of applying Section

702.015 of the Florida Statutes an action is commenced with filing the original complaint and not

subsequent amendments thereto). As such, the plain language of the statute controls. See Wilensky

v. Fields, 267 So. 2d 1, 5 (Fla. 1972) (finding that, as a general rule of statutory construction, a

statute is to be construed so that it is meaningful in all parts); Board of Public Instruction of
Broward County v. Doran, 224 So. 2d 693. 698 (Fla. 1969) (finding that language used in a statute

should be construed as an entirety, and with reference to the purpose of the law); see also American

Bakeries Co. v. Haines City. 180 So. 525 (Fla. 1938) (holding that the fundamental rule, to which

all others are subordinate, in statutory construction is that the intent thereof is the law, and should

be duly ascertained and effectuated).

C. Exhibits conflict with allegations made in the Complaint

Further, exhibits attached to a complaint or other pleading must agree with the allegations of

the complaint, and where to two do not agree, the exhibits control. See Geico General Insurance.

Co. v. Graci, 849 So. 2d 1196 (Fla. 4th DCA 2003) and Ginsberg v. Lennar Fla. Holdings, Inc.

645 So. 2d 490, 494 (Fla. 3rd DCA 1994) (where exhibits contradict complaint allegations, plain

meaning of exhibits control). See also Harry Pepper & Associates v. Lasseter, 247 So. 2d 736

(Fla. 3rd DCA 1971) and Health Application Systems v. Hartford Life and Acc. Ins. Co., 381 So.

2d 294 (Fla. 1st DCA 1980).

If a document incorporated in a complaint "negates a pleader's cause of action, the plain

language of the document will control and may be the basis for a motion to dismiss." Franz Tractor

Co. v. J.I. Case Co., 566 So.2d 524, 526 (Fla. 2d DCA 1990) (dismissing claim for breach of

contract where agreement attached to the complaint demonstrated that no viable claim existed).

"Any exhibit attached to a pleading shall be considered a part thereof for all purposes." Harry

Pepper & Assoc., Inc. v. Lasseter, 247 So. 2d 736, 737 (Fla. 3d DCA 1971) (quoting Fla. R. Civ.

P. 1.130(b)). If there is an inconsistency between the general allegations of material facts in

a complaint and the specific facts revealed by the exhibits, they have the effect of neutralizing each

other and the pleading is rendered objectionable. Id.

D. Plaintiff’s Amended Complaint fails to comply with Section 702.015(2), Fla. Stat.
Plaintiff’s Amended Complaint fails to comply with Section 702.015(2), Fla. Stat., which requires:

A complaint that seeks to foreclose a mortgage or other lien on
residential real property...must: (a) Contain affirmative allegations
expressly made by the plaintiff at the time the proceeding is
commenced that the plaintiff is the holder of the original
note secured by the mortgage; or (b) Allege with specificity the
factual basis by which the plaintiff is a person entitled to enforce the
note under s. 673.3011.

Plaintiff alleges in its Amended Complaint and subsequent Amended Note Certification(s)

it is the holder of the note (verified first amended complaint P 5) without clarifying whether it held

the original promissory note or a mere copy of the original promissory note at the commencement

of this action.

It is settled that it is not enough for the plaintiff to prove that it has standing when the

case is tried; it must also prove that it had standing when the complaint was filed."); Ham v.

Nationstar Mortg., LLC, 164 So.3d 714,718 (Fla. 1st DCA 2015) ("A party must have standing

to file suit at its inception and may not remedy this defect by subsequently obtaining standing."

(quoting Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d

773,776 (Fla. 4th DCA 2011))). "A plaintiff alleging standing as a holder must prove it is a

holder of the note and mortgage both as of the time of trial and also that the (original) plaintiff

had standing as of the time the foreclosure complaint was filed." Russell v. Aurora Loan Servs.,

LLC, 163 So.3d 639,642 (Fla. 2d DCA 2015) (quoting Kiefert v. Nationstar Mortg., LLC, 153

So.3d 351,352 (Fla. 1st DCA 2014)). This is because "[a] substituted plaintiff acquires only the

standing of the original plaintiff." Id. The plaintiffs 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; 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.
E. Plaintiff’s Amended Complaint supersedes prior Complaint(s)

The Amended Complaint supersedes and replaces the prior complaint. The "filing of an

amended complaint constitutes 'an abandonment of the original complaint which was superseded,

[and it] ceased to be part of the record and could no longer be viewed as a pleading."' Oceanside

Plaza Condominium Ass'n, Inc. v. Foam King Industries, Inc., 206 So.3d 785, 787 (Fla. 3rd DCA

2016) quoting Babb v. Lincoln Auto Finance Co., 133 So.2d 566, 568 (Fla. 3rd DCA 1961);see

also Dee v. Southern Brewing Co., 1 So.2d 562, 562-63 (Fla. 1941) ("By filing of this [amended]

declaration the plaintiff abandoned the original declaration and it no longer served any purpose in

the record."); Commercial Garden Mall v. The Success Academy, Inc., 453 So.2d 934, 936 (Fla.

4th DCA 1984) ("An original pleading is usually superseded by an amendment to

it."); Metropolitan Bank & Trust Co. v. Vanguard Ins. Co., 400 So.2d 184, 184 (Fla. 2nd DCA

1981) (finding "the allegations of the initial complaint were irrelevant because they were

superseded by subsequent complaints"); Raymond, James & Associates, Inc. v. Zumstorchen Inv.,

Ltd., 488 So.2d 843, 844 (Fla. 2nd DCA 1986) (reasoning that by filing an amended complaint

"the pleader causes the new complaint to become a substitute for the prior pleading").

Plaintiff’s Amended Complaint does not "[c]ontain affirmative allegations expressly made

by the plaintiff at time the proceeding is commenced that the Plaintiff is the holder of the original

note secured by the mortgage." See Fla. Stat. § 702.015(2)(a) (emphasis added). Additionally,

statements contained to Plaintiff’s Amended Certificate of Possession fail to establish whether the

Original Plaintiff in this case had standing at the inception of this lawsuit. Plaintiff may not rely

on its previous Complaint nor any attachments thereto.

II. FAILURE TO ATTACH NECESSARY EXHIBIT PURSUANT TO RULE 1.130(a)
OF THE FLORIDA RULES OF CIVIL PROCEDURE
Failure to attach a document upon which a cause of action is based is in violation of Rule

1.130(a) of the Florida Rules of Civil Procedure, which provides in pertinent part that:

All bonds, notes, bills, of exchange, contracts, accounts, or
documents upon which action may be brought or defense made, or
a copy of thereof or a copy of the portions thereof material to the
pleadings shall be incorporated in or attached to the pleading. No
papers shall be unnecessarily annexed as exhibits. The pleadings
shall contain no unnecessary recitals of deeds, documents contracts
or other instruments.

When a party fails to attach a necessary exhibit under Rule 1.130(a) of the Florida Rules

of Civil Procedure, the opposing party may attack the failure to attach the necessary exhibit through

a motion to dismiss. Id. at 1130. A complaint based on a written instrument does not state a cause

of action until the instrument or an adequate portion thereof, is attached to or incorporated in the

complaint. Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th DCA

2001). See Fla.R.Civ.P. Rule 1.130(a)(all contracts or documents "upon which action may be

brought...shall be incorporated in or attached to the pleadings". (Bold emphasis added). See

also, Contractors Unlimited, Inc. et al. v. Nortrax Equipment Company Southeast, etc., 833 So. 2d

286 (Fla. 5th DCA 2002).

In Contractors v. Nortrax Equip., 833 So.2d 286 (Fla. 5th DCA 2002) informs the Court

held that it must dismiss for this shortcoming: ("A complaint based on a written instrument does

not state a cause of action until the instrument or an adequate portion thereof, is attached to or

incorporated in the complaint"). Also See Samuels v. King Motor Co. of Fort Lauderdale, 782

So.2d 489 (Fla. 4th DCA 2001).

Although Plaintiff alleges in Paragraph 10 of its Amended Complaint that all conditions

precedent to filing this action have been performed or have occurred, the Notice to Plaintiff which

must occur prior to the action being brought, is not attached to Plaintiff’s Amended Complaint.
Specifically, Paragraph 22 Acceleration; Remedies of the subject Mortgage provides the requisite

Notice required to be provided to the Borrower:

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.

Despite Plaintiff’s vague allegations as to its fulfillment of requisite conditions precedent

to bringing this action, there is nothing attached to Plaintiff’s Amended Complaint or provided to

this Court indicating that the required notice was given prior to acceleration and the institution of

this action.

Alternatively, pursuant to Rule 1.140(e), Fla.R.Civ.P., Plaintiff should be required to

provide a more definite statement before Defendant is required to plead further in response to

the Amended Complaint because it is so vague and ambiguous that Defendant is unable to

reasonably formulate a response to same.

A. Plaintiff’s Failure to Attach necessary documents to its Amended Complaint

Florida Statute § 702.015(3). Florida Statute § 702.015(3) provides that:
(3)If a plaintiff has been delegated the authority to institute a
mortgage foreclosure action on behalf of the person entitled to
enforce the note, the complaint shall describe the authority of the
plaintiff and identify, with specificity, the document that grants
the plaintiff the authority to act on behalf of the person entitled
to enforce the note. This subsection is intended to require initial
disclosure of status and pertinent facts and not to modify law
regarding standing or real parties in interest. The term "original
note" or "original promissory note" means the signed or executed
promissory note rather than a copy thereof. The term includes any
renewal, replacement, consolidation, or amended and restated note
or instrument given in renewal, replacement, or substitution for a
previous promissory note. The term also includes a transferable
record, as defined by the Uniform Electronic Transaction Act in s.
668.50(16).

Plaintiff has made no allegation, outside of that found in Paragraph 5 of the Amended

Complaint, regarding the authority of to Fay Servicing LLC. As such, Plaintiff has failed to meet

the mandates of Florida Statute § 702.015(3), including, but not limited to, the requirement to

describe the authority of Fay Servicing LLC, and identify, with specificity, the document that

grants the Fay Servicing LLC authority to act on behalf of the personal entitled to enforce the note.

B. Plaintiff’s Amended Complaint fails to state a cause of action

In order to state a cause of action, a complaint must allege sufficient ultimate facts to show

that the pleader is entitled to relief. MEBA Medical & Benefits Plan v. Lago, 867 So.2d 1184 (Fla.

4th DCA 2004);see also Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla. 1990) ("Florida Rule

of Civil Procedure 1.110(b)(2) requires that '[a] pleading which sets forth a claim for relief … must

state a cause of action and shall contain … a short and plain statement of the ultimate facts showing

that the pleader is entitled to relief"). At the outset of a lawsuit, litigants must state their pleadings

with sufficient particularity for a defense to be prepared. Arky, Freed, Stearns, Watson, Greer,

Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988).

Plaintiff’s allegations regarding the authority of the Servicerare vague and fail to establish

a proper chain of title. Plaintiff must attach Power of Attorney documents that it refers to in its

Amended Complaint, or at the very least describe such Powers of Attorney and/or servicing

agreement with more specificity.

C. Plaintiff’s failure to attach a copy of the Acceleration letter to the Amended
Complaint
Plaintiff has further failed to attach a copy of the Acceleration letter to the Amended

Complaint, as required by Fla. R. Civ. P. 1.130. Change of Loan Servicer; Notice of Grievance

of the subject Mortgage in this case in pertinent part provides:

Paragraph 22 Acceleration; Remedies of the subject Mortgage provides:
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…

D. Plaintiff’s Failure to provide notice of change in servicer as required
Paragraph 20: Sale of Note; Change of Loan Servicer; Notice of Grievance of the subject

Mortgage in this case in pertinent part provides:

Neither Borrower nor Lender may commence, join, or be joined to
any judicial action (as either an individual litigant or the member of
a class) that arises from the other party’s actions pursuant any duty
owed by reason of, this Security Instrument, until such Borrower or
Lender has notified the other party (with such notice given in
compliance with the requirements of Section 15) of such alleged
breach and afforded the other party hereto reasonable period after
the giving of such notice to take corrective action. If applicable Law
provides a time period which must elapse before certain action be
taken, that time period will be deemed reasonable for the purposes
of this paragraph. The Notice of acceleration and opportunity to cure
given to Borrower pursuant to Paragraph 22 and the notice of
acceleration given to Borrower pursuant to Section 18 shall be
deemed to satisfy the notice and opportunity to take corrective
action provisions of this Section 20.

Paragraph 20 Sale of Note; Change of Loan Servicer; Notice of Grievance of the subject

Mortgage in this case in pertinent part provides:

If there is a change of the Loan Servicer, Borrower will be
given written notice of the change which will state the name and
address of the new Loan Servicer, the address to which payments
should be made, and any other information RESPA requires in
connection with a notice of transfer of servicing.

Paragraph 20 further provides:
If the Note is sold and thereafter the Loan is serviced by a
Loan Servicer other than the purchaser of the Note, the mortgage
loan servicing obligations to Borrower will remain with the Loan
Servicer or be transferred to a successor Loan Servicer and are not
assumed by the Note purchased unless otherwise provided by the
Note purchase.

III. PLAINTIFF’S FAILURE TO PROPERLY ALLEGE CAPACITY TO BRING SUIT
The Plaintiff’s Amended Complaint should be dismissed for failure to properly allege

Plaintiff’s capacity to bring this lawsuit. Lack of capacity to sue subjects a complaint to dismissal.

ee Hershel California Fruit Products Co. v. Hunt Foods, 111 F. Supp. 603 (1975), quoting Coburn

v. Coleman 75 F. Supp. 107 (1974);Klebano v. New York Produce Exchange, 344 F.2d (2nd Cir.

1965). Asociacion de Perjudiacados v. Citibank, 770 So. 2d 1267 (Fla. 3d DCA 2000) (dismissing

case for lack of capacity as distinguished from lack of standing).

Plaintiff is only identified in the caption of the complaint. This alone is not a sufficient

basis to warrant inclusion in the action if the party is not mentioned in the body of the

complaint. Altamonte Hitch & Trailer Serv. Inc. v. U-Haul Co. of Eastern Fla., 498 So. 2d 1346
(Fla. 5th DCA 1986). See also Trawick's Florida Practice and Procedure § 6-2 (2010 ed.) (stating

that "the caption is not a part of the pleading for purposes of motions directed to the

pleading").

Here, the name of the Plaintiff is neither stated nor specified within the body of the

complaint. Nowhere in the body of the Plaintiff's complaint does it assert the basis for its entity

existence or explain in any way the form of the entity that presents itself before the court. The

complaint fails to indicate whether Plaintiff is a Florida corporation, for profit or not for profit, or

under what statute they are authorized to do business.

In order to state a cause of action, a complaint must allege sufficient ultimate facts to show

that the pleader is entitled to relief." Med. & Benefits Plan v. Lago, 867 So. 2d 1184 (Fla. 5th DCA

2004).Fla. R. Civ. Pro. 1.120(a) provides:

(a) Capacity. It is not necessary to aver the capacity of a party to
sue or be sued, the authority of a party to sue or be sued in a
representative capacity, or the legal existence of an organized
association of persons that is made a party, except to the extent
required to show the jurisdiction of the court. The initial pleading
served on behalf of a minor party shall specifically aver the age of
the minor party. When a party desires to raise an issue as to the legal
existence of any party, the capacity of any party to sue or be sued,
or the authority of a party to sue or be sued in a representative
capacity, that party shall do so by specific negative averment which
shall include such supporting particulars as are peculiarly within the
pleader's knowledge.party shall do so by specific negative
averment which shall include such supporting particulars as are
peculiarly within the pleader's knowledge.Bold emphasis added.

CONCLUSION

WHEREFORE, Defendant requests the Court:

1. To dismiss for failure to state a cause of action;
2. To strike prayers for a deficiency judgment;
3. To strike request for attorney fees;
4. To order a more definite statement;
5. To strike as a sham pleading and dissolve lis pendens
6. To grant such other relief that is just and appropriate/Attorney’s
Fees.

Respectfully submitted this 8th day of March 2021.

/s/ Michael J. Stites, Jr.
_____________________
Michael J. Stites, Esq.
P.O. Box 1601
Winter Park, FL 32790
Phone: (321) 212-9626
E-Mail: MichaelJohn@StitesLaw.com
Attorney for Defendants
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 8th day of MARCH 2021, I mailed the foregoing by electronic
mail to:

Christopher T. Peck, Esquire
MCMICHAEL TAYLOR GRAY, LLC
3350 Engineering Drive, Suite 260
Peachtree Corners, GA 30092
Phone: 404.474.7149
Email: ServiceFL@mtglaw.com

/s/ Michael J. Stites, Jr.
_____________________
Michael J. Stites, Esq.
P.O. Box 1601
Winter Park, FL 32790
Phone: (321) 212-9626
E-Mail: MichaelJohn@StitesLaw.com
Attorney for Defendants

Case Info

Judge

Vincent S. Chiu Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

March 08, 2021

Case Filing Date

November 18, 2020

County

Parties

1 OAK RICHLAND LLC Plaintiff
ANA M AVILA Defendant
CARLOS A LOPEZ Defendant
CHRISTOPHER PECK Attorney for the Plaintiff
DYNAMIC CONSTRUCTION AND ROOFING Defendant
JESSICA DE LAS CUEVAS Attorney for the Defendant
KEITH JENIGEN Defendant
MICHAEL STITES Attorney for the Defendant
UNKNOWN SPOUSE OF ANA M AVILA Defendant
Annalise DeLuca Attorney
Elizabeth Wulff Attorney
Scott Glazier Attorney
Ezra Scrivanich Attorney
Ashley Drew Attorney
Audrey Dixon Attorney

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Motion,Ex Parte: 1 OAK RICHLAND LLCvs.AVILA, ANA M et al.

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