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Filing #75438122 E-Filed 07/24/2018 03:27:23 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
THE BANK OF NEW YORK MELLON FKA CASE NO.: 2017-CA-008067-O
THE BANK OF NEW YORK AS TRUSTEE
FOR THE CERTIFICATE HOLDERS OF THE
CWALT, INC., ALTERNATIVE LOAN TRUST
2004-06CB, MORTGAGE PASS THROUGH
CERTIFICATES, SERIES 2004-06CB,
Plaintiff,
VS.
WILLIAM F. MELDRUM; et al.,
Defendant(s).
/
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS
SECOND AMENDED COMPLAINT.
COMES NOW, the Plaintiff, THE BANK OF NEW YORK MELLON FKA THE BANK OF
NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWALT, INC.,
ALTERNATIVE LOAN TRUST 2004-06CB, MORTGAGE PASS. THROUGH
CERTIFICATES, SERIES 2004-06CB, (‘Plaintiff’), by and though its undersigned attorneys,
and hereby files its Response to Defendant’s Motion to Dismiss Second Amended, and states the
following:
1 Defendant is moving to dismiss a Second Amended Complaint. Plaintiff has not filed a
Second Amended Complaint in this foreclosure action.
2. However, the purpose of a Motion to Dismiss is to test the legal sufficiency of the
complaint and not to determine the factual issues in the case. To rule on a motion to dismiss, a
court’s gaze is limited to the four corners of the complaint, including the attachments
incorporated in it, and all well pleaded allegations are taken as true.” U.S. Project Mgmt., Inc. v.
Pare Royale E. Dev., Inc., 861 So. 2d 74, 76 (Fla. 4th DCA 2003) All allegations of the
Complaint and any reasonable inferences drawn from the Complaint must be construed in favor
Matter ID: 1382-1857B
of the non-moving party. Minor v. Brunetti, 43 So.3d 178, 179 (Fla. 3“ DCA 2010); Jordan v.
Griley, 667 So.2d 493 (Fla. 3 DCA 1996).
Dismissal for Lack of Jurisdiction-
3 As the subject property is located in Orange County, Florida, this court has subject matter
jurisdiction. In re Adoption of D.P.P., 158 So. 3d 633, 633-37 (Fla. 5th DCA 2014) (explaining
that Florida circuit courts are courts of general jurisdiction and nothing is beyond their subject-
matter jurisdiction except those cases that have specifically been excluded).
Dismissal for Failure to State a Cause of Action and Standing-
4 The defendant’s motion attempts to convince the Court that the Plaintiff does not have
standing. Defendant’s arguments are clearly refuted by the facts alleged in the very Complaint
which it seeks to have dismissed, along with the exhibits attached to the complaint, to wit:
attached copy of Note showing a Blank Endorsement. Further, and argument of lack of standing
is inappropriate for a Motion to Dismiss under Fla. R. Civ. P. 1.140(b).
5 Contrary to Defendant’s allegations, at this stage of the proceedings, Plaintiff is only
required to sufficiently allege its ownership interest in the note and mortgage, the proof of which
if raised by the defendants, is properly brought on a motion for summary judgment, WM
Specialty Mortgage LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA 2004), Further, pursuant to
Florida law, Plaintiff is not required to “attach a written and recorded assignment of mortgage in
order to maintain a foreclosure action.” Chemical Residential Mortgage v. Rector, 742 So.2d 300
(Fla. Ist D.C.A. 1998). As such, failure of the Plaintiff to attach a copy of the Assignment of
Mortgage is not a sufficient basis for an action to be dismissed, nor does it represent a failure by
Plaintiff to sufficiently allege that it is the real party in interest.
Dismissal for Failure to Comply with Conditions Precedent-
Matter ID: 1382-1857B
6 Defendant further alleges that Plaintiff failed to file a non-resident cost bond. Filing a
Non-Resident Cost Bond is not a condition precedent to foreclosure. Nonetheless, Defendant’s
allegation is moot for a non-resident cost bond, Florida Statute 57.011 was repealed and took
effect July 1, 2016.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court Deny Defendant’s
Motion to Dismiss, Order Defendant to Answer Plaintiff's Complaint within twenty (20) days
and any other remedy that this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was provided via E-
Mail or Regular U.S. Mail to the parties listed on the service list on this 2'f day of
Sly , 2018.
ALDRIDGE | PITE, LLP
Attorney for Plaintiff
1615 South Congress Avenue, Suite 200
Delray Beach, FL 33445
Telephone: (561) 392-6391
Facsimile: (561) 392-6965
_—
By:
James P. G , Esq
FBN: 101488
Primary E-Mail: ServiceMail@aldridgepite.com
Service List:
By M:
Unknown Tenant 1 N/K/A Annette Meldrum
1044 North Bumby Avenue
Orlando, FL 32803
By E-Mail.
Charles W. Franklin, Esq.
Attorney for Defendant William Meldrum
P.O, Box 1987
Orlando, FL 32802
charlesfranklin@freedomlawfirm.com
Matter ID: 1382-1857B
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Filing #75438122 E-Filed 07/24/2018 03:27:23 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA THE BANK OF NEW YORK MELLON FKA CASE NO.: 2017-CA-008067-O THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2004-06CB, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2004-06CB, Plaintiff, VS. WILLIAM F. MELDRUM; et al., Defendant(s). / PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT. COMES NOW, the Plaintiff, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2004-06CB, MORTGAGE PASS. THROUGH CERTIFICATES, SERIES 2004-06CB, (‘Plaintiff’), by and though its undersigned attorneys, and hereby files its Response to Defendant’s Motion to Dismiss Second Amended, and states the following: 1 Defendant is moving to dismiss a Second Amended Complaint. Plaintiff has not filed a Second Amended Complaint in this foreclosure action. 2. However, the purpose of a Motion to Dismiss is to test the legal sufficiency of the complaint and not to determine the factual issues in the case. To rule on a motion to dismiss, a court’s gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true.” U.S. Project Mgmt., Inc. v. Pare Royale E. Dev., Inc., 861 So. 2d 74, 76 (Fla. 4th DCA 2003) All allegations of the Complaint and any reasonable inferences drawn from the Complaint must be construed in favor Matter ID: 1382-1857B of the non-moving party. Minor v. Brunetti, 43 So.3d 178, 179 (Fla. 3“ DCA 2010); Jordan v. Griley, 667 So.2d 493 (Fla. 3 DCA 1996). Dismissal for Lack of Jurisdiction- 3 As the subject property is located in Orange County, Florida, this court has subject matter jurisdiction. In re Adoption of D.P.P., 158 So. 3d 633, 633-37 (Fla. 5th DCA 2014) (explaining that Florida circuit courts are courts of general jurisdiction and nothing is beyond their subject- matter jurisdiction except those cases that have specifically been excluded). Dismissal for Failure to State a Cause of Action and Standing- 4 The defendant’s motion attempts to convince the Court that the Plaintiff does not have standing. Defendant’s arguments are clearly refuted by the facts alleged in the very Complaint which it seeks to have dismissed, along with the exhibits attached to the complaint, to wit: attached copy of Note showing a Blank Endorsement. Further, and argument of lack of standing is inappropriate for a Motion to Dismiss under Fla. R. Civ. P. 1.140(b). 5 Contrary to Defendant’s allegations, at this stage of the proceedings, Plaintiff is only required to sufficiently allege its ownership interest in the note and mortgage, the proof of which if raised by the defendants, is properly brought on a motion for summary judgment, WM Specialty Mortgage LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA 2004), Further, pursuant to Florida law, Plaintiff is not required to “attach a written and recorded assignment of mortgage in order to maintain a foreclosure action.” Chemical Residential Mortgage v. Rector, 742 So.2d 300 (Fla. Ist D.C.A. 1998). As such, failure of the Plaintiff to attach a copy of the Assignment of Mortgage is not a sufficient basis for an action to be dismissed, nor does it represent a failure by Plaintiff to sufficiently allege that it is the real party in interest. Dismissal for Failure to Comply with Conditions Precedent- Matter ID: 1382-1857B 6 Defendant further alleges that Plaintiff failed to file a non-resident cost bond. Filing a Non-Resident Cost Bond is not a condition precedent to foreclosure. Nonetheless, Defendant’s allegation is moot for a non-resident cost bond, Florida Statute 57.011 was repealed and took effect July 1, 2016. WHEREFORE, Plaintiff respectfully requests that this Honorable Court Deny Defendant’s Motion to Dismiss, Order Defendant to Answer Plaintiff's Complaint within twenty (20) days and any other remedy that this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was provided via E- Mail or Regular U.S. Mail to the parties listed on the service list on this 2'f day of Sly , 2018. ALDRIDGE | PITE, LLP Attorney for Plaintiff 1615 South Congress Avenue, Suite 200 Delray Beach, FL 33445 Telephone: (561) 392-6391 Facsimile: (561) 392-6965 _— By: James P. G , Esq FBN: 101488 Primary E-Mail: ServiceMail@aldridgepite.com Service List: By M: Unknown Tenant 1 N/K/A Annette Meldrum 1044 North Bumby Avenue Orlando, FL 32803 By E-Mail. Charles W. Franklin, Esq. Attorney for Defendant William Meldrum P.O, Box 1987 Orlando, FL 32802 charlesfranklin@freedomlawfirm.com Matter ID: 1382-1857B