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IN THE 15
th
JUDICIAL CIRCUIT COURT, PALM BEACH COUNTY, FLORIDA

CASE NO.: 2010CA005201 XXXX
DIVISION: AW
Deutsche Bank, et al
Plaintiff,

vs.

Daniel S. King,
et al,
Defendant(s).
/
DEFENDANT DANIEL S. KINGs MOTION FOR AMENDED MOTION FOR
JUDGMENT ON THE PLEADINGS; ALTERNATIVELY, MOTION FOR SUMMARY
JUDGMENT
Preliminary Matter: Request Judicial Notice:
Pursuant to F.S. 90.202(6) and 90.203, Daniel S. King requests that the Court take judicial
notice of the Estate of Audrey E. King, 2008 CP 001635-that she died March 8, 2007.

Preface
This matter was heard on Case Management Conference September 9, 2013. At that time, the
pleadings were not closed, the Plaintiff having filed a motion for enlargement of time in which to
file a Reply to Dan Kings Affirmative Defenses. The Plaintiff s motion was voluntarily
dropped. (Magistrates Order to reflect Motion Denied.). Additionally, the Plaintiff announced
that it was waiving any right to file a Replythus, the pleadings are now closed, RAISING NO
AVOIDANCES TO ANY OF DAN KINGS AFFIMATIVE DEFENSES.
This Motion for Judgment on the Pleadings is thus within the time under Florida R. 1.440 to
submit a motion attacking the pleadings and serves as an exception to the Magistrates finding
that the case is at issue. The case had not been at issue before this motion was originally filed and
there was no order setting this case for trial for nearly 4 weeks thereafter (service of trial order
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received Oct. 31, 2013). This amendment relates back to that original motion and is otherwise
timely and not done to delay a trial of this matter.
Motion
Defendant, DANIEL S. KING, hereby requests that this Court grant him a judgment on the
pleadings; alternatively a summary judgment because:
FAILURE TO STATE A CAUSE OF ACTION
1. It appears on the face of the complaint that DAN KING DID NOT SIGN EITHER THE
NOTE OR MORTGAGE. Fla.R.Civ.P. Rule 1.130(b) provides that all exhibits attached to a
pleading shall be considered a part of the pleading for all purposes. When exhibits are
inconsistent with the plaintiffs allegations of material fact as to who the real party in interest is,
such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772
So.2d 1240 (Fla. 2000); Greenwald v. Triple D. Properties, Inc., 424 So.2d 185, 187 (Fla. 4
th

DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So.2d 1114 (Fla.
3
rd
DCA 1983).

FAILURE TO SUBSTITUTE PARTY: Rule of Civil Procedure 1.260

Florida Rule of Civil Procedure 1.260(a)(1) provides: if a party dies and the claim is not thereby
extinguished, the court may order substitution of parties...Unless the motion for substitution is made
within 90 days after the death is suggested upon the record by the service of a statement of the fact of the
death in the manner provided for the service of the motion, the action shall be dismissed as to the
deceased party.

1. In this case it has been FIVE YEARS since the servicer was made aware of Audrey
Kings death and yet it has done nothing. Once this case was filed, the defendant
immediately informed the plaintiff of Ms. Kings death and this defendants prior motion
to dismiss included a suggestion of death.
2. Although there is discretion to not dismiss a case in a posture violating Fl. R. Civ. P.
1.260(a)(1), here the PLEADINGS demonstrate on THEIR FACE that the plaintiff has
no excuse whatsoever. The case should be dismissed. King v. Tyrees of Tampa, Inc. 315
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So.2d 538 (Fla. 2d DCA 1975); Bono v. Dupree 350 So.2d 26 (Fla. 2d DCA 1977).
3. The legal and practical effect of the Plaintiffs dropping Audrey King as a party is that
the statute of limitations under probate rules has run out and the Plaintiff cannot now
establish that it has the right to enforce the Note. Florida Stats. 733.10; 95.11(2) b, c. A
mortgage without an enforceable obligation for which the mortgage secures is a nullity.
Restatement (Third) of Property (Mortgages) sec. 5.4 cmmt. E (1997) (in general a
mortgage is unenforceable if it is held by one who has no right to enforce the secured
obligation.) (italics supplied). Carpenter v. Longan, 83 U.S. 271, 274-75 (1872): The
note and mortgage are inseparable; the former as essential, the later as an incident. An
assignment of the note carries the mortgage with it, while an assignment of the latter alone
is a nullity.

FAILURE TO JOIN NECESSARY AND INDISPENSIBLE PARTY

4. PLAINTIFF HAS FAILED TO JOIN NECESSARY AND INDISPENSIBLE
PARTIES TO THE NOTE AND MORTGAGE THAT IT SEEKS TO ENFORCE
NAMELY, THE MAKER OF THE NOTE AND MORTGAGE.
5. ALTHOUGH THE PLAINTIFFS ATTACHMENTS CLEARLY SHOW AUDREY
KING AS BEING THE MAKER OF THE NOTE AND MORTGAGE, AUDREY
KING IS NOT A PARTY DEFENDANT HEREIN (Plaintiff having dropped
Audrey King as a defendant after issues regarding failure to substitute the estate
were raised earlier in this matter).

CLAIM FOR ATTORNEYS FEES.
5. In order to adequately defend himself from the actions stated in the Amended Complaint
and as may be otherwise prudent in this matter, Mr. King retained the services of the undersigned
counsel and prior counsel as set forth in the record.
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6. Mr. King has paid and is obligated to pay a reasonable fee for said services.
7. Under the terms of the instruments sued upon regarding prevailing parties; and 57.105
both as to frivolous filing and reciprocal rights to attorneys fees, Mr. King is entitled to claim for
his attorneys fees and litigation costs, ALL CONDITIONS PRECEDENT TO THIS REQUEST
HAVING BEEN DONE.
CONCLUSION
Effect of Failure to Reply and Prayer for Relief
Florida Rule of Civil Procedure 1.100(a) states that "[i]f an answer ... contains an affirmative
defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing
the avoidance. No other pleadings shall be allowed." (Emphasis supplied.) Rule 1.140(a)(1)
provides twenty days to serve a reply "[i]f a reply is required." An avoidance is an allegation of
additional facts intended to overcome an affirmative defense. Kitchen v. Kitchen, 404 So.2d 203
(Fla. 2d DCA 1981). For example, a foreclosing plaintiff may allege facts establishing an
equitable transfer of the mortgage to overcome a claim that the lender did not have physical
possession of the mortgage at the time the foreclosure complaint was filed.. WM Specialty
Mortg., LLC v. Salomon, 874 So. 2d 680 (Fla. 4DCA 2004).

In that context, if Deutche Bank wanted this Court to consider any legal justifications or
avoidances by which it may have escaped Defendant Daniel Kings affirmative defenses, it was
imperative that it had done so by way of a timely and otherwise proper reply to Mr. Kings
Answer and Affirmative Defenses. Deutche however has expressly waived its right of reply.
(CMC September 9, 2013).

Fla. R. Civ. P.1.140(h) states that "A party waives all defenses and objections that the party does
not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has
made no motion, in a responsive pleading except as provided in subdivision (h)(2)." --without a
timely and authorized reply, all allegations of the affirmative defenses that could have been
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avoided are waived. Fink v. Powsner, 108 So.2d 324 (Fla. 3
rd
DCA 1958); Fla. R. Civ. P.
1.100(a); 1.140(a)(3); 1.140(h). As such, any way of avoiding the application of law
including the probate statute of limitation- to this matter has been waived.

In consideration of the undisputed facts and circumstances herein, since the Plaintiff cannot as a
matter of law enforce the promissory note underlying the mortgage in this matter.


WHEREFORE, based on the above, and for such other reasons as may be drawn by

inference or otherwise apparent to the Court, Daniel S. King respectfully requests this

Honorable Court to enter final judgment in his favor and to award him attorneys fees and

costs together with any and all other relief as this Honorable Court deems just and

proper.

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served December 9, 2013
by US Mail and email as indicated to: Emily Dillon, Clarfield, Okon, Salomone &
Pincus, PL., 500 South Australian Avenue, # 730, West Palm Beach, FL 33401; 561-
713-1401 fax; email to: pleadings@cosplaw.com, Edillon@cosplaw.com

Tim Morell, FBN 382885
1933 Tom-a-Toe Road, Boynton Beach
Fl. 33426; e: Tim@TimMorell.com
Ph: 561-329-4000/fax 561-422-4207