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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL


CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

WELLS FARGO BANK, N.A., CASE NO. 10 CA 007354 MB


DIVISION: AW
Plaintiff, . -, -
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FE TRACY, et al., ~g2-~ -0
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DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

Defendant Fe Tracy by and through undersigned counsel and pursuant to


Rule 1.140 and other applicable rules of the Florida Rules of Civil Procedure files
this motion to dismiss plaintiff s complaint, and states:
1. Plaintiff herein is identified only in the style of the case as Wells Fargo
Bank N.A. However, plaintiff has failed to set forth any allegations in the
complaint whatsoever as is required to demonstrate the nature of its existence and
whether it is authorized to bring suit in Florida. If plaintiff is an artificial business
entity it must be authorized to do business in this state and post a cost bond
pursuant to Florida Statutes, Section 57.011. If plaintiff is a trust it must comply
with provisions of Florida Statutes, 609.02 and 660.27. Plaintiff fails' to set forth
any allegations as to the nature of its existence; therefore, the complaint should be
dismissed.
2. Allegations of plaintiff s complaint fail to demonstrate that it has standing
to bring this action. Plaintiff fails to allege that it owns and holds the note and
mortgage attached to the complaint. The note and mortgage attached 'to the
complaint are payable to First Meridian Mortgage not plaintiff. The note is
endorsed, but plaintiff does not allege it holds this note. Plaintiff makes no
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Law Office Graham &'Associates, P.A.
8 J 4 Ponce de Leon Boulevard • Suite 410 • Coral Gables; Florida 33134 • Telephone 305.445.9185
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CASE NO. 10 CA 007354 MB

allegations regarding ownership of the mortgage, nor has plaintiff alleged any
assignment of the mortgage. Therefore, plaintiff has failed to demonstrate that it
has any interest in the subject note upon which standing to bring this action may
rest.
3. Furthermore, based upon the argument set forth in paragraph two above,
there is a fatal conflict between the allegations of the complaint and exhibits
attached thereto requiring dismissal. Appel v, Lexington Insurance Co., 29 So. 3d
377 (5th DCA 2010); BAC Funding Consortium Inc. ISAOAlATlMA v. Jean-
Jacques, 28 So. 3d 936 (2nd DCA 2010); Fladell v. Palm Beach County

Canvassing Board, 772 So. 2d 1240(Fla~ 2Ogp)..


4. The complaint filed by plaintiff violates Rule 1.11O(b) of the Florida
Rules of Civil Procedure as it is not verified. Therefore, plaintiff' s complaint
should be dismissed. See In Re: Amendments To The Florida Rules Of Civil
Procedure, 2010 WL 2195736 (Fla. 2010.) :;..;~

5. Plaintiff's complaint fails to state a cause of action. Plaintiff does not


allege that it owns or holds the note or mortgage. See Florida Rules of Civil
Procedure Form 1.944.
6. Plaintiff's complaint fails to set forth ultimate fact and fails to attach
necessary exhibits required to demonstrate that conditions precedent to the
bringing of this action were met. (See Complaint, paragraph 9.) The mortgage
attached to the complaint provides that ~e:~~~Rg~r
may not bring suit until the
borrower is provided with written notice of a'breach and afforded reasonable time
thereafter to take corrective action. (See Mortgage, paragraph 20.) This amounts to
a contractual condition precedent to the lender's right of action. Rule 1.130
requires that all documents upon which an action may be brought shall be attached
to the complaint. See Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4thDCA 2009).
Therefore plaintiff's complaint is defective and should be dismissed.
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Law Office Graham & Associates, P.A.
814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185
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CASE NO.1 0 CA 007354 MB

7. Plaintiff's complaint fails to set forth a cause of action for acceleration of


the alleged mortgage debt. The mortgage attached to the complaint requires lender
to give borrower written notice prior to acceleration following breach. The written
notice must specify (a) the default; (b) the',a:0'tfbnrequired to cure the default; (c) a
date not less than 30 days from the date the notice is given for borrower to cure the
default; and (d) that failure to cure the default in the time specified may result in
acceleration of the debt, foreclosure and sale of the property. (See Mortgage,
paragraph 22.) This requirement is a contractual condition precedent to
acceleration under terms of the mortgage attached to the complaint. Rule 1.130
requires that all documents upon which an action may be brought shall be attached
to the complaint. See Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009).
Therefore plaintiff's complaint is defective and should be dismissed.
8. Allegations of plaintiff's complaint fail to demonstrate that plaintiff has
met statutory conditions precedent to the filing of this action pursuant to the
National Housing Act, 12 V.S.C. 1701x(~)(?)ri' The Act requires all private lenders
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to advise borrowers, of any home ownership counseling Plaintiff offers together
with information about counseling offered by the U.S. Department of Housing and
Urban Development. The U.S. Department of Housing and Urban
Development has determined that 12 V.S.C. 1701x(c)(5) creates an affirmative
legal duty on the part of the Plaintiff. Plaintiffs non-compliance with the law's
requirements makes the filing of this foreclosure premature based on a failure of a
statutory condition precedent to foreclosure.
WHEREFORE defendant requests this court to enter its order granting this
motion to dismiss for those reasons set forth herein and to grant such further relief
deemed proper.

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Law Office Graham & Associates, P.A.
8) 4 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185
CASE NO.1 0 CA 007354 MB

CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was
served by facsimile and U.S. Mail upon Samir A. Maasarani, Esquire, Florida
Default Law Group, P.L., Attorneys for Plaintiff, P.O. Box 25018, Tampa, Florida
33622 on July 8, 2010.

GRAHAM & ASSOCIATES, P.A.


Counsel for Defendants
: Ponce Plaza, Suite 410 .
• <.:1814 Ponce de Leon Boulevard

Coral Gables, Florida 33134


Telephone (305) 445-9185
Telecopier (305) 444-8015

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Law Office Graham & Associates, P.A.
814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185