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Motion to Dismiss Complaint
IN THE CIRCUIT COURT OF THE
20TH JUDICIAL CIRCUIT IN AND
FOR COLLIER COUNTY, FLORIDA
DEUTSHCE BANK NATIONAL TRUST CASE NO: 07-xxxx-CA
COMPANY, AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITALI, INC., TRUST
2006-HE6, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-HE6,
DEFENDANTS’, D.O.’S, MOTION TO DISMISS COMPLAINT
The Defendants, D.O., by and through undersigned counsel, file this Motion to Dismiss Complaint as follows:
1. The mortgage attached to the complaint shows the lender to be an entity different from the Plaintiff and there is no valid assignment attached to the complaint. The complaint, therefore, fails to comply with Rule 1.130, Fla. R. Civ. P. There was also no promissory note attached to the complaint and no assignment of the note associated with this foreclosure action proving that the Plaintiff had standing to enforce the note and bring this action. As a result of the pleading deficiencies, the complaint should be dismissed, either because of a repugnancy created by the complaint and the exhibits, or because the complaint fails to allege sufficient ultimate facts to show Plaintiff’s standing to bring the action. Verizzo v. The Bank of New York, 2010 WL 711862 (Fla. App. 2nd Dist.); 2010 WL 476641 (Fla. App. 2nd Dist.); and Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240 (Fla. 2000);
WHEREFORE, Defendants, D.O., respectfully request that this Court enter an order granting this Motion to Dismiss Complaint.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that on March 26, 2010, a true and correct copy of the foregoing was faxed and mailed to: Michael J. Alterman, Esq., Law Office of David J. Stern, P.A., 900 S. Pine Island Road, Suite 400, Plantation, FL 33324-3920 [Attorneys for Plaintiff]; David E. Leigh, Esq., 5150 Tamiami Trail, North, Suite 501, Naples, FL 34103 [Attorney for Sherwood V., Inc.] and David Brian Levin, Esq., Adorno & Yoss LLP, 2525 Ponce de Leon Blvd Ste 400, Miami, Florida 33134-6044.
Attorney for Defendants
2100 East Hallandale Beach Blvd./Suite 200
Hallandale Beach, FL 33009
Telephone: (954) 455-0800
Facsimile: (954) 455-9649
ALAN D. SACKRIN, ESQ. Florida Bar No. 349070
LARRY TOLCHINSKY, ESQ. Florida Bar No 021997
This is a sample document related to a specific set of facts and circumstances and should not be used or relied upon if any foreclosure, deficiency judgment, short sale or any other real estate matter. We recommend and urge you to consult with an experienced lawyer for professional advice as each case is unique.