IN THE CIRCUIT COURT OF THE OF THE 11TH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

HSBC BANK USA, NATIONAL ASSOC.,

MORTGAGE Co. CASE NO: 33-123456 CA 56

Plaintiff,
vs.

DDD and THE “UNKNOWN” SPOUSE OF

DDD

Defendants.
____________________________________/

XXX MOTION TO DISMISS COMPLAINT

COME NOW to this Honorable Court, JON DOE, named Defendant herein (hereafter

“Doe”) and, through undersigned counsel, pray that this Honorable Court will dismiss the

Complaint filed by the Plaintiff, HSBC BANK USA, (Hereinafter “DDD-A1”), alleging as

grounds therefore as follows:

THE COURT IS WITHOUT JURISDICTION

1. DDD-A1 alleges that it is owner and holder of a Mortgage Note, and entitled to

enforce same.

2. DDD-A1 is required to, but has failed to attach the original of the Mortgage Note

to the Complaint.

3. DDD-A1 has attached a copy of Mortgage to the Complaint, alleging that DDD-

A1 was in possession of the related Mortgage Note when it was lost, or has been assigned the

right to enforce the Mortgage Note

4. The Mortgage Note attached is in favor of JPMorgan Chase Bank, N.A.

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 5. If in fact, DDD -A1 was required to pay tax on the transfer or assignment of that

Mortgage Note, per Fla.Stat. §201.08(1)(a), which provides in relevant part:

On promissory notes, nonnegotiable notes, written obligations to pay

money, … made, executed, delivered, sold, transferred, or assigned in the
state, and for each renewal of the same, the tax shall be 35 cents on each
$100 or fraction thereof of the indebtedness or obligation evidence
thereby.

6. DDD-A1 has failed to pay said tax, as required by law.

7. DDD-A1 may not reestablish or enforce the Mortgage Note in this Court.

8. The Courts of Florida are prohibited from enforcing rights created by instruments

upon which the required taxes have not been paid. In an action to enforce a promissory note,

once the Court discovers that the documentary taxes have not been paid, the Court must dismiss

the action without prejudice, or upon proper motion abate the action for a time sufficient to

enable the plaintiff to purchase documentary stamps and affix them to the note. Somma v. Metra

Electronics Corp., 727 So.2d 302 (Fla. 5th DCA 1999). See also, WRJ Development, Inc. v.

North Ring Ltd., 979 So.2d 1046 at 1047 (Fla. 3rd DCA 2008)(“[t]he case law is well established

that, in an action to enforce a promissory note, the documentary taxes must be paid in order for

the note to be enforceable in court.”); Klein v. Royale Group, Ltd., 578 So.2d 394 (Fla. 3rd DCA

1991); Silber v. Cn’R Indus., Inc., 526 So.2d 977 (Fla. 1st DCA 1988).

9. Under the law of this State, Plaintiff must demonstrate the existence of the alleged

assignment (or assignments, if more than one) and prove that the documentary taxes on the

assignment (or assignments, if more than one) have been properly calculated and paid. Until

Plaintiff can do so, this action must be dismissed.

WHEREFORE, Doe prays that this Honorable Court dismiss the Plaintiff’s Complaint

without prejudice, until Plaintiff demonstrates the existence of the alleged assignment (or

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assignments, if more than one) and proves that the documentary taxes on the assignment (or

assignments, if more than one) have been properly calculated and paid, taxing costs fees and

reasonable attorney fees as provided by 15 U.S.C.1640(a)(3), the reciprocity of Fla. Stat.

§57,105, the mortgage and note, and such other relief as this Court deems just and proper.

THE COMPLAINT ALLEGATIONS CONTRADICT THEMSELVES

AND THE ATTACHED MORTGAGE AND NOTE AND SHOW
NO RIGHT OF ACTION IN PLAINTIFF

10. DDD-A1 filed a two count complaint against Doe. The second count seeks to

reestablish and enforce a lost note that is purportedly secured by the mortgage that the first count

seeks to foreclose.

11. The Complaint, at ¶2, alleges that Doe executed and delivered the attached

mortgage.

12. The mortgage that DDD-A1 attached to its complaint as an unnumbered Exhibit

identifies “JPMorgan Chase Bank, N.A.”, a national lending association, as the mortgagee. The

mortgage recites that it is a residential mortgage in favor of borrower Yvonne Doe.

13. The promissory note that DDD-A1 refers to its complaint would of necessity be in

favor of “JPMorgan Chase Bank, N.A.” which obviously does not match the name of the

Plaintiff, “HSBC.”

14. The complaint does not reflect does not show or reflect that the lost note has any

endorsements from “JPMorgan Chase Bank, N.A.” to the Plaintiff, “HSBC BANK USA,

NATIONAL ASSOC., as Trustee for J.P. MORGAN” nor is there any allonge attached.

15. DDD-A1 alleges that it owns and holds the mortgage and note and is entitled to

foreclose same. However, there is no assignment, or other evidence of right, claim or title in

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DDD-MI to or under the mortgage and note. Neither is there attached to the Complaint any

assignment or other evidence of the right to reestablish the lost instrument.

16. Accordingly, the attached documents establish a discrepancy between the Plaintiff

“HSBC BANK USA, NATIONAL ASSOC., as Trustee for J.P. MORGAN ALTERNATIVE

LOAN DDD-A1, MORTGAGE PASS-THROUGH CERTIFICATES, WITHOUT

RECOURSE” and the name of the payee of the note, “JPMorgan Chase Bank, N.A.”, that DDD-

A1 seeks to reestablish as the party authorized to enforce the reestablished lost note.

17. DDD-A1’s Complaint does not allege a reconciliation of these obvious and patent

pleading discrepancies.

18. DDD-A1’s Complaint does allege that Plaintiff has satisfied all conditions

precedent to bringing this action, but DDD-A1 does not allege that Plaintiff has complied with

the notice requirement of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. as

amended and has attached no evidence of compliance. Absence of this notice defeats the intent

and purposes of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. by denying to

Mr. Doe the requisite 30 day period for inquiry, for demand for documents and for response.

19. These pleading deficiencies create several bases to dismiss the DDD-A1

complaint.

20. The Court must dismiss for failure to attach the original promissory note and a

complete copy of the assignment or assignments alleged. See: Fla. R. Civ. Pro. 1.130(a) (“"All . .

. contracts . . . upon which an 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.”).

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

Court 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.
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001). See
Fla. R.Civ.P. 1.130(a)”.

22. Another problem arises from DDD-A1’s allegation that DDD-A1 is the present

owner and holder of the note and mortgage. The issue arises because DDD-A1 cannot be the

“holder” of a lost instrument under Florida’s Uniform Commercial Code (Hereafter “UCC”).

23. “Holder” is a term defined by the UCC. The holder is a required party who

receives issuance of an instrument, or a subsequent delivery of an instrument as part of the

“negotiation” process of a “note”, which makes the note a negotiable instrument under Fla. Stat.

§673.1041.

24. Fla. Stat. §671.201(21) defines a “Holder” as follows: “with respect to a

negotiable instrument, means the person in possession if the instrument is payable to bearer or, in

the case of an instrument payable to an identified person, if the identified person is in

possession...”.

25. Fla. Stat. §673.2011 defines “negotiation” and Fla. Stat. §673.3021 describes the

manner the holder of a negotiable instrument conveys the negotiable instrument to a new holder

by endorsing the instrument to the new holder so the new holder can enforce the instrument.

26. Fla. Stat. §673.3011 entitled “Person entitled to enforce instrument.” defines the

term “person entitled to enforce” an instrument as either:

“(1) The holder of the instrument;” which is defined by Fla. Stat. §671.201(21) as a
person with physical possession of the original note;

“(2) A non-holder in possession of the instrument who has the rights of a holder;” which
again is a person with physical possession of the original note;

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 “(3) A person not in possession of the instrument who is entitled to enforce the
instrument pursuant to s. 673.3091 or s. 673.4181(4).”

“A person may be a person entitled to enforce the instrument even though the person is
not the owner of the instrument or is in wrongful possession of the instrument.”

27. In other words, DDD-A1’s foreclosure complaint Count I alleges that DDD-A1 is

person entitled to enforce the note as a “holder” i.e., a person with possession of the original

negotiable instrument, but DDD-A1’s Count II alleges that the note is lost, which makes DDD-

A1 a person who does not have physical possession of the original negotiable instrument.

28. Fla. Stat. §673.3011 makes it impossible for DDD-A1 to be entitled to enforce the

note as a “holder” under Fla. Stat. §673.3011(a) as alleged in Para. 3, and at the same time be a

person entitled to enforce the note under Fla. Stat. §673.3011(c) through the Complaint’s Count

II to Reestablish because DDD-A1 does not have physical possession of the lost note.

29. DDD-A1 is either a holder i.e. DDD-A1 has physical possession of the original

note, or DDD-A1 is “(3) A person not in possession of the instrument who is entitled to enforce

the instrument pursuant to s. 673.3091 or s. 673.4181(4).” which means even though DDD-A1

does not have physical possession of the original note because it is lost, DDD-A1 is entitled to

enforce the lost note.

30. Under Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA 1999)

exhibits attached to a pleading shall be considered a part thereof for all purposes. Therefore, the

Court must consider and examine the Complaint alleging that DDD-A1 is the holder along with

the mortgage and note attachments to determine the bona fides of DDD-A1’s allegation that it is

the holder of the mortgage and note, and has the right to reestablish and then enforce the note.

31. Harry Pepper & Assocs., Inc. v. Lasseter, 247 So.2d 736, 736-37 (Fla. 3d DCA

1971), instructs the Court: [if there] is an inconsistency between the general allegations of

material facts in the . . . complaint and the specific facts revealed by the exhibit [attached or

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referred to in the complaint] they have the effect of neutralizing each allegation as against the

other, thus rendering the pleading objectionable. See also Hillcrest, p. 1056; Buck v. Kent Sec. of

Broward, 638 So.2d 1004 (Fla. 4th DCA 1994); Ginsberg v. Lennar Florida Holdings, Inc., 645

So.2d 490, 494 (Fla. 3d DCA 1994), review denied, 659 So.2d 272 (Fla. 1995); Franz Tractor

Co. v. J.I. Case Co., 566 So.2d 524, 526 (Fla. 2d DCA 1990).

32. Ginsberg, p. 496-497 informs the Court that while assignability of a cause of

action is the rule, not the exception, the assignor must be explicitly assign the rights he is

assigning. Here there is no assignment and, of course, there is no mention whatsoever of an

assignment of the right to reestablish the lost instrument. Both prerequisites to reestablishment

in this Plaintiff. See, for example National Loan Invest. v. Joymar Ass., 767 So.2d 549 (Fla. 3rd

DCA 2000); State Street Bank v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003).

33. Furthermore, Plaintiff has failed to allege the facts necessary to reestablish and

enforce the lost instrument under §673.3091, Fla. Stat.

34. Therefore, the inconsistencies which require dismissal and a re-pled complaint are

as follows:

a. DDD-A1’s complaint attachments show JPMorgan Chase Bank, N.A. is the

correct Plaintiff to reestablish the lost instrument, and foreclose the mortgage.

b. DDD-A1 must re-plead and allege how it is that DDD-A1 can reestablish a lost

promissory note payable to “JPMorgan Chase Bank, N.A.” and/or foreclose a

mortgage when DDD-A1 does not hold, has no assignment of, and has failed to

evidence and attach the claimed assignment to the Complaint.

c. DDD-A1 must re-plead and explain how DDD-A1 is simultaneously a “holder” of

a negotiable instrument entitled to enforce it and a person not in possession of the

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 instrument who is entitled to enforce the instrument pursuant to Fla. Stat.

§673.3091 under the Harry Pepper, Hillcrest, and Ginsberg cases because of this

obvious and apparent inconsistency in the complaint allegations as to whether

DDD-A1 is a holder entitled to enforce or a person not in possession of the

instrument who is entitled to enforce.

d. DDD-A1 must re-plead a cause of action under Fla. Stat. §673.3091.

e. DDD-A1 must fulfill the preconditions to pleading a cause of action by fulfilling

the notice requirement of the Fair Debt Collection Practices Act, 15 U.S.C. §

1692, et seq. as amended, as same pertains to residential property, by providing

notice to both Xavier Doe and Yvonne Doe, husband and wife, with evidence or

explanation of DDD-A1’s right or entitlement to default, accelerate, make

demand and ultimately foreclose, and must provide Mr. and Mrs. Doe each the

requisite 30 day period for inquiry, for demand for documents and for response.

WHEREFORE, Defendant Doe prays that this Honorable Court dismiss the Plaintiff’s

Complaint with prejudice, taxing costs fees and reasonable attorney fees as provided by 15

U.S.C.1640(a)(3), the reciprocity of Fla. Stat. §57,105, the mortgage and note, and such other

relief as this Court deems just and proper.

DOES INTEND TO SUPPLEMENT THIS MOTION TO DISMISS

BASED ON PLAINTIFF’S FAILURE TO FILE
A NON-RESIDENT COST BOND

Finally, Doe hereby provides notice of his intent to file a motion to dismiss due to

Plaintiff’s failure to file a non-resident cost bond. Plaintiff does not allege Florida residence.

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An examination of the registry of companies that have registered to do business in the State of

Florida indicates that neither J.P. Morgan nor DDD-A1 is registered to do business in Florida.

Pursuant to Florida Statutes § 57.011, “[w]hen a nonresident plaintiff begins an action …

he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all

costs which may be adjudged against him or her in said action in the court in which the action is

brought. On failure to file such bond within 30 days of such commencement … the defendant

may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to

dismiss the action…”

Plaintiff commenced this action on or about December 24, 2009. The court docket does

not reveal the filing yet of a cost bond by this non-resident plaintiff. Therefore, Doe hereby

gives notice of his intent to supplement this motion to seek dismissal of the Plaintiff’s

Complaint pursuant to Florida Statutes § 57.011 if a cost bond is not filed by Plaintiff within 20

days of the filing of this motion.

Respectfully submitted,

Attorney