I get asked whether you get your house for free if the mortgage lender can't find
your promissory note. The answer to that is, except perhaps in some rare instance
where other factors are involved, "No." The lender can still show you accepted
the principle loan money and that it would be unfair for you to keep your house
mortgage free and keep the money.
Nickolas C. Ekonomides
Attorney at Law
www.eko-law.com
HOMEOWNER,
Defendant.
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MOTION TO DISMISS
NOTICE OF DEFAULT
6. In the Definitions of the subject mortgage, Paragraph (B) defines:
a. “Borrower” as HOMEOWNER his wife, and
b. “Lender” as LENDER.
7. Section 22 of the subject mortgage provides the content of the notice to be provided to
Borrower by Lender upon default and prior to Lender being able accelerate the loan.
8. The law is well settled in Florida (and the mortgage contains a provision) requiring that
the Lender must give the “Borrowers” notice of the loan default and an opportunity to cure the default
before the loan can be accelerated.
9. BANK fails to allege it as Lender gave proper written notice of default and acceleration
to Defendant as required by the mortgage and law and fails to allege sufficiently how BANK could have
given required thirty (30) day notice prior to filing the action, which it did on June 4, 2009, and served on
January 22, 2011, when by its own filing of the Assignment, did not own the mortgage and note until the
Assignment Date of February 14, 2011.
STANDING
10. BANK has not alleged in any respect how it has standing to foreclose on the LENDER
CONCLUSION
16. BANK cannot establish it gave notice, has the right to foreclose, or has the right to
enforce the lost note because it filed this action on June 4, 2009, and served same on January 22, 2011,
but did not take assignment of the note and mortgage until February 14, 2011.
17. BANK has clearly failed to plead necessary facts to this Court relative to the alleged
assignment and lost note which hide the actual fact that BANK has no standing to bring this action.
WHEREFORE, the Defendant moves this court grant this motion to dismiss.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been served by U.S. Mail, [___] facsimile, and
[____] email delivery this ____ day of _____________ 20____, to: Law Offices, 555 Main Street, Miami,
Florida 33111.
________________________________________
Nickolas C. Ekonomides
NICKOLAS C. EKONOMIDES, P.A.
791 Bayway Boulevard
Clearwater, Florida 33767
Telephone No. (727) 447-1075
Fax No. (727) 447-1035
www.eko-law.com
Attorney for Defendant