THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION
The complaint fails to include an allegation that Plaintiff is the holder of the note and mortgage
In order to state a cause of action for mortgage foreclosure, the complaint must allege that the plaintiff is either the holder of the note or the holder’s representative. See e.g. BAC Funding Consortium Inc. v. Jean-Jacques, 28 So. 3d 936 (“The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative.”)
For this reason, “ownership” of the note and mortgage is irrelevant. See Wells Fargo v. Morcom, 125 So. 3d 320 (Fla. 5th DCA 2013).
Here, Plaintiff’s complaint only alleges that it is the “owner” of the note and mortgage. See Complaint, ¶5.
There is absolutely no allegation that Plaintiff was the “holder” of the note and mortgage.
Since Plaintiff failed to allege this in its complaint, its pleading fails to state a cause of action and should therefore be dismissed.
There is a repugnancy between the exhibits attached to the complaint and the allegations of the pleading
A repugnancy occurs when allegations within a single cause of action or defense are inconsistent and thus neutralize each other. The resulting pleading is a nullity. Trawick’s Florida Practice and Procedure §6-7 (2004 ed.), pg. 86.
The repugnancy may occur in the pleading or between it and an attached exhibit. Id.
Repugnancy should be attacked by a motion to dismiss a pleading seeking affirmative relief for failure to state a cause of action. See Don Mar, Inc. v. Gillis, 483 So. 2d 870, n. 1 (Fla. 5th DCA 1982) (providing that “Repugnancy should be attacked by motion to dismiss a pleading for failure to state a cause of action”); Trawick’s Florida Practice and Procedure §6-7 (2004 ed.), pg. 87. See also generally Fla. R. Civ. Pro. 1.110(b)(2) (providing that each count of an action must state a cause of action and a short, plain statement showing the pleader’s right thereto).
Even if “ownership” of the note and mortgage was a relevant factor (which it clearly is not), Plaintiff’s complaint also fails to state a cause of action because the documents attached are repugnant to Plaintiff’s claim of “ownership.”
Specifically, the note and mortgage are made payable to New Century but there is: (1) no endorsement on the note; (2) no assignment of mortgage attached to the complaint; or (3) any allegation of an “equitable” assignment from New Century to Plaintiff.
Consequently, the exhibits attached to Plaintiff’s pleading are repugnant to its allegations. Its complaint therefore fails to state a cause of action and should be dismissed.
The documents sued upon were not attached or incorporated into the pleading
Fla. R. Civ. Pro. 1.130(a) in pertinent part, that “[a]ll…contracts… upon which 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.” Bold emphasis added.
Moreover,[w]hen a party brings an action based upon a contract and fails to attach a necessary exhibit under Rule 1.130(a), the opposing party may attack the failure to attach a necessary exhibit through a motion to dismiss. Where a complaint is based on a written instrument, the complaint 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, 500 (Fla. 4th DCA 2001). Bold emphasis added.
Plaintiff’s complaint is based upon a “re-recorded” mortgage.
However, Plaintiff failed to attach a copy of this “re-recorded” mortgage to its complaint.
Since Plaintiff has failed to do this, its pleading fails to state a cause of action.
It is too late for Plaintiff to amend its pleading
In Schopler v. Smilovits, 689 So. 2d 1189 (Fla. 4th DCA 1997) the Court held Rule 1.140(b)(6) authorizes the motion to dismiss for failure to state a cause of action. Rule 1.140(h)(2), expressly permits the opponent of a claim to wait until trial to move for dismissal on the grounds that the claim has been defectively pleaded. Contrary to the trial court’s ruling, there is nothing in the rule that requires the motion to be made at the commencement of trial and before the presentation of any evidence. We are unable to agree that we should read such a requirement into the rule. Although it might seem “efficient” and ostensibly “just” in the eyes of the claimant for the opponent to make the motion earlier rather than later, these considerations are hardly dispositive. There is the defendant’s equal right to efficiency and justice.at 1189. Bold emphasis added.
Furthermore, “waiting until the close of all the evidence and the argument on motions to dismiss and for directed verdict is too late for a claimant to request that the pleadings be conformed to the evidence.” Id. at 1190. Bold emphasis added. See also Arky, Freed v. Bowmar Instrument Corporation, 537 So. 2d 561, 563 (Fla. 1988) (finding that “Had Arky, Freed waited to object until the presentation of evidence and then moved for a directed verdict, Bowmar would not have been entitled to amend its pleadings and start the case anew.”).
Because the evidence has now closed and procedural the case has progressed to arguments on Defendant’s motion to dismiss, it is too late for Plaintiff to “amend” its pleading.
Consequently, there is only one choice the Court is faced with: dismissal of Plaintiff’s pleading.
