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LLC, Plaintiff, v. JEREMIAH T. AMMANN, et al. Defendants. _____________________________/ DEFENDANTS MOTION TO DISMISS PLAINTIFF'S UN-VERIFIED "THIRD AMENDED MORTGAGE FORECLOSURE COMPLAINT" Co-Defendants, Jeremiah and Laura Ammann, move the Court to enter an Order dismissing Plaintiffs un-verified fourth complaint entitled "Third Amended Mortgage Foreclosure Complaint" for its: 1) repeated failure to state a cause of action1; 2) failure to comply with the Florida Rules of Civil Procedure, 3) failure to allege sufficient facts to give the Court jurisdiction; and because 4) its exhibits negate the allegations of the complaint; and state the following in support of dismissal with prejudice: 1. Plaintiff has filed four (4) defective complaints: (1) the Initial Complaint with 2 counts was filed 23 July 2008 (the First One); (2) the First Amended Complaint, 2 counts, filed 9 June 2009 (the Second One); (3) the proposed Second Amended Complaint, filed 16 June 2010 (the Third One) with its first-and-only motion-for-leave-to-amend had only 1 count; and (4) the Third Amended Complaint, filed 11 August 2010 (the Fourth One), has 1 count. 2. The First One was dismissed on 21 May 2009, because it failed to state a cause of action. The attached exhibits were, as they are now, contrary to the allegations of the complaint and the complaint failed to show Plaintiff's standing to sue.
1 Fla. R. Civ. Proc. (2010), Rule 1.110(b) and Rule 1.140(b)(1), (3), (6) and (7)

CASE NO. 08 000 937 - GCS

3. The Fourth One should, now, be dismissed for the exact same reason, but with prejudice this time, not only because Plaintiff has failed to state a cause of action after 3 years and 4 attempts, but because amendment would not fix all the defects of the complaint as shown below. 4. It would appear to be an abuse of discretion for the Court to allow a FIFTH complaint to be filed in this case. As the 4th District Court of Appeal said: Although there is no magical number of amendments which are allowed, dismissal of a complaint that is before the court on a third attempt at proper pleading is generally not an abuse of discretion. [Emphasis added.]2 5. The Fourth One fails to allege Plaintiff "owns" the "note and mortgage." The Florida Supreme Court has provided the words for a "mortgage foreclosure" complaint which lists the following mandatory allegation: "Plaintiff owns and holds the note and mortgage." See paragraph 3. Form 1.944, Fla. R. Civ. Pro. and paragraph 4 of the Fourth One. 6. The Fourth One alleges "Plaintiff's Mortgage" at paragraph 11 and "Plaintiff's mortgage" in the "WHEREFORE" paragraph. However, the alleged copies of the note and mortgage do not bear Plaintiff's name nor any endorsement from a previous holder-in-due-course. 7. The alleged note attached to the Fourth One bears NO endorsement at all. Said note even appears to contradict the alleged original note filed in April 2010. 8. The Florida Supreme Court has ruled: "Exhibits attached to a pleading become a part of the pleading for all purposes. See Fla. R. Civ. P. 1.130(b). If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss." Andre Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000). Thus, the controlling exhibits contradict the allegations of the Fourth One and dismissal is, therefore, proper as a matter of law. The alleged note attached to the Fourth One bears NO endorsement from the original lender to Plaintiff. "[W]hen plaintiff files his complaint, he must

2 Barrett v. City of Margate, 743 So.2d 1160 (1999) 4th DCA at 1162.

necessarily allege he is the owner and holder of the note and mortgage in question. 22 Fla.Jur., Mortgages 314 (1958)." Your Construction Center, Inc. v. Gordon R. Gross, 316 So.2d 596 (1975) (4th Dist.) at p. 597. 9. At the Hearing of 8 April 2011, Mr. Damon Ellis made this curious and important statement about Plaintiff's complaint not seeking a personal money judgment: "We don't have a separate count for a suit on the note."3 10. This must be why the complaint fails to allege that Plaintiff owns the alleged note, because they are not suing on the note. Florida law is well established that the mortgage follows the note. So then, if, as Mr. Ellis states, Plaintiff is not suing "on the note," then he admits Plaintiff has no cause of action. A suit upon a mortgage, alone, is a nullity. 11. The purported "Mortgage" attached to the Fourth One contains NO express "grant" or "transfer" of property rights. THEREFORE, it is really not a mortgage. The Florida statute of frauds demands that contracts, affecting people's rights in real estate property, be in writing. The Rules demand that "All bonds, notes, ... contracts, accounts, or documents upon which action may be brought ... or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading."4 12. The Fourth One has several defects, and some them can not be corrected by amendment even if Plaintiff attaches the purported "Assignment of Mortgage [and Note]" because it was: (1) executed and assigned AFTER the action was filed, which means Plaintiff had no standing-to-sue on the filing date, and "plaintiff's lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed."5 An amendment will not fix this. (2) executed and assigned AFTER the alleged note was overdue which means Plaintiff is not a holder-in-due-course, is not a "creditor" and it has no
3 Transcript of Hearing 8 April 2011, at page 53, lines 4-5. [Emphasis added.] 4 Rule 1.130(a), Fla. R. Civ. Pro. 5 Progressive Exp. Ins. v. McGrath Comm. Chiropractic, 913 So.2d 1281 at 1285 (Fla. 2nd DCA 2005).

standing-to-sue. The record shows that Stacy Spohn as a Vice President of both Plaintiff (assignee) and JPMorgan (assignor) took said note with "notice that the instrument [was] overdue or has been dishonored";6 and (3) The alleged note attached to the Fourth One bears NO endorsement from the original lender to Plaintiff. "Exhibits attached to a pleading become a part of the pleading for all purposes. See Fla. R. Civ. P. 1.130(b). If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss." Andre Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000), Florida Supreme Court. (4) Plaintiff admits it did not have "possession" of the alleged note on the date it filed the Initial Complaint. Said note was allegedly signed on 2 December 2005. The Initial Complaint was filed on 23 July 2008. At some point between those two dates, said note was alleged to be "lost" and, as of the filing date, the Initial Complaint alleges "Plaintiff has been unable to obtain possession of the Mortgage Note."7 Two days later, on 25 July 2008, a purported "Assignment of Mortgage [and Note]" was executed while the alleged note was still "lost" as confirmed by the Second One filed almost a year later on 9 June 2009 which still contained a count for a "Lost Note." By purportedly assigning the "mortgage" along with the "note," Plaintiff puts the cart in front of the horse. Plaintiff wants the note to follow the mortgage, but Florida law says that the mortgage is incidental and that it follows the note under normal circumstances. Allegations "show that the note was lost before the assignment to [Plaintiff] was made." "The right to enforce the lost instrument was not properly assigned where neither [Plaintiff] nor its predecessor in interest possessed the note."8 "Florida ... requires possession either by the assignor at the time of loss or by the person seeking to enforce the note."9 An amendment can not change the facts or correct this.

6 7 8 9

F.S. 673.3021(1)(a)3. See Initial Complaint on page 4 at paragraph 21 --and-- the Second One on page 3 at paragraph 19. State Street Bank v. Hartley Lord, 851 So.2d 790 (2003), at 792, 4th DCA. State Street Bank v. Hartley Lord, 851 So.2d 790 (2003), at 793, 4th DCA. Emphasis added.

(5) The alleged note is NOT a negotiable instrument. "the term 'negotiable instrument' means an unconditional promise ... to pay a fixed amount of money...."10 Because said note is governed by the alleged mortgage, said note is NOT a "negotiable" instrument because the mortgage allows for "additional debt" in Section 9 on page 8 which covers more than just interest on said note. Said note is NOT for a "fixed amount of money" and is not a negotiable instrument. This means said note is not allowed to be transferred to someone else. Plaintiff did NOT allege that said note was a "negotiable" instrument. Plaintiff can allege it, but the exhibits negate negotiability. (6) If Plaintiff files a fourth amended complaint that changes its allegations to say that it obtained the alleged note and mortgage in a manner not consistent with the purported "Assignment of Mortgage [and Note]" and not consistent with the allegations of its previous complaints, then Plaintiff will be admitting to a manifest fraud. 13. As shown above, a fifth complaint--if allowed--would still fail to state a cause of action as a matter of law, thus any amendment would be futile and the Fourth One should, now, be dismissed with prejudice to avoid any further waste of the Court's time and ours. 14. If Plaintiff had filed a true "in rem" action against the subject property, the caption would have read something like this: Chase Home Finance, LLC, Plaintiff v. 1820 Iris Avenue, Defendant, in rem. We know it sounds really weird, but that is how "in rem" cases are captioned. Exhibit A attached hereto shows an example of an "in rem" case against property (cash). 15. To avoid needless repetition, please read our "in rem" discussion beginning on page 9 of our DEFENDANTS OBJECTIONS TO THE HEARING OF 8 APRIL 2011 AND MOTION TO RE-CONSIDER ALL ORDERS FILED 8 JUNE 2011 to see further objections to this case being considered an "in rem" action. All references to this case being an "in rem" action should be removed from Plaintiff's complaint.
10 F.S. 673.1041. Emphasis added.

16. Without an attached copy of the alleged assignment, the complaint is void ab initio. See WM Specialty Mortgage, LLC v. Alan F. Salomon, et al., 874 So.2d 680 (Fla. 4th DCA 2004). See also Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990) where the appellate court declared that a foreclosure complaint should have been dismissed because the assignment was not attached to the complaint. See Fla. R. Civ. Proc., Rule 1.130(a) and Form 1.944. 17. In Florida, the prosecution of a residential mortgage foreclosure must be by the owner and holder of the mortgage and the note. Your Construction Center Inc v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975). The Plaintiff fails to establish its possession and ownership of the alleged Note and the alleged Mortgage on the date it filed its Initial Complaint. 18. Fla. R. Civ. Pro., Rule 1.420(b) provides, in pertinent part, that "[a]ny party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court." The dismissal of an action for failure of an adverse party to comply with the Rules of Civil Procedure or any order of the court operates as an adjudication on the merits. Cash v. Airport Mini-Storage, 782 So.2d 983 (Fla. 3d DCA 2001). 19. It appears on the face of the complaint that plaintiff was NOT the true owner of the claim it sued upon at the time this action was filed and that Plaintiff is neither the real party in interest nor has it shown itself to be authorized to bring this foreclosure action either for itself or on behalf of someone else. CONCLUSION The complaint fails to show Plaintiff is the real party in interest. The court lacks subjectmatter jurisdiction. The court can only look within the four corners of the complaint and, without amendment, Plaintiffs Third Amended Complaint fails to state a cause of action.

After nearly 3 years, 4 complaints and a small army of attorneys, Plaintiff's Third Amended Complaint has very few, if any, well-pled allegations and its purported cause of action is negated by its own exhibits. WHEREFORE, the Defendants move the Court for an order dismissing Plaintiff's action, for entry of final judgment quieting title for Defendants and against Plaintiff, for taxable costs, for findings of fact and conclusions of law, and for such other and further relief as the court deems appropriate. Respectfully submitted by: JEREMIAH T. AMMANN and LAURA U. AMMANN ____________________________ Co-Defendant, Self-Represented 1820 IRIS AVE SEBRING, FL 33875-6090 (863)-385-3138

________________________________ Co-Defendant, Self-Represented 1820 IRIS AVE SEBRING, FL 33875-6090 (863)-385-3138

CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was served upon the parties listed below on the 28th day of June 2011 as indicated below: by U.S. mail: BRIAN HUMMEL FLORIDA DEFAULT LAW GROUP, P.L. P O BOX 25018 TAMPA FL 33622-5018 ___________________________________ Laura U. Ammann 1820 Iris Ave. Sebring, FL 33875-6090 Telephone: (863)-385-3138 by hand delivery: HIGHLANDS COUNTY c/o ELIZABETH V LENIHAN 2543 US HWY 27 SOUTH SEBRING FL 33870-2125