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IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA. CASE NO.

: 16-2010-CA-11393-XXXX DIVISION: FC-G HABITAT FOR HUMANITY OF JACKSONVILLE, INC., Plaintiff, vs. CURRY S. BROWN and LINDA F. BROWN,et.al., Defendants. _____________________________/
DEFENDANTS CURRY BROWN AND LINDA BROWNS MOTION TO STRIKE/DISMISS PLAINTIFFS COMPLAINT; DISMISS ACTION FOR IMPROPER VERIFICATION OF PLAINTIFFS MORTGAGE FORECLOSURE COMPLAINT

COME NOW, the Defendants, and respectfully move this Court to STRIKE/DISMISS the plaintiffs complaint; dismiss this action and for all other appropriate relief pursuant to Rules 1.110(b), 1.140(f) and 1.420(b) of the Florida Rules of Civil Procedure, and state: 1. THE PLAINTIFFS COMPLAINT IS NOT PROPERLY VERIFIED a. Fla. R. Civ. Pro. 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.

b. Pursuant to the grant of constitutional authority given to the Florida Supreme Court under Article V, Section 2(a) of the Florida Constitution, the Florida Supreme Court amended Fla. R. Civ. Pro. 1.110(b) effective February 11, 2010 as follows: [w]hen filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document shall include an oath, affirmation, or the following statement: Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. 2. The Supreme Court determined that [t]he primary purposes of this amendment are: (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial

resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 11, 2010). 3. Fla. Stat. 92.525 provides that (1) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner: (a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or (b) By the signing of the written declaration prescribed in subsection (2). (2) A written declaration means the following statement: Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true, followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words to the best of my knowledge and belief may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration. See also Muss v. Lennar Florida Partners I, L.P., 673 So. 2d 84 (Fla. 4th DCA 1996). Please see Exhibit A-1. 4. Verification means that the verifying party attests that the facts alleged in the complaint are true. Trawick's Florida Practice and Procedure Sec. 6:14 (Verification). Beverette v. Graham, 131 So. 826, 827 (Fla. 1931); Burns v. Burns, 174 So.2d 432, 434 (Fla. 2d DCA 1965). If verification is required by rule or statute then it may not be based on information or belief. Trawick Florida Practice and Procedure Sec. 6:14 (Verification). Moreover, it is clear that failure to verify may be attacked via a Motion to Strike. Id. 5. In its complaint, Plaintiff failed to properly verify the complaint because the verification is not a part of the complaint and because it is signed by a person who is not identified as the plaintiff and in fact is an agent or employee of Everhome Mortgage Company as evidenced by the power of attorney filed for record; attached hereto and incorporated herein of which defendant requests the court take judicial notice of as required and allowed by Florida law and rules of procedure and especially in light of the reasons the Florida Supreme Court

amended the rule to require verification and the failure to comply with said rule and the insult such failure represents to this court. WHEREFORE Defendants respectfully request that the Plaintiffs Complaint and this action be stricken and dismissed; that this Court grant the Defendants attorneys fees and costs as authorized by Florida law, the Florida Rules of Civil Procedure and/or the mortgage contract that is the subject of this action and defendants request all other relief as the court finds proper.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to Jason m. Tarokh, Albertelli Law, P O Box 23038, Tampa, Fl 33623 this __________________________. JACKSONVILLE AREA LEGAL AID, INC. ________________________ April Carrie Charney Florida Bar No. 310425 126 West Adams Street Jacksonville, Florida 32202 (904) 356-8371, ext. 373 (904) 224-1587 fax april.charney@jaxlegalaid.org