IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA WELLS FARGO BANK,

NA, Plaintiff, vs. CASE NO. XXXXXXX

XXXXXXXXXXXX Defendants. _______________________________ / Motion to Dismiss Complaint for Failure to State a Cause of Action or (alternatively) Motion for a More Definite Statement

COMES NOW the Defendant XXXXXXX, by and through his undersigned attorney and, pursuant to Fla.R.Civ.P. 1.100(b), 1.110(b), 1.140(b)(6), and 1.140(e), moves this Honorable Court for the entry of an order dismissing the complaint filed in this cause or requiring Plaintiff to furnish a more definite statement of the facts upon which this complaint is based, and in support thereof states: 1. Plaintiff has filed a two-count complaint seeking to foreclose a mortgage (Count I) and to reestablish a mortgage (Count II). 2. Plaintiff does not allege that it is the owner and holder of the note and mortgage. Instead, it alleges only that it is now entitled to enforce Mortgage and Mortgage Note pursuant to Florida Statutes 673.3011. Complaint at 4. 3. The cited statute provides (in its entirety): Person entitled to enforce instrument.The term person entitled to enforce an instrument means: (1)The holder of the instrument; (2)A nonholder in possession of the instrument who has the rights of a holder; or (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. 4. Nowhere does Plaintiff allege ultimate facts to support this claim, nor does it assert whether it is claiming to be 1) a holder of the note and/or mortgage; or 2) a nonholder in possession with the rights of a holder; or 3) a person not in possession who is entitled to enforce the instrument. 5. Fla.R.Civ.P. 1.110(b) requires in pertinent part that a pleading shall contain (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief (emphasis supplied). 6. Based thereupon, it has long been held that Florida is a fact pleading state. As we wearily continue to point out, Florida is a fact-pleading jurisdiction, not a notice-pleading jurisdiction. Deloitte & Touche v. Gencor Industries, Inc., 929 So.2d 678, 681 (Fla. 5th DCA 2006). Florida does not have notice pleading. Notice pleading cannot exist when pleadings are required to state a cause of action or a legal defense. The issues at trial must be made by the pleadings. Henry P. Trawick, Jr., Trawick's Florida Practice and Procedure 6:5 (2008-09 ed.) 7. Although ruling in a tort context, the Third District Court of Appeal made clear the applicability of this point when it held that A party does not properly allege a cause of action by alleging in conclusive form, which tracks the language of the statute, acts which lack factual allegations and merely state bare legal conclusions, Ginsburg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 501 (Fla. 3d DCA 1994). 8. In the instant case, given that Plaintiff has fail to allege any facts establishing that it may be deemed a person entitled to enforce an instrument and has simply cited the bare legal conclusion that it is entitled to enforce the instruments, it

has clearly failed to follow the dictates of the rules of procedure and has failed to state a cause of action. Prayer for a More Definite Statement 9. Should the Court not dismiss this action as is being requested, it is further requested that Plaintiff furnish Defendant with a More Definite Statement setting forth 1) under which branch of F.S. 673.3011 it intends to proceed and 2) the specific ultimate facts by which it intends to prove this allegation. 10. Fla.R.Civ.P 1.140(e) states that [i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. 11. A critical issue that must be investigated in this cause is the question of whether Plaintiff (and/or some other owner, as this is not made clear) has standing to sue in this matter. Without knowledge of the basic grounds upon which Plaintiff intends to proceed, Defendant is unable to frame a proper responsive pleading, whether it be a motion to dismiss on standing grounds or appropriate affirmative defenses. Attorneys Fees 12. Defendant has been required to retain the Hathaway Law Firm, P.A. to defend this lawsuit and has agreed to pay it a reasonable fee for so doing. The mortgage herein establishes the right of the Lender to collect attorneys fees in connection with suits regarding its interest in the property. Pursuant to F.S. 57.105(7), attorneys fees are thus awardable to Defendant. WHEREFORE, the Defendant prays that this Court dismiss the Complaint herein, giving Plaintiff a reasonable amount of time to file a proper Amended Complaint. Defendant further prays that this Court, if it does not dismiss the Complaint herein, order

the Plaintiff to furnish the Defendant a More Definite Statement setting forth 1) under which branch of F.S. 673.3011 it intends to proceed and 2) the specific ultimate facts by which it intends to prove this allegation. Finally, Defendant prays that this Court award attorneys fees and grant whatever other remedy that may be just under the circumstances. I hereby certify that a true and correct copy of the foregoing was served by U.S. Mail on the Florida Default Law Group, P.L., P.O. Box 25018, Tampa, FL 33622-5018 this 4th day of May, 2011.

Hathaway & Sprague, P.A. Attorneys for Defendants

By: _________________________ Wayne E. Sprague, FBN 333972 Kathryn A. Hathaway, FBN 622125 P.O. Box 3005 Tallahassee, Fl 32315 850) 425-4700 850) 425-4704 (fax) kathryn@hathawaylaw.net sprague@hathawaylaw.net