SAMPLE MOTION TO DISMISS:

*Defendant ------Motion to dismiss, or in the alternative, to abate and motion to strike.

Comes now, Defendant ------by and through the undersigned attorney, and pursuant to Rule 2.515 of the Florida Rules of Judicial Administration and 1.140 of the Florida Rules of Civil Procedure, hereby moves the Court:

  1. To dismiss for lack of standing (Alternately, Abate);
  2. To dismiss for failure to state a cause of action due to (Alternatively Abate):
  3. Lack of Assignments;
  4. Lack of Attachment to Complaint of Power of Attorney
  5. Lack of Reasonable Indemnification
  6. Federal Pre-Foreclosure Default Prevention Procedures
  7. Lack of Acceleration
  8. Lack of Compliance with F.S. 660, Trust Registration
  9. Lack of Loss Reserve Application
  10. Failure to Properly Allege a Cause of Action Pursuant to Fla. Stat. 71.011 &
  11. Lack of Debt Validation

3. To strike the prayers for attorney’s fees; &

4. To strike the request for a deficiency judgment.

As grounds therefore, Defendant off their following:

*Courtesy of Foreclosure Defense Attorney George Gingo – the full sample document can be found here;

RECENT FLORIDA FORECLOSURE CASE DISMISSED, DECEMBER 2009:

“Procedural Rules Violation Trips Up Foreclosing Lender Lacking Capacity To Sue As Florida Judge Dismisses Action Against Strapped Homeowner.” In Pinellas County, Florida, foreclosure defense attorney Matt Weidner blogs:

*On December 16, 2009 Pinellas County Circuit Court Judge Anthony Rondolino granted a Motion to Dismisswhich was filed by St. Petersburg attorney Matthew D. Weidner on December 16, 2009. The foreclosure case was filed by Wachovia Mortgage against Weidner’s Client, PinellasCounty resident Anne Matacchiero.

*Weidner’s Motion to Dismiss asserted that because the entity filing the lawsuit was not properly identified as a Florida corporation, that Plaintiff could not continue its pursuit of the case according to Florida states and rules of civil procedure that restrict the activities of out of state corporations. *In this Mortgage Foreclosure case, the Defendant/Homeowner prevailed on a Motion to Dismiss based on Rule 1.120(a), Fla. R. Civ. Pro., arguing that the Plaintiff had not adequately plead that it had the capacity to sue. *Capacity to sue' is an absence or legal disability which would deprive a party of the right to come into court." Here, the caption of the Complaint lists the Plaintiff as "Wachovia Mortgage, FSB, F.K.A., World Savings Bank." No further identification of the Plaintiff or explanation of the Plaintiff's capacity to sue is set forth in the Complaint. After the Defendant moved to dismiss the case, the Plaintiff attempted to address the defect in a Response to Defendant's Motion to Dismiss. The Court found that the Plaintiff's response was inadequate as the Complaint itself was still defective and that, by failing to sufficiently identify itself in the Complaint, the Plaintiff effectively denied the Defendant the right to address the Plaintiff's identity in a responsive pleading.

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