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IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL

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IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL Powered By Docstoc
					     IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
             OF FLORIDA, IN AND FOR SEMINOLE COUNTY




REVERSE MORTGAGE SOLUTIONS,                        Case No.: 2012-CA-XXX

                   Plaintiff,
v.

JANE A. DOE, INDIVIDUALLY AND
AS TRUSTEE OF THE JANE A. DOE
TRUST U/A/D FEBRUARY 25, 2009, et. al.,

               Defendants.
____________________________________________/


          MOTION FOR JUDGMENT ON THE PLEADINGS, OR
           ALTERNATIVELY, FOR SUMMARY JUDGMENT

     Defendant JANE A. DOE, individually and as Trustee of the JANE A. DOE
Trust, U/A/D FEBRUARY 25, 2009, moves for a judgment on the pleadings
pursuant to Fla. R. Civ. P. Rule 1.140(c), or alternatively, for summary judgment
pursuant to Fla. R. Civ. P. 1.510 because:
                                    I
                       REQUEST FOR JUDICIAL NOTICE

1.    Pursuant to F.S. 90.202(6) and 90.203, Petitioner requests the Court take
judicial notice of all documents filed by Plaintiff in this action, including the
Verified Complaint and its attachments and the Verified Answer and its
attachments.


                                           II
                                         FACTS

2.        In this case, the facts admitted in the complaint establish:

            a.    Defendant JANE DOE, an 82 year old widower, executed
            and delivered a promissory note and mortgage for a reverse
      mortgage, a copy of both are attached to the Complaint as an
      exhibit.

               b.    The Plaintiff is not entitled to a deficiency judgment as this is a
               “reverse mortgage”. (Paragraph 4(C) of the Note)

             c.     The Plaintiff agreed to make monthly payments to the
      Defendant under the terms of the reverse mortgage loan until
      either the loan matured or the Defendant died. (Complaint,
      paragraph 11)

            d.     That the requirement to make monthly payments to the
      Defendant terminated when Defendant failed to perform an
      obligation under the mortgage to maintain current insurance.
      (Complaint, paragraph 13)

            e.     That Plaintiff declared a default and accelerated the entire debt
            because Defendant failed to maintain current insurance on the
      Property as required by the Mortgage. (Complaint, paragraph
      13)
              f.     That acceleration is authorized under the mortgage when
      “. . . an obligation of the borrower under the mortgage is not
      performed.” (Complaint, paragraph 12(5))

             g.      That the Plaintiff must first seek and obtain approval to
      accelerate from the Secretary of HUD when the ground for
      default is “. . . an obligation of the borrower under the mortgage
      is not performed.” (Note, paragraph 6(B); Mortgage, paragraph
      9(B)).

             h.    Plaintiff filed this action for foreclosure on March 20, 2012.

3.    In this case, the undisputed facts provided in the Verified Answer establish:

            a.    Plaintiff had obtained insurance on the property, at Defendants
            expense, and notified her that the insurance would expire on
      March 31, 2012, but would be renewed at her expense.
      (Verified Answer, paragraph 22; Also see Verified Answer,
      Exhibit A)

             b.    Plaintiff filed this action on March 20, 2012.


                              II
             MOTION FOR JUDGMENT ON THE PLEADINGS

A.    Law

4.    A motion for judgment on the pleadings Rule 1.140(c), Florida Rules of
Civil Procedure, is governed by the same legal test as a motion to dismiss for
failure to state a cause of action. Domres v. Perrigan, 760 So. 2d 1028 (Fla. 5th
DCA 2000); Wilcox v. Lang Equities, Inc., 588 So. 2d 318 (Fla. 3d DCA 1991);
Reinhard v. Bliss, 85 So.2d 131, (Fla. 1956); Butts v. State Farm Mutual
Automobile Insurance Co., 207 So.2d 73 (Fla. 3d DCA 1968).
5.    A judgment on the pleadings may be granted only if a party is entitled to
judgment as a matter of law based on the content of the pleadings. The trial
court’s consideration is limited to only the pleadings. The trial court must
consider all well pled material allegations and fair inferences to be true. Domres
v. Perrigan, 760 So.2d 1028, 1029 (Fla. 5th DCA 2000); Rule 1.140(h)(2); Shay v.
First Federal of Miami, Inc., 429 So.2d 64, 65 (Fla. 3d DCA 1983)


6.    A motion for judgment on the pleadings raises only “questions of law arising
out of the pleadings.” Venditti-Siravo, Inc. v. City of Hollywood, Florida, 418
So.2d 1251, 1253 (Fla. 4th DCA 1982). Accordingly, it is improper to consider
matters outside the pleadings, including affidavits, depositions, testimony or any
other showing of fact, in ruling on a Motion for Judgment on the Pleadings.
Reinhard v. Bliss, 85 So.2d 131, (Fla. 1956); Jaramillo v. Dubow, 588 So.2d 677
(Fla. 3d DCA 1991); Pension & Welfare Fund Mid-Jersey Trucking Industry
Local 701 v. Holly Springs Golf & Country Club, Ltd., 538 So.2d 960 (Fla. 3d
DCA 1989); J & J Utility Co. V. Windmill Village by the Sea Condominium No.
1 Ass’n., 485 So.2d 36 (Fla. 4th DCA 1986).


7.    A judgment for defendants on the pleadings may only be granted when the
facts admitted in the complaint establish that Defendants are entitled to a judgment
as a matter of law. Ray v. Elks Lodge #1870 of Stuart, 649 So.2d 292 (Fla. 4th
DCA 1995); Spolski General Contractor, Inc., v. Jett-Aire Corp. Aviation
Management of Central Florida, Inc., 637 So.2d 968 (Fla. 5th DCA 1994);
Paradise Pools, Inc., v. Genauer, 104 So.2d 860 (Fla. 3d DCA 1958).


8.    The moving party admits for purposes of the motion all facts well pled by
the adversary despite their denial in the movant’s pleadings. Reinhard v. Bliss, 85
So.2d 131, (Fla. 1956). “[A]ll well-pleaded material allegations of the opposing
party are to be taken as true, and all allegations of the moving party that have been
denied are to be taken as false.” Wilcox v. Lang Equities, Inc., 588 So. 2d 318 (Fla.
3d DCA 1991). Allegations of fact in answers to which no reply is required are
likewise taken as false. Reinhard v. Bliss, 85 So.2d 131, (Fla. 1956).


9.    The pleadings include attached exhibits. Rule 1.130(b), Florida Rules of
Civil Procedure (“Any exhibit attached to a pleading shall be considered a part
thereof for all purposes”). If there is an inconsistency between the general
allegations of material facts in the complaint and the specific facts revealed by an
attached exhibit, they have the effect of neutralizing each allegation against the
other, thus rendering the pleading objectionable. Hillcrest Pacific Corporation v.
Yamamura, 727 So.2d 1053, 1056 (Fla. 4th DCA 2009).


10.   However, exhibits attached to a pleading become a part of it for all purposes
so that if an attached document negates a pleader’s cause of action or defense, the
plain language of the document will control and may be the basis for a motion to
dismiss [and by extension, a motion for judgment on the pleadings].”’ Southeast
Medical Products, Inc., v. Williams, 718 So.2d 306, 307 (Fla. 2d DCA 1998),
quoting Franz Tractor Co. v. A. I. Case Co., 566 So.2d 524, 526 (Fla. 2d DCA
1990). See also McKey v. D.R. Goldenson & Co., 763 So.2d 409 (Fla. 2d DCA
2000).

11.   Although the allegations of the Complaint must be construed most favorably
to the pleader, conclusions of law or unfounded constructions of facts are not
admitted. Ellison v. City of Fort Lauderdale, 175 So.2d 198 (Fla. 1965).’
12.   Mere statements of opinion or conclusions unsupported by specific facts will
not suffice. Okeelanta Power Ltd. Partnership v. Florida Power & Light Co., 766
So.2d 264 (Fla. 4th DCA 2000); Brandon v. County of Pinellas 141 So.2d 278
(Fla. 2d DCA 1962). The court will not be bound by bare allegations that are
unsupported or unsupportable. Other Place of Miami, Inc., v. City of Hialeah
Gardens, 353 So.2d 861 (Fla. 3d DCA 1978).’


13.   A complaint, standing alone, must state a cause of action. An insufficient
complaint cannot be saved from a motion to dismiss [and by extension, a motion
for judgment on the pleadings] by testimony at a hearing. City of Coral Springs v.
Florida National Properties, Inc., 340 So.2d 1271 (Fla. 4th DCA 1976).


14.   A mortgagee has a right to accelerate upon default in conditions of the
security agreement, such as payment of interest, installments of principal, taxes
and insurance. Clark v. Lachenmeier, 237 So. 2d 583 (Fla. 2nd DCA 1970).


15.   Ann acceleration clause in an installment note and mortgage confers a
contract right on the note and mortgage holder which holder may elect to invoke
upon default and to seek enforcement thereof. Federal Home Loan Mortgage
Corp. v. Taylor, 318 So. 2d 203 (Fla. 1st DCA 1975).


B.    Argument

16.   Plaintiff contends that all conditions precedent have occurred. Paragraph
6(B) of the Note and paragraph 9(B) of the mortgage require that the Secretary of
HUD must give approval as a condition precedent to accelerating the note and
mortgage. The Plaintiff did not plead nor prove that it had first obtained the
approval of the Secretary of HUD prior to accelerating the debt.


17.   Compliance with the default loan servicing federal regulations promulgated
by HUD, pursuant to the National Housing Act, 12 U.S.C. 1710(a) can be held to
be a contractual condition precedent to instituting a foreclosure action. Failure of
the Plaintiff to implement foreclosure avoidance servicing is an appropriate subject
for a counterclaim for declaratory and injunctive relief. U.S. v. Trimble, 86 F.R.D.
435 (S.D. Fla. 1980); Cross v. Federal National Mortgagee Association, 359 So.
2d 464, 465 (Fla. 4th DCA 1978): "A mortgage foreclosure is an equitable action
and thus equitable defenses are most appropriate [I]t appears to us that given the
purpose of ... the recommended efforts to obviate the necessity of foreclosure, any
substantial deviation from the recommended norm might be construed by the trial
court under the heading of an equitable defense." Cross, 359 So. 2d at 465. (also
see, Trimble, 86 F.R.D. 435 (S.D. Fla. 1980), where the court found that
compliance with applicable federal laws can be upheld as equitable defense to
deny a creditor the judicial remedy of foreclosure.)


18.   Plaintiff must show that it has federal authority to foreclose – that it
complied with the pre-foreclosure default prevention procedures. The failure to
obtain approval of the Secretary of HUD prior to accelerating the debt is a failure
of a condition precedent to the filing of this action.


19.   The failure of a condition precedent is a question of law arising out of the
pleadings. The failure of a condition precedent results in the Complaint failing to
state a cause of action. As a matter of law, the Defendant is entitled to a judgment
on the pleadings because the content of the pleadings demonstrates that there is a
failure of a condition precedent.

                                 II
                   MOTION FOR SUMMARY JUDGMENT

A.    Law

20.   There is no genuine issue of material fact and the Plaintiff is entitled to the
entry of a Summary Judgment of Foreclosure as a matter of law.


21.   One purpose of a foreclosure is to subject the security to an obligation
involved. Bobby Jones Garden Apartments v. Connecticut Mutual Life Insurance,
202 So. 2d 226 (Fla. 2nd DCA 1967).


22.   The institution of a foreclosure suit is the exercise of a mortgagee’s option to
declare the remaining principal sum and interest due thereon. Kreiss Potassium
Phosphate Co. v. Night, 98 Fla. 1004, 124 So. 751 (1929).


23.   A mortgagee has a right to accelerate upon default in conditions of the
security agreement, such as payment of interest, installments of principal, taxes
and insurance. Clark v. Lachenmeier, 237 So. 2d 583 (Fla. 2nd DCA 1970).


24.   An acceleration clause in an installment note and mortgage confers a
contract right on the note and mortgage holder which holder may elect to invoke
upon default and to seek enforcement thereof. Federal Home Loan Mortgage
Corp. v. Taylor, 318 So. 2d 203 (Fla. 1st DCA 1975).
25.   WHEREFORE, the Plaintiff moves this Court for the entry of Judgment on
the Pleadings and an award of attorneys fees and costs.




B.    Argument
      i.     Failure to Accelerate
26.   Plaintiff contends that all conditions precedent have occurred. Paragraph
6(B) of the Note and paragraph 9(B) of the mortgage require that the Secretary of
HUD must give approval as a condition precedent to accelerating the note and
mortgage. The Plaintiff did not plead nor prove that it had first obtained the
approval of the Secretary of HUD prior to accelerating the debt.


27.   Compliance with the default loan servicing federal regulations promulgated
by HUD, pursuant to the National Housing Act, 12 U.S.C. 1710(a) can be held to
be a contractual condition precedent to instituting a foreclosure action. Failure of
the Plaintiff to implement foreclosure avoidance servicing is an appropriate subject
for a counterclaim for declaratory and injunctive relief. U.S. v. Trimble, 86 F.R.D.
435 (S.D. Fla. 1980); Cross v. Federal National Mortgagee Association, 359 So.
2d 464, 465 (Fla. 4th DCA 1978): "A mortgage foreclosure is an equitable action
and thus equitable defenses are most appropriate [I]t appears to us that given the
purpose of ... the recommended efforts to obviate the necessity of foreclosure, any
substantial deviation from the recommended norm might be construed by the trial
court under the heading of an equitable defense." Cross, 359 So. 2d at 465. (also
see, Trimble, 86 F.R.D. 435 (S.D. Fla. 1980), where the court found that
compliance with applicable federal laws can be upheld as equitable defense to
deny a creditor the judicial remedy of foreclosure.)
28.   Plaintiff must show that it has federal authority to foreclose – that it
complied with the pre-foreclosure default prevention procedures. The failure to
obtain approval of the Secretary of HUD prior to accelerating the debt is a failure
of a condition precedent to the filing of this action.


29.   Plaintiff failed to obtain prior approval of the Secretary of HUD to
accelerate the debt. The failure of a condition precedent results in the Complaint
failing to state a cause of action. As a matter of law, the Defendant is entitled to
summary judgment because the Plaintiff failed to prove it complied with a
condition precedent to the filing of this action.


30.   In Jeff-Ray Corporation v. Jacobson, 566 So.2d 885 (Fla. 4th DCA, 1990),
the Court dismissed the Complaint for lack of a cause of action at the time the
Complaint was filed because the document upon which the action rested was not
created until after the Complaint was filed.


31.   WHEREFORE, the Plaintiff moves this Court for the entry of Summary
Judgment of Foreclosure, and an award of attorneys fees and costs.


      ii.    Plaintiff’s stated basis for acceleration
             - lack of insurance - was patently false

32.   Plaintiff had obtained insurance on the property, at Defendants expense, and
notified her that the insurance would expire on March 31, 2012, but would be
renewed at her expense. (Verified Answer, paragraph 22; Also see Verified
Answer, Exhibit A)
33.   Plaintiff filed this action on March 20, 2012.


34.   There was insurance on the property at the time Plaintiff filed this action.
The Defendant paid for that insurance. Wherefore, Defendant was not in default
when this action was filed. In Jeff-Ray Corporation v. Jacobson, 566 So.2d 885
(Fla. 4th DCA, 1990), the Court dismissed the Complaint for lack of a cause of
action at the time the Complaint was filed because the document upon which the
action rested was not created until after the Complaint was filed.


35.   WHEREFORE, the Plaintiff moves this Court for the entry of Summary
Judgment of Foreclosure, and an award of attorneys fees and costs.




                                        __________________________
                                       George Gingo, Esq. FBN 875933
                                       James E. Orth, Jr., Esq. FBN 75941
                                       2215 Garden Street, Ste. B
                                       Titusville, FL 32754
                                       (321) 264-9624
                                       (866) 311-9573


                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been
furnished by U.S. Mail, this 4th day of June, 2012, Tanya Simpson, SMITH,
HIATT & DIAZ, P.A. P.O. Box 11438 Fort Lauderdale, FL 33339.


______________________________
George Gingo

				
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