Foreclosure Defense – Motion to Dismiss

I get asked whether you get your house for free if the mortgage lender can't find
your promissory note. The answer to that is, except perhaps in some rare instance
where other factors are involved, "No." The lender can still show you accepted
the principle loan money and that it would be unfair for you to keep your house
mortgage free and keep the money.

However, if the lender's documentation is NOT in order, the standard foreclosure

suit they attempt to force through the court system becomes more difficult and
may be subject to dismissal.

This Foreclosure Defense Form is a general outline of a Motion to Dismiss used

in cases where a lender filed and served a foreclosure complaint and there were
grounds to dismiss. This Motion to Dismiss attacks the problem of the lender
not being the proper holder of the promissory note.

Nickolas C. Ekonomides
Attorney at Law
www.eko-law.com

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION

BANK, INC., AS TRUSTEE FOR

LENDER, LLC

Plaintiff, CASE NO: ______________

v. DIVISION: _____

HOMEOWNER,

Defendant.
______________________________________/

MOTION TO DISMISS

Defendant, HOMEOWNER (“Defendant”), moves to dismiss this action and states:

NICKOLAS C. EKONOMIDES, P.A. | CLEARWATER FLORIDA | 727-447-1075

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 1. Defendant’s home, encumbered by a mortgage and promissory note made to and first
held by LENDER, LLC (“LENDER”), is the property at issue in this foreclosure action.
2. The Plaintiff, BANK, INC., (“BANK”) and not LENDER, nor any intervening assignee of
LENDER, filed this foreclosure action allegedly as owner and holder of the note (see para. 5 of complaint)
on June 4, 2009, and served same on January 22, 2011.
3. BANK filed its original Assignment of Mortgage (“Assignment”) with the court on or
about April 4, 2011, which Assignment is dated February 14, 2011, (“Assignment Date”).
4. BANK also brings a count for reestablishment of promissory note pursuant to section
673.3091, Florida Statutes.
5. This motion is timely since a party may "plead or otherwise defend at any time before
default is entered." Rule 1.500(c), Fla.R.Civ.P. See also Irwindale Co., v. Three Islands Olympus, 474 So.2d
406 (Fla. 4th DCA 1985).

NOTICE OF DEFAULT
6. In the Definitions of the subject mortgage, Paragraph (B) defines:
a. “Borrower” as HOMEOWNER his wife, and
b. “Lender” as LENDER.
7. Section 22 of the subject mortgage provides the content of the notice to be provided to
Borrower by Lender upon default and prior to Lender being able accelerate the loan.
8. The law is well settled in Florida (and the mortgage contains a provision) requiring that
the Lender must give the “Borrowers” notice of the loan default and an opportunity to cure the default
before the loan can be accelerated.
9. BANK fails to allege it as Lender gave proper written notice of default and acceleration
to Defendant as required by the mortgage and law and fails to allege sufficiently how BANK could have
given required thirty (30) day notice prior to filing the action, which it did on June 4, 2009, and served on
January 22, 2011, when by its own filing of the Assignment, did not own the mortgage and note until the
Assignment Date of February 14, 2011.

STANDING
10. BANK has not alleged in any respect how it has standing to foreclose on the LENDER

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note and mortgage attaching only a copy of the note and mortgage made to LENDER to its complaint as
Exhibits “A” and “B.”
11. BANK’s allegations that it is the owner and holder of the note and mortgage (see para. 5
of the complaint) belie the truth because of the Assignment it filed almost 2 years after filing the
complaint because:
a. BANK is suing in foreclosure;
b. On a note and mortgage made to LENDER; and
c. The Assignment giving BANK title to the note and mortgage occurred on the
Assignment Date over a year and a half after it filed the complaint.
12. Plaintiff cannot maintain this action. A person suing to foreclose must have the right to
foreclose when he files the lawsuit. Post lawsuit assignments establish the lender did not own the note
and mortgage at time of filing.

REESTABLISHMENT OF PROMISSORY NOTE

13. Though the right to enforce a promissory note and mortgage once in the possession of
an assignor can be assigned though the note and mortgage be lost, BANK fails to allege who lost the
note and whether it was lost at the time of filing of suit or as of the Assignment Date.
14. It is insufficient to merely allege that the note is lost and repeat verbatim the separate
clauses of section 673.3091, Florida Statutes. Rather, pursuant to section 673.3091, Florida Statutes an
owner of a lost, stolen, or destroyed instrument must allege facts establishing he is prevented from
producing the original instrument.
15. BANK, for example, fails to allege when BANK first came into possession of the note and
mortgage, where same were stored, the date as of which BANK realized it was no longer in possession of
the note and mortgage, and the steps BANK took as a result.

CONCLUSION
16. BANK cannot establish it gave notice, has the right to foreclose, or has the right to
enforce the lost note because it filed this action on June 4, 2009, and served same on January 22, 2011,
but did not take assignment of the note and mortgage until February 14, 2011.
17. BANK has clearly failed to plead necessary facts to this Court relative to the alleged
assignment and lost note which hide the actual fact that BANK has no standing to bring this action.

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 18. This foreclosure action must be dismissed.

WHEREFORE, the Defendant moves this court grant this motion to dismiss.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been served by U.S. Mail, [___] facsimile, and
[____] email delivery this ____ day of _____________ 20____, to: Law Offices, 555 Main Street, Miami,
Florida 33111.

________________________________________
Nickolas C. Ekonomides
NICKOLAS C. EKONOMIDES, P.A.
791 Bayway Boulevard
Clearwater, Florida 33767
Telephone No. (727) 447-1075
Fax No. (727) 447-1035
www.eko-law.com
Attorney for Defendant

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