IN THE COUNTY COURT OF

THE FOURTH JUDICIAL CIRCUIT

IN AND FOR DUVAL COUNTY,
FLORIDA

CASE NO.:16-2009-CC-6304
DIVISION:
LVNV FUNDING, LLC AS ASSIGNEE
OF SEARS , Plaintiff

vs.

MARGARET MASSEY, Defendant

________________________________/

MOTION TO DISMISS PLAINTIFF=S AMENDED COMPLAINT FOR

DAMAGES

COMES NOW the Defendant, MARGARET MASSEY, by and through her

undersigned attorneys and respectfully requests this Honorable Court dismiss
the Plaintiff=s Complaint. In support of this motion, Defendant states:
1. Plaintiff filed this action against Defendant alleging a claim for damages
based on a chose in action (not contractual rights) based on a credit debt that
plaintiff claims it owns by way of assignment.
2. Florida law and rules of procedure require that in order for the
plaintiff to state a claim based on a chose in action that the plaintiff attach a copy
of the assignment of the chose in action to support a claim for damages and/or to
support an unjust enrichment claim.
3. Plaintiff has not met its pleading burden in this cause. Warring v.
Winn-Dixie Stores, Inc., 105 So 2d. 915 (Fla 3rd D.C.A. 1958).
4. Although a chose in action, including a claim for unjust enrichment,
can be assigned under Florida law, the requisites for a valid assignment of a
chose in action must be presented as a part of the plaintiff’s initial pleading in
order for a valid claim to be stated.
5. Although the plaintiff references an “account”; a request for “an
account in the name of the defendant”; an “account number 121079620092762”;
that “SEARS has assigned the chose in action”; and that “demand for payment”
has been made, plaintiff fails to attach a single document as required by the rules
of procedure applicable to this action to support its claims.
6. The failure of the plaintiff to attach any contract deprives the
defendant and this court of any practical ability to determine the nature, character
or status of the debt; when the debt was incurred; what the contract says; any
invoices or documentation of the existence of the underlying debt or of the
plaintiff’s ownership of said debt or the chose in action.
7. Defendant has not been presented with a complaint that sufficiently
states a claim upon which relief can be granted and the complaint of the plaintiff
is vague and uncertain as to deprive and deny defendant any ability to respond
further to the confusing and opaque claims of the plaintiff.
8. The plaintiff’s complaint filed in this action presents the court with a
total failure of factual allegations of any debt or any assignment of a chose in
action or a right to payment that support plaintiff’s claim of damages or unjust
enrichment.
9. This lack of factual pleading is sufficient basis for the court to
dismiss the plaintiff’s complaint.
10. Additionally, an assignment of an equitable claim such as unjust
enrichment is only allowed when there is no written contract.
11. The law requires the plaintiff to attach documents upon which its
claim based on an assignment of a chose in action including an unjust
enrichment claim is based.
12. The Plaintiff has not sustained its pleading burden in this action and
the defendant’s motion to dismiss should be granted.
13. Further, Plaintiff failed to attach the Notice of Assignment required
by Section 559.715, Florida Statutes, which provides, in pertinent part, A..the
assignee must give the debtor written notice of such assignment within 30 days
after the assignment.@
 14. Defendant seeks reasonable attorney=s fees pursuant to the

provisions of any applicable contract; rule of procedure and the Florida

Consumer Collection Practices Act.

WHEREFORE, Defendant respectfully requests this Court grant her

Motion and dismiss the plaintiff’s Complaint for failure to state a claim and for
failure to evidence or otherwise comply with Section 559.715, as referenced,
award the Defendant reasonable attorney=s fees as authorized by rule of
procedure, contract and/or statute and for all other relief as the Court may deem
appropriate.
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and that a true and correct copy of the
foregoing has been furnished by United States Mail delivery, this motion to
dismiss to Robert Orovitz, Hayt, Hayt & Landau, P.L., 7765 S.W. 87 Avenue, Suite
101, Miami, FL. 33173 Attorneys for Plaintiff, this 15th day of April, 2011.
_______________________________
April Charney, Esquire
Jacksonville Area Legal Aid, Inc.
126 W. Adams St.
Jacksonville, Florida 32202
Telephone: (904) 356-8371
Fax (904) 224-1587
april.charney@jaxlegalaid.org
Counsel for Defendant