IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN

AND FOR ORANGE COUNTY, FLORIDA

ONEWEST BANK, FSB Case No. 09-CA-32716

Plaintiff,

v.

JULIO VELGARA, et al,

Defendant(s).
_______________________________/

MOTION TO DISMISS PLAINTIFF’S COMPLAINT

COMES NOW the Defendant, JULIO VELGARA, by and through undersigned

counsel, and pursuant to Rules 1.130(a) and 1.420 of the Florida Rules of Civil
Procedure, hereby request this Honorable Court for an Order dismissing the Complaint
filed by the Plaintiff, ONEWEST BANK, FSB. The Plaintiff’s Complaint must be
dismissed for the following reasons: first, the Plaintiff has failed to attach
documents alleging that it is the owner and holder of the note and mortgage as
alleged in Count I of its Complaint; and second, the Plaintiff is not entitled to
reestablish the lost note in Count II of the Complaint because it has failed to
produce or attach documents demonstrating that it is the owner and holder of the
note and mortgage and entitled to enforce the provisions of each. Therefore, the
Plaintiff’s Complaint must be dismissed. In support of thereof, the Defendant states
the following:

A. PROCEDURAL HISTORY

1. On or about October 23, 2009, the Plaintiff filed a Mortgage Foreclosure

Complaint in the above styled cause.

2. On or about October 31, 2009, the Defendant was served copies of the Complaint,
Notice of Lis Pendens and a summons.

B. RELEVANT FACTS

3. In the Complaint, the Plaintiff alleged that it was seeking to foreclose on property
located and situated in Orange County, Florida.

4. On or about December 4, 2006, the Plaintiff alleged that the Defendant executed
and delivered a promissory note and mortgage.

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5. The mortgage was allegedly recorded in the public records of Orange County,
Florida on or about January 5, 2007.

6. According to the mortgage attached to the Plaintiff’s Complaint, Mortgage

Electronic Registration Systems, Incorporated, (hereinafter referred as “MERS”),
is the nominee for the lender and the mortgagee.

7. In its Complaint, the Plaintiff alleges that it holds the mortgage by virtue of an
assignment. However, the Plaintiff failed to attach a copy of the assignment
to its Complaint.

8. The Plaintiff alleges that it is the owner and holder of the note and mortgage. The
Plaintiff’s Complaint fails to identify the alleged owner and holder of the
note and mortgage. If there is such an owner, the Plaintiff’s Complaint fails
to attach documents thereby identifying the owner and holder of the note
and mortgage. As such, the Plaintiff does not have any establishing said
standing to enforce the provisions of the mortgage and the note.

9. The Plaintiff alleges in its Complaint that the Defendant defaulted under the
promissory note and mortgage by failing to make payments under the promissory
note and mortgage.

10. The Plaintiff declares that the full amount under the note and mortgage is payable
to it. The Plaintiff alleges that the Defendant owes the Plaintiff $176,000.00, in
principal, interest from July 1, 2009.

11. The Plaintiff alleges in its Complaint that it has complied with the Fair Debt
Collection Practices Act. However, the Plaintiff has failed to establish that it
advised the Defendants that they were in default of the mortgage and note,
and as such, all amounts due were payable.

12. The Plaintiff failed to establish that the Defendants received the notice letter
as required by the Fair Debt Collection Practices Act. As such, the
Defendants were denied an opportunity to dispute the alleged debt.

13. In its Complaint, the Plaintiff failed to identify the owner and holder of the
note and mortgage and failed to produce any documents demonstrating that
it is the owner and holder of the note and mortgage.

C. LEGAL STANDARD

14. When considering a motion to dismiss, the trial court must look only to the four
corners of the complaint, assume the allegations therein to be true and draw all
reasonable inferences in favor of the pleader. See Bolz v. State Farm Mut. Ins.
Co., (Fla. 2nd DCA 1996); Provence v. Palm Beach Tavern, Inc., 676 So.2d 1022

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 (Fla. 4th DCA 1996); Shahid v. Campbell, 552 So.2d 321 (Fla. 1st DCA 1989).
However, the complaint must allege all facts necessary for a cause of action and
comply with the applicable rules and laws. See Loveland v. Lazzara, 219 So.2d
74, 76 (Fla. 2nd DCA 1969).

D. ANALYSIS

Count I of the Complaint must be dismissed because the Plaintiff failed to

attach documents alleging or demonstrating that it is the owner and holder
of the note and mortgage.

15. Florida Rules of Civil Procedure, Rule 1.130(a), provides that “[a]ll bonds, notes,
bills of exchange, contracts, accounts or documents upon which action may be
brought or defense made, or a copy thereof or a copy of the portions thereof
material to the pleadings shall be incorporated in or attached to the pleading.”

16. Rule 1.420(b) provides that “[a]ny party may move for dismissal of action or of
any claim against that party for failure of an adverse party to comply with these
rules . . . “

17. A failure to comply with Rule 1.130(a) is grounds for dismissal of the action. See
Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990) citing Safeco
Insurance Co. v. Ware, 401 So.2d 1129 (Fla. 4th DCA 1981).

18. As discussed earlier in this motion, the Plaintiff alleges that it is the owner and
holder of the note and the mortgage. The Plaintiff alleges that it is the holder of
the mortgage by virtue of an assignment.

19. The Plaintiff failed to attach the assignment to its Complaint despite alleging it is
the holder of the mortgage.

20. The Plaintiff failed to attach any documents alleging or demonstrating that it is
the owner and holder of the note and mortgage.

21. These allegations serve as the basis for the Plaintiff’s claim. As such, said
documents must be attached to its Complaint.

22. As such, for the foregoing reasons, the Count I of the Plaintiff’s Complaint must
be dismissed.

WHEREFORE, the Defendant respectfully requests this Honorable Court to

enter an Order dismissing Count I of the Plaintiff’s Complaint, award him his
attorney’s fees and costs and such further relief deemed appropriate under the
circumstances.

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 Count II of the Plaintiff’s Complaint must be dismissed because the Plaintiff
is not entitled to reestablish the lost note because it has failed to produce or
attach documents demonstrating that it is the owner and holder of the note
and mortgage and entitled to enforce the provisions of each.

23. In a mortgage foreclosure action, a lender is required to either present the original
promissory note or give a satisfactory explanation for the lender’s failure to
present it prior to it being enforced. See National Loan Investors, L.P., v. Joymar
Associates, et al., 767 So.2d 549, 551 (Fla. 3rd DCA 2000).

24. A limited exception applies for lost, destroyed or stolen instruments, where it is
shown that the person was in possession of the instrument and entitled to enforce
it when loss of possession occurred. See id, citing Florida Statutes Section
673.3091.

25. As discussed in this motion, the Plaintiff has failed to provide documents alleging
or demonstrating that it is the owner and holder of the note and the mortgage. As
such, the Plaintiff is not entitled to enforce the provisions of the note and the
mortgage. See id.

26. The Plaintiff failed to provide documents demonstrating that it was in possession
of the note and entitled to enforce the note when loss of possession occurred.

27. The Plaintiff alleges in its Complaint that the State of Florida and/or the Clerk of
the Circuit Court of Orange County may have a judgment recorded on or about
March 8, 2006 with said judgment being attached to the subject property. The
Plaintiff alleges that it attached a copy of the judgment to its Complaint.
However, the Plaintiff’s Complaint does not have the judgment attached to its
Complaint.

28. Count II should be dismissed for three reasons: first, the Plaintiff has failed to
demonstrate that it is the owner and holder of the note and mortgage; second, the
Plaintiff has failed to demonstrate that it is entitled to enforce the provisions of the
note and the mortgage; and third, the Plaintiff failed to demonstrate that it was
possession of the note and entitled to enforce its provisions when loss of
possession occurred. As such, the Plaintiff should be barred from seeking to
reestablish the lost note in its Complaint pursuant to Florida Statutes Section
673.3091.

29. As such, for the foregoing reasons, Count II of the Plaintiff’s Complaint must be
dismissed.

WHEREFORE, the Defendant respectfully requests this Honorable Court enter

an Order dismissing Count II of the Plaintiff’s Complaint, award him attorney’s
fees and costs and such further relief as deemed appropriate under the
circumstances.

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 WHEREFORE, the Defendant respectfully requests this Honorable Court enter an
Order dismissing the Plaintiff’s Complaint, award him attorney’s fees and costs and any
such further relief as deemed appropriate under the circumstances.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the forgoing was furnished via mail or
facsimile to Lindsay R. Dunn, Esquire, Law Offices of Daniel C. Consuegra, 9204 King
Palm Drive, Tampa, Florida 33619-1328, on this __13th____ day of
___November____________, 2009.

Rudolph, Gotschall & Osborne, P.A.

Blackstone Law Group
931 South Semoran Boulevard
Suite 202
Winter Park, Florida 32792
(407) 691-3929/(407) 691-3928 (Fax)
Attorneys for Defendant

By:_/David Osborne/______________________
David Osborne, Esquire
Florida Bar # 0513911

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