IN THE CIRCUIT COURT OF THE xxxxxxx JUDICIAL CIRCUIT

IN AND FOR xxxxxx COUNTY FLORIDA

CASE NUMBER: XXXXXXX

Division xx

BRANCH BANKING AND TRUST COMPANY,

Plaintiff,

vs. VERIFIED
MOTION TO DISMISS

XXXXXXXX and XXXXXXXX,

Defendants.
__________________________________________________/

DEFENDANTS, XXXXX AND XXXXX’S

VERIFIED MOTION TO DISMISS TO WITH PREJUDICE,
INCLUSIVE OF SUPPORTIVE LEGAL ARGUMENTS

COME NOW, the Defendants, XXXXXXXX and XXXXXXXXXX (hereafter,

“Defendants), by and through the undersigned counsel, and respectfully move the DISMISS

THE FORECLOSURE ACTION WITH PREJUDICE regarding the above entitled civil action,

pursuant to Rules 1.540(a), 1.540(b), 1.110 (b) 1.120, 1.120(b), 1.120(a), 1.130(a) and 1.140(b)

(6), Fla. R. Civ. P. and precedent case law and in support states:

Florida Rule of Civil Procedure 1.540 (b) provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or a

party’s legal representative from a final judgment, decree, order or proceeding for

the following reason: (1) mistake, inadvertence, surprise or excusable neglect; …

(3) fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct or an adverse party; (4) that the judgment

 or decree is void;….This rule does not limit the power of a court to entertain an

independent action to relieve a party from a judgment, decree, order or proceeding

or to set aside a judgment or decree for fraud upon the court.

A: STANDARD OF REVIEW FOR MOTION TO DIMISS:

1. In ruling on a defendant's motion to dismiss, a trial court is limited to the four corners

of the Complaint, and it must accept all the allegations in the Complaint as true. See Lutz Lake

Fern Rd. Neighborhood Groups, Inc. v. Hillsborough County, 779 SO.2d 380, 383 (Fla. 2d DCA

2000). However, exhibits attached to a Complaint are a part of the Complaint. See Bott

v. City of Marathon, 949 So.2d 295 (Fla 3rd DCA 2007) ("when considering a motion to

dismiss, a trial court is required to consider any exhibit attached to, or incorporated in the

pleading"). See also Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3rd DCA

1971) (stating "[i]n considering a motion to dismiss the trial court was required to consider the

exhibit ... attached to and incorporated in the amended complaint" and quoting Florida Rule of

Civil Procedure 1.130(b), providing that "[a]ny exhibit attached to a pleading shall be considered

a part thereof for all purposes"). As such, an exhibit attached to a Complaint is a part of the

Complaint and may be considered when ruling on a motion to dismiss. Considering exhibits

attached to a Complaint does not violate the "four corners" rule. Further, exhibits attached to a

Complaint must agree with the allegations of the Complaint, and where to two do not agree, the

exhibits control. See also, Geico Gen. Ins. Co. V. Graci, 849 So.2d 1196 (Fla. 4th DCA 2003)

and Ginsberg v. Lennar Fla. Holdings, Inc. 645 So.2d 490, 494 (Fla. 3rd DCA 1994) (where

exhibits contradict complaint allegations, plain meaning of exhibits control). Harry Pepper &
Associates V. Lasseter, 247 So.2d 736 (Fla. 3rd DCA 1971) and see HIt Application Sys. V.

Hartford Life, 381 So.2d 294 (Fla. 1st DCA 1980).

B. DEFENDANTS’ ARGUMENTS FOR MOTION TO DISMISS:

I. BRANCH BANKING AND TRUST COMPANY’S MISCONDUCT. UNCLEAN

HANDS, AND BAD FAITH DURING DEFENDANTS’ PRO SE ATTEMPTED
NEGOTIATIONS WITH LENDER COLONIAL BANK, ITS SERVICING AGENTS
AND/OR REPRESENTATIVES -- RESULTING IN DEFENDANTS’ “SURPRISE” AT
THE COMMENCEMENT OF THE INSTANT FORECLOUSRE ACTION.

1. The separate Defendants do not recognize the Plaintiff, BRANCH BANKING AND

TRUST COMPANY (hereafter, “Purported Plaintiff or Purported Plaintiff “BB&T”) as any

entity known to them, nor have they ever entered into any note, mortgage, or other contract or

agreement with Purported Plaintiff, its servicing agents and/or representatives.

2. The Purported Plaintiff, failed at the commencement of its foreclosure suit to timely

demonstrate that it is the actual holder, or represents a true holder in due course of the

promissory note and mortgage. Although, Purported Plaintiff alleges in paragraph two (2) of its

Complaint that it “…is successor in interest to Colonial Bank, f/k/a/ Colonial Bank, N.A.

(“Colonial Bank”), by asset acquisition from the F.D.I.C. dated August 14, 2009” – the

Purported Plaintiff does not provide any such document attached to its Complaint, particularly

showing proof of acquisition of the instant “certain” loan associated with the instant “certain”

Defendants.

3. The previous assertion is valid and important because Defense counsel has discovered

a Branch Banking & Trust Company official press release entitled, BB & T Acquires Deposits

and Certain Assets of Colonial Bank (Italics Emphasis Added). (SEE EXHIBIT A). At about

paragraphs four (4) and five (5) of the official press release it states as follows:
 “…BB&T will not acquire any of the assets or assume any obligations of
Colonial’s holding company or select assets and liabilities of Colonial Bank….”

Also excluded are assets and liabilities the FDIC determines are related to
fraudulent or criminal activities. BB&T is indemnified by the FDIC for any
liabilities not expressly assumed in the transaction, including those related to
fraudulent, criminal or inappropriate activities of Colonial. (Emphasis Added).

4. The Purported Plaintiff has not shown any proof of acquisition or purchase of the Note

and Mortgage, whatsoever, pertaining to the particular and “certain” property asset or loan

owned by the instant “certain” Defendants. In other words, Purported Plaintiff (“BB&T”) has

not presented any proof, whatsoever, of acquisition of the “certain” asset or loan associated with

the instant “certain” Defendants. Consequently, Purported Plaintiff lacks standing and also

lacks capacity to bring the instant foreclosure action against the Defendants. Note: Lack of

Standing and also Capacity discussed in further detail below.

5. The Defendants have been taken by “surprise” at the commencement of the instant

foreclosure action, inasmuch as Defendants. PRO SE, had been in on-going negotiations with

Colonial Bank regarding the property at issue, as well as other properties, when suddenly on or

about (xxxdate), and without warning, the Purported Plaintiff (“BB&T”) (without proof of

acquisition or proof of purchase of the Defendants particular loan) abruptly interrupted and

“shut-down” the negotiations that had been on-going (and were bearing fruit) between Colonial

Bank and Defendants. As proof of this assertion Defendants present one letter of such

negotiations addressed to “Colonial Bank, attn XXXXXXXX (name) [V.P of Assets].”

However, Defendants do not limit their proof of the described negotiations to this one letter and

will provide the Court with any additional proof of the on-going negotiations as the court may

require. See the attached exemplary negotiation letter (EXHIBIT B).

 6. Moreover, the Purported Plaintiff (“BB&T”), again, suddenly on or about (XXXX

date), and without warning, essentially “raided” the Defendants’ various Colonial Bank

accounts of approximately $_________. Although Purported Plaintiff (“BB&T”) presented no

proof of acquisition or proof of purchase of Defendants’ particular loan(s), through its legal

counsel, the Purported Plaintiff informed Defendants counsel of the event (after-the-fact), in a

letter dated xxxxx(date) and addressed to Defendants’ counsel, XXXXXXXXXX (name). (SEE

EXHIBIT C), claiming as follows:

“The Borrowers have accounts with BB&T, and BB&T has exercised its
right to set off these accounts against the balances owing under the loans.”

To reiterate: The Purported Plaintiff, without proof of acquisition of the instant “certain” loan

associated with the instant “certain” Defendants, suddenly and without warning “raided” the

Defendants’ various Colonial Bank accounts and did not divulge this unauthorized access and

raiding of the Defendants’ various accounts until after-the-fact.

7. IF CLIENTS CASE DOES HAVE A NOTE AND MORTGAGE ATTACHED…

ATTACK THE LANGUAGE. FOR EXAMPLE:

“Neither the attached purported Note and/or Mortgage contains any language,

whatsoever, identifying the Plaintiff has the owner or holder of the Note and/or

Mortgage. Refer to “A. Standard of Review for Motion to Dismiss” – above:

“Exhibits attached to a Complaint must agree with the allegations of the Complaint, and

where to two do not agree, the exhibits control.” See also, Geico Gen. Ins. Co. V. Graci,

849 So.2d 1196 (Fla. 4th DCA 2003) and Ginsberg v. Lennar Fla. Holdings, Inc. 645

So.2d 490, 494 (Fla. 3rd DCA 1994) (where exhibits contradict complaint allegations,

plain meaning of exhibits control). Harry Pepper & Associates V. Lasseter, 247 So.2d
 736 (Fla. 3rd DCA 1971) and see HIt Application Sys. V. Hartford Life, 381 So.2d 294

(Fla. 1st DCA 1980).

WHEREFORE, the above verified assertions, this Honorable Court, should take judicial

notice that Purported Plaintiff and/or its servicing agents and representatives have made obvious

misrepresentations and engaged in misconduct, unclean hands, and bad faith so as it should

shock the senses of this Honorable Court. Further, the Court should further exercise its broad

judicial discretion and enter an Order to DISMISS this civil action WITH PREJUDICE.

NOTE: CHECK ALL SUBSEQUENT NUMBERING……

II. LACK OF STANDING:

NO DOCUMENTATION OF ACQUISITION OR PROOF OF PURCHASE OF THE
“CERTAIN ASSET/DEBT”ASSOCIATED WITH THE PROPERTY AND LOAN
ASSOCIATED WITH THE INSTANT DEFENDANTS; DOCUMENTATION NOT
PRESENTED AT COMMENCEMENT OF SUIT;
“RELATION BACK RULE” REJECTED IN THIS CONTEXT

7. The Purported Plaintiff (“BB&T”) failed at the commencement of its foreclosure suit to

timely demonstrate that it was the actual holder, or represents a true holder) in due course of the

“certain” promissory note and mortgage. By way of instance and without limiting the scope of

this jurisdictional objection, the Purported Plaintiff failed to show, just how it came to represent

or to hold and own the “certain” note and mortgage as a real party in interest, nor as a party in-

equity, nor as a representative of any true holder. Stated another way: The Purported Plaintiff

failed to attach any documentation, whatsoever, to its originally filed Complaint (i.e. Acquisition

Agreement of the “certain” loan associated with the instant Defendants, or any Assignment),

establishing standing as a real party in interest or as a representative of a true holder. Nor did
purported Plaintiff attach any other type of documentation, whatsoever, showing “…proof of

purchase of the [“certain”] debt” establishing standing as a party in-equity (or standing as a

representative of a true party in-equity). WM Specialty Mortgage, LLC v. Salomon, Case No.

4D03-3318 (FL 5/26/2004) (Fla. 4th DCA, 2004). Citing Johns v. Gillian, 184 So. 143-144 (Fla.

1938) (hereafter, “WM Specialty). Consequently, purported Plaintiff’s assertions are conclusory

and wholly without factual support. Accordingly, the purported Plaintiff has failed to show that,

as a threshold matter, it has standing to bring its suit against Defendants and, without standing at

the commencement of the suit, any “four corners” argument purported Plaintiff may attempt is

moot, and its claim must fail as a matter of law.

8. More specifically, “[a] claimant’s standing to bring an action is distinct from questions

arising from the claimant’s noncompliance with one or more conditions precedent to maintaining the

action.” (Emphasis Added). Progressive Express Insurance Company v. McGrath Community

Chiropractic, 913 So.2d 1284 (Fla 2nd DCA 2005). (hereafter, Progressive v. McGrath) . Furthermore,

with respect to standing created through valid assignments (or some other proof of purchase of the debt,

as required by Wm Specialty), yet not timely attached to the complaints, Progressive v. McGrath rejects

the rule of “Relation Back” (i.e. allowing cure through Amendments [or subsequent Notices of Filing] in

this context). The Second District Court of Appeal in Progressive v. McGrath clearly explains as

follows:

“This rule does not permit a party to establish the right to maintain an action
retroactively by acquiring standing to file a lawsuit after the fact. In this case if the
[Plaintiff] was without standing when the action was filed, the…action was, at best,
premature. See Livingston [v State Farm Mut. Auto. Ins. Co.], 774 So.2d at 717. A
new lawsuit must be filed. See Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla 4th
DCA 1990) (holding that the assignee of a mortgage could not maintain the
mortgage foreclosure action because the assignment was dated four months after
the action was filed; if the plaintiff wished to proceed on the assignment, it must file
a new complaint). In relying on the rule 1.190(c) and the “relation back” rule to
cure the [Plaintiff’s] lack of standing when it filed the original complaint, the circuit
court applied the incorrect law. (Underline Emphasis Added). Id. at 1286.
 9. In further clarification the Second District Court of Appeal, again in Progressive v.

McGrath, states, “…[T]he general rule…is that the right of a plaintiff to recover must be

measured by the facts as they exist when the suit [is] instituted.” (Emphasis Added). Id at 1285

(Citing the supreme court, Voges v. Ward, 98 Fla, 304, 123 So.2d 793 (1929). Moreover, “…the

purported Plaintiff’s lack of standing at the inception of the case is not a defect that may be

cured by the acquisition of standing after the case is filed.” Progressive v. McGrath, 913 So.2d

1285 (Fla 2nd DCA 2005). (Emphasis Added). Finally, to make the rule perfectly clear as regards

assignments (or some other proof of purchase of the debt, as required by Wm Specialty) and their

importance to creating standing at the inception of the action, the Second District Court of

Appeal plainly states:

“Thus the assignment [or some other proof of purchase of the debt]…is not
merely a condition precedent to maintain an action on a claim held by the
person or entity who filed the lawsuit. Rather, it is the basis of the claimant’s
standing to invoke the processes of the court in the first place.” (Underline
Emphasis Added). Id at 1285.

10. It should be noted to this Honorable Court that, although Progressive v. McGrath is a

case dealing with PIP benefits and assignment to the rights to recover PIP benefits, the Court of

Appeal in Progressive v. McGrath decidedly expressed its concern of the “relation back rule” in

similar suits as the instant case when it expressed as follows:

“We disagree [with the circuit court]. The circuit court's decision establishes
a rule of general application concerning the relation back of amended
pleadings to remedy the claimant's lack of standing when an action is filed.
This rule has the potential to be applied not only in PIP cases, but also in
mortgage foreclosure cases where assignments are common.” (Underline
and Emphasis Added). Id at 1287.
Consequently, yet again, the Purported Plaintiff (BB&T”) in the instant mortgage foreclosure

case -- through its failure to attach the its purported acquisition agreement or some other proof
of purchase of the debt, has failed to show that, as a threshold matter, it has standing to bring its

suit against Defendants and, without standing at commencement of suit, any “four corners”

argument purported Plaintiff may attempt is moot, and its claim must fail as a matter of law.

Consequently, WM Specialty (i.e. “upon proof of purchase of the debt”) interpreted with and

augmented by Progressive v. McGrath (i.e. “relation back of amended pleadings to remedy the

claimant’s lack of standing [cannot be applied]”) require this Honorable Court to Dismiss the

Plaintiff’s Complaint and cause of action.

11. Further, the purported Plaintiff has failed to attach true and correct copies of all

documents to its originally filed Complaint, which either support its cause of action or the

Defendants’ defense. This is prejudicial because it does not adequately inform the Defendants as

to the identity of the true holder or owner of the note and mortgage, or to what they need to

defend against to avoid a great deprivation and miscarriage of justice – the loss of their property.

To reiterate: “Relation back” cannot be applied to remedy lack of standing.

WHEREFORE, accordingly, Purported Plaintiff (“BB&T”) lacks standing and

Defendants are being deprived of their fundamental rights to procedural due process of law as

guaranteed under the Florida and United States Constitutions and, therefore, this Honorable

Court should DIMISS this civil action WITH PREJUDICE.

III. LACK OF CAPACITY:

NO PROOF THAT PURPORTED PLAINTIFF (“BB&T”) ACQUIRED THE
“CERTAIN” LOAN ASSOCIATED WITH THE INSTANT DEFENDANTS –
“RELATION BACK RULE TO CURE NOT ALLOWED.

12. Florida Rules of Civil Procedure Rule 1.120(a) Pleading Specific Matters provides as

follows:
 “(a) Capacity. It is not necessary to aver the capacity of a party to sue or
to sued, the authority of a party to sue or be sued in a representative
capacity, or the legal existence of an organized association of person that
is made a party, except to the extent required to show the jurisdiction of
the court…When a party desires to raise an issue as to the legal existence
of any party, the capacity of any party to sue or be sued, or the authority of
a party to sue or be sued in a representative capacity, that party shall do so
by specific negative averment which shall include such supporting
particulars as are peculiarly within the pleader’s knowledge.

Additionally, Florida Rules of Civil Procedure Rule 1.110(b) requires that a Complaint include a

“short and plain statement of the grounds upon which the court’s jurisdiction depends…” In the

instant action the Purported Plaintiff (“BB&T”) has failed to plead or specify in what capacity

the Purported Plaintiff bring its suit with regard to the instant “certain” loan and “certain”

Defendants. Consequently, by failing to define or identify in any way the nature of its legal

entity to bring the instant action concerning the instant “certain” loan and “certain” Defendants,

the Purported Plaintiff (“BB&T”) has not plead that it has the capacity to maintain suit before

this Court.

13. “Capacity to sue” is and absence or legal disability which would deprive a party of

the right to come into court 59 AM.Jur.2d Parties § 31 (1971). This is in contrast to “standing”

which requires an entity have sufficient interest in the outcome of litigation to warrant the court’s

consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla.App. 4

Dist. (1982).

14. The issue of capacity to sue may be raised by motion to dismiss where the defect

appears on the face of the complaint. Hershel California Fruit Products co. V. Hunt Foods, 111

F. Supp. 603 (1975), quoting Coburn v. Coleman 75 F. Supp. 107 (1974); Klebano v. New York

Produce Exchange, 344 F.2d (2d Cir. 1965).

 15. Failure to raise the issue of a Plaintiff’s capacity by a specific negative averment has

been held to constitute a waiver of that defense. McDonough Equip. v. Sunset Amoco West, 669

So.2d 300 (Fla.App. 3 Dist. 1996); Plumbers loc. UN.. 519 , Miami Fla. V. serv. Plbg., 401 F.

Supp. 1008 (1975);’ and see Sun Val American Land Lease, 927 So.2d 259 (FlaApp. 2 Dist.

2006); Shaw v. Stutchman, 105 Nev. 128 (1989)

WHEREFORE, accordingly, Purported Plaintiff (“BB&T”) lacks “capacity” and

Defendants are being deprived of their fundamental rights to procedural due process of law as

guaranteed under the Florida and United States Constitutions and, therefore, this Honorable

Court should DIMISS this civil action WITH PREJUDICE.

CONCLUSION

For the reasons stated, the above verified assertions, and the presented evidence, this

Honorable Court, should take judicial notice that Purported Plaintiff (“BB&T”), and/or its

servicing agents and representatives have made obvious misrepresentations and engaged in

misconduct, unclean hands, and bad faith and has committed such serious fraud upon the Court,

so as to shock the senses of this Honorable Court. Additionally, Purported Plaintiff (“BB&T”)

lacks standing and also lacks capacity to commence and maintain this action. Consequently, this

Honorable Court should DISMISS THIS CIVIL ACTION WITH PREJUDICE.

RELIEF REQUESTED

WHEREFORE, Defendants request that this Honorable Court take judicial notice of the

verified assertions, facts, and presented evidence and to also enter an Order to DISMISS THIS

CIVIL ACTION WITH PREJUDICE, and to award the Defendants court costs, legal costs and

damages, as this court may determine to be appropriate.

CERTIFICATE OF SERVICE
 I, the undersigned counsel, hereby certify that a true copy of the foregoing Verified

Motion to Dismiss was furnished by FAX: (number) and by First Class U.S. Mail on this

____day of _____, 2010, to XXXXXXXXX, Esq. of _______________ Law Firm, P.A.,

(address_____________).

DATED: _______________ 2010

______________________________
Ann Smith Pellegrino, Esq
Fla. Bar # 646792
2215. W. Vina del Mar Blvd.
St. Petersburg, FL 33706
Phone and Fax: 727-363-8711
Email: aladyjustice@aol.com
Attorneys for Defendants

CONTINUE TO VERIFICATION….
VERIFICATION
(PURSUANT TO SECTION 92.525(2), FLORIDA STATUTES)

STATE OF FLORIDA

COUNTY OF PINELLAS

Under penalty of perjury, I declare that I have read the foregoing VERIFIED MOTION,

including by way of specific example, but not limited to, the attached exhibits and the Certificate

of Service as to the same and, to the best of my knowledge, the facts stated in it are true.

Dated: _______________2010

______________________________________
Ann Smith Pellegrino, Esquire
Florida Bar Number: 646792
2215 W. Vina del Mar Blvd.
Phone and Fax: 727) 363-8711
E-MAIL: aladyjustice@aol.com
 EXHIBIT A:

BB&T Official Press Release

(“Certain” Assests)
 EXHIBIT B:

(Letter of on-going negotiation with Colonial Bank)

 EXHIBIT C:

(AFTER-THE-FACT BB&T legal counsel Letter of Notice of

“raiding” Defendants’ various Colonial Bank accounts – without
providing any proof, whatsoever, that BB&T had acquired the
instant “certain” loan associated with
the instant “certain” Defendants.)