Motion To Dismiss Complaint

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR PINELLAS COUNTY CIVIL
DIVISION Green Tree Servicing, LLC Plaintiff, vs. MARK R. REINHARDT, et al Case No: 12-14096-CI-20 Defendants DEFENDANTS MOTION TO DISMISS PLAINTIFFS COMPLAINT Defendant MARK R. REINHARDT, filing pro se, files this Motion to Dismiss Plaintiffs Complaint and as grounds therefore states: 1. Plaintiff has filed a Complaint seeking foreclosure of certain real property located in Pinellas County, Florida. 2. Defendant hereby incorporates by reference into this Motion the Affirmative Defenses as listed in Defendant's Response to Complaint. 3. Plaintiffs Complaint should be dismissed for failure to state a cause of action, failure to comply with conditions precedent in both the Note and Mortgage, lack of standing, failure to to serve process in compliance with statutes and failure of the proper plaintiff to prosecute this action. 4. Initially, plaintiffs Complaint should be dismissed for lack of standing and the failure of the proper party to file the lawsuit. Although the Note and Mortgage clearly identify Countrywide Home Loans, Inc. as the Lender and Owner of the Note and Mortgage, the Complaint specifically states that the owner of the Note is Federal National Mortgage Association and does not specify an owner or holder of the Mortgage. The Complaint also does not attach any assignments for examination. Therefore the Complaint should be dismissed. 5. Plaintiffs Complaint should also be dismissed for the failure to attach the original Note and Mortgage which contain the key terms and conditions of the underlying agreements as well as possible notations and/or amendments identified solely in the original Note and Mortgage. Rather plaintiff attached as its Exhibit A what it refers to as a copy of the Note and Mortgage, whatever that may actually be. 6. Plaintiffs Complaint should further be dismissed for failure to comply with two mandatory conditions precedent required before filing suit and/or accelerating the terms of the Note.
Case No: 12-14096-CI-20
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1) Pursuant to F.S, 558.715, Plaintiff did not provide to this Defendant proper notice of assignment of the debt, and giving such notice is a condition precedent to this action. 2) In April of 2012, Defendant sent Plaintiff counsel with a Qualified Written Request via Certified Mail, Receipt #7008 1140 0000 5747 3074 under the Real Estate Settlement Procedures Act, codified as Title 12 2605 (e)(1)(B) (e) and Reg. X 3500.21(f)2 of the United States Code as well as a request under Truth In Lending Act [TILA] 15 U.S.C. 1601, et seq. This was sent to Plaintiff's counsel and signed for by J. Henderson on 5/1/12. A copy of that QWR is attached as Defendant's Exhibit A, and a copy of the Certified Mail Return Receipt is attached as Exhibit B. Plaintiff did not respond in any fashion to such request, and even failed to acknowledged receipt of this request, despite the fact that it was sent to the office of and signed for by Plaintiff's counsel. The statutory response time had long elapsed by the time that Plaintiff filed the Complaint. By not responding to a formal QWR under RESPA, Plaintiff has again not performed a requirement precedent to any action or claim and this Complaint should be dismissed. 7. As a result of these deficiencies, plaintiffs have failed to state a cause of action and the Complaint should be dismissed. 8. Plaintiffs pleadings fail to contain sufficient facts to establish who the actual Plaintiff is and its relationship to Defendant and to the claim for foreclosure of the subject promissory note. The record also fails to sufficiently identify who Plaintiff is and fails to allege facts sufficient to determine the standing of Plaintiff. 9. Service of Process has not been perfected. Plaintiff has failed to serve process in compliance with statutes. The process of service as returned to the court does not have the date and time that process was served notated on the original and all copies as per Florida Statute Chapter 48 or Florida Rule 1070(e). WHEREFORE, on the grounds of the above arguments and the Affirmative Defenses incorporated herein, Defendant MARK R. REINHARDT respectfully requests the Court to grant the instant Motion to Dismiss and such other and further relief as this Court deems just and proper. Dated this ______ day of ____________________, 2013. By: _____________________________________ MARK R. REINHARDT 12 Wilson St. Amissville, VA 20106
Case No: 12-14096-CI-20
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I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via US Mail this _____ day of _______________, 2013 to Law Offices of Daniel Consuegra, P.L. Attn: Benjamin A. Ewing, counsel for Plaintiff 9204 King Palm Dr. Tampa, Florida 33619-1328
By: _____________________________________ MARK R. REINHARDT 12 Wilson St. Amissville, VA 20106
Case No: 12-14096-CI-20
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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR PINELLAS COUNTY CIVIL

Case No: 12-14096-CI-20

Case No: 12-14096-CI-20

By: _____________________________________ MARK R. REINHARDT 12 Wilson St. Amissville, VA 20106

Case No: 12-14096-CI-20

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