Motion to Dismiss

Without a valid “cause of action” there’s no corpus delicti. If there’s no corpus delicti a case has no standing. There are numerous cases dealing with corpus delicti and all say the same thing. Without a corpus delicti the plaintiff has no standing.

In order to have a corpus delicti a case requires a valid “cause of action.” A valid cause of action requires three elements. The three elements are: 1) a violation of a legal right, 2) damage or injury, 3) redress-ability by the court.

 

Pursuant to Rules of Civil Procedure 1.140(b)(1) and 1.140(h)(2) moves for an Order Dismissing _______________________ complaint for lack of subject matter jurisdiction and shows:

 

  1. This Court lacks subject matter jurisdiction to proceed. Subject matter jurisdiction has not been established in this Complaint. The jurisdictional question can be raised at any time and can never be time-barred, Rule of Civil Procedure 1.140(h)(2).

 

  1. The First Amended Complaint fails to describe the Status of Plaintiff insomuch as no specific facts have been alleged which determine whether or not _____________________________ are a Corporation, LLC, LLP, etc.

 

Parties cannot stipulate to jurisdiction over subject matter where none exists Cunningham v. Standard Guar. Ins. Co., 630 So 2d 179 (Fla 1994) In re D.N.H.W., 955 So 2d 1236 (Fla 2d DCA 2007); and subject-matter jurisdiction may not be conferred on court by consent of parties MCR Funding v. CMG Funding Corp., 771 So 2d 32, 35 (Fla 4th DCA 2000) 4. This Court has dismissed similar claims with the right to Amend the Complaint in HSBC Bank USA, etc. v Boone, Walton County 08 CA 557 and Lasalle Bank, etc. v. Schumacher, et al, Walton County 09 CA 247. WHEREFORE, Carroll requests that the court enter an Order Dismissing Plaintiff’s First Amended Complaint without Prejudice; and granting such other or further relief as is appropriate.

Motion To Dismiss, Presenting Defenses Of Failure To State A Claim, Of Lack Of Service Of Process, Of Improper Venue, And Of Lack Of Jurisdiction Under Rule 12(B)

Now comes [Your Name], alleged defendant, by special appearance, not submitting to the courts jurisdiction, who hereby moves this court to strike/dismiss the complaint filed by [Your State,County], for failure to present a cause of action or crime. Failure to present the court a case deprives the court of jurisdiction. Grounds are further set forth below. The court is further requested to provide a full findings of fact and conclusion of law if the court denies this motion. Just saying “it doesn’t apply” is not sufficient grounds to deny this motion.

Because some courts refuse to disclose the nature of the proceedings, this motion covers both civil and criminal. If deemed to be civil, the criminal parts may be ignored and vice-versa.

 

[PLUG IN YOUR STATE HERE] [STATE LISTING CLICK HERE]

 

The alleged defendant moves the court as follows:

  1. To dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted.
  2. To dismiss the action or in lieu thereof to quash the return of service of summons on the grounds (a) that the defendant is a corporation organized under the laws of [Your State] and was not and is not subject to service of process within [Your County], and (b) that the defendant has not been properly served with process in this action, all of which more clearly appears in the affidavits of previously received, hereto annexed as Exhibit A and Exhibit B respectively.
  3. Pursuant to [Your State] Trial Rules the Plaintiff’s have failed to prove on the public record, subject matter jurisdiction, jurisdiction over the person as well as failed to state for the public record of what jurisdiction the court is operating under. Plaintiff’s have absolutely no firsthand knowledge of the facts and only have fabricated evidence, illegally obtained evidence, insufficient evidence as well as lack of direct evidence of the facts. Defendant hereby moves the Court to dismiss Plaintiff’s “THE STATE OF [Your State], COUNTY OF [Your County]” as well as Agents or Agencies thereof “Complaint(s) with prejudice. The specific bases for this Motion are set forth in the accompanying Memorandum. Dated this day of __________.   .

 

I HEREBY CERTIFY that a copy of the foregoing was forwarded to:

 

NOTICE OF MOTION

 

[PLUG IN YOUR STATE HERE] [STATE LISTING CLICK HERE]

 

Fact 1 The Plaintiff’s “[Your State,County, Officer]”

As well as all third party defendants to my counter claim have failed to state a claim or cause of action upon which relief can be granted. I believe there is no evidence to the contrary and that none exists.

Fact 2 The Plaintiff’s have failed to rebut my presumptions in my counterclaim with factual documented evidence on the public record. I believe there is no evidence to the contrary and that none exists.

Fact 3 The Plaintiff’s have fabricated evidence, illegally obtained evidence, have insufficient evidence as well as lack of direct evidence of the facts. I believe there is no evidence to the contrary and that none exists.

Fact 4 No contracts were presented and  all contracts were obtained by fraud, force, intimidation, conspiracy, perjury. No actual proof of contract was provided nor is there any evidence to the contrary and that none exists.

Fact 5 Both district attorney and court commissioner have a certificate of admission to the BAR association. This is a clear conflict of interest and according to the Judicial Code of Conduct the case must be dismissed and the judge dismissed from the court room.

 

Please take notice, that the undersigned will bring the above motion on for hearing before this Court at Room _________________, _________________, _______________, State of __________, on the ____ day of _____, 20__, at __ o’clock and __ minutes in the forenoon of that day or as soon thereafter as counsel can be heard.

 

I HEREBY CERTIFY that a copy of the foregoing was forwarded to:

 

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION

 

The Plaintiff’s Complaint And This Action Should Be Dismissed For Numerous And Multilevel Violations Rules Of Civil Procedure

The unlawful acts and practices of the Plaintiff, ___________________, Its Counsel, Law Offices, Agents, and or others, illustrated in all the prior pleadings of the Defendants, inclusive and not limited to all the factual statements provided herein and throughout this motion are incorporated and constitute conduct as such which is deemed Unconscionable, Unethical, Fraudulent, Negligent, and violates the Law.

 

Legal Axioms Providing Jurisdiction To The Court:

Rules Of Civil Procedure 1.420(b) provides, in pertinent part, that “any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of the court.” 2. The dismissal of action or claim for failure of an adverse party to comply with the Rules of Civil Procedure or any order of the Court operates as an adjudication on the merits. Cash vs. Airport Mini-Storage, 782 SO.2d 983 (Fla. 3d DCA 2001).

Defendants, in seeking dismissal with prejudice, rely on Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), where the supreme court adopted a “set of factors” for “determining whether dismissal with prejudice is warranted” for failure to comply with the rules of civil procedure. The following detailed account of the malfeasance of ________________., Law Offices, and or other agents, is clear evidence that the six factors giving rise to Dismissal With Prejudice, outlined in Kozel by the Supreme Court, have been expressly met (All prior pleadings by the Defendants and such evidence as cited throughout this motion is incorporated) :

  1. The disobedience and misconduct described above, throughout this motion, illustrated through included case law, and incorporated as previously stated. Recent case law previously cited within this motion stands as confirmation and justification for dismissal with prejudice.
  2. Plaintiff’s counsel has very recently and within the past year had numerous judgments vacated, complaints and foreclosure actions dismissed with prejudice as a sanction for its misconduct.
  3. Defendants charge upon information and belief, that EMC Mortgage was involved in the disobedience, as it both directly and or indirectly, manifested to avoid compliance with such laws and rules.
  4. The stated and incorporated disobedience of ________________ has prejudiced and harmed the Defendants in many fashions. First, The Defendants and their family have been burdened with perpetual stress and emotional harm over the lengthy ongoing fraud and deception of the stated parties. Second, The Defendants have incurred mounting costs in the defense of this action and the protection of their home. Third, there has been undue delay in this action stemming from the deceit and unconscionable acts of the stated parties, and hence, the necessary steps taken to uncover the fraud and misconduct of the Plaintiff, its counsel and agents.
  5. Plaintiff’s counsel, ___________________ have at no time offered any valid and reasonable justification for its non-compliance. Similarly, the same unorthodox and noncompliant issues frequently appear to be a constant theme in the litigation strategy of _____________________.
  6. The above and herein stated misconduct, disobedience and gross disrespect of Laws and Rules of Court, by Plaintiff, _________________________, and its agents, in the current case and others throughout _________________, have greatly caused systematic problems, clogged the judicial machinery, spurred investigations, caused unusual delays, and is a hindrance and havoc on the administration of justice.

 

Plaintiff Meets None Of The Criteria For Standing Under Law

  1. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. This entitlement to prosecute a claim in courts rests exclusively in those persons granted by substantive law, the power to enforce the claim.

Kumar Corp. vs. Nopal Lines, Ltd, et aI, 462 So. 2d 1178, (Fla. 3d DCA 1985).

  1. Under Law, A separate entity cannot maintain suit on a note payable to another entity unless the requirements of Rule 1.21 O(a) of the Florida Rules Of Civil Procedure and applicable Florida Law are met. Corcoran vs. Brody, 347 So. 2d 689 (Fla. 4th DCA 1977).
  2. The Exhibit “A” provided and affixed to the Complaint by Plaintiff fails to prove standing; clearly and discordantly shows that another separate entity, if any, is the Real Party In Interest”. When exhibits are inconsistent with Plaintiff’s allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell vs. Palm Beach County Canvassing Board, 772 So. 2d 1240 (Fla. 2000); Greenwald vs. Triple 0 Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. vs. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).
  3. A Plaintiff must conclusively establish that it owned the note and mortgage at the time of filing or the complaint must fail. The Plaintiff’s failure to attach an assignment was condemned in Jeff-Ray Corporation vs. Jacobson, 566 So. 2d 885 (Fla. 4th DCA 1990). See also Progressive Express Insurance Company vs. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005); and BAC Funding Consortium, Inc. vs. Jean-Jacques, et aI., So. 3d, 2010 WL 476641 (Fla. 2d DCA 2010).

 

Assignments and Affidavits Based On Hearsay Are Not Admissible Evidence

In the case of GMAC Mortgage, LLC vs. Debbie Visicaro, et ai, 6th Judicial Circuit Court in Pinellas County (Case No. 50-2008-CA-028558), in Hearing of April 7,2010, Judge Anthony Rondolino in ruling on Hearsay stated “I’m also enlightened by Jones Versus Florida Workers’ Compensation, which is a 2001 2nd District case that finds that the affidavit was insufficient in that it had allegations that all the assertions and allegations in the complaint are true, that kind of an affidavit is insufficient” (Hearing before Hon. Anthony Rondolino, April 7, 2010, transcript 20, lines16-22)

Judge Anthony Rondolino in the above-cited case, Hearing of April 7, 2010 further stated, “I also reviewed Hurricane Boats versus Certified Industrial Fabricators and found that affidavit to be insufficient when it related to the allegations in the complaint being true” (transcript, 4/7/2010, pg. 20, lines 23-25 & pg. 21, lines 1-2).

Regarding the inadmissibility of false and misleading “Hearsay” affidavits in foreclosure lawsuits, Judge Anthony Rondolino, in Hearing on April 7,2010, in the matter of GMAC Mortgage, LLC vs. Debbie Visicaro, et ai, 6th Judicial Circuit Court in Pinellas County (Case No. 50-2008-CA-028558), by the Court said exactly, “You know what I’d really like to see? I’d like to see in one of these cases where a defense lawyer cross-examines, takes a deposition of these people, and we can see whether they ought be charged with perjury for all of these affidavits” (transcript, 4/7/2010, pg. 15, lines 20-25). Statements made in official Police Reports are considered Hearsay and are deemed unsubstantiated and thus inadmissible as evidence. Information “contained in police reports is ordinarily considered hearsay and inadmissible in an adversary criminal proceeding.”

Burgess v. State, 831 So. 2d 137, 140 (Fla. 2002).

The “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.51 O(e) (emphasis added).

When a supporting affidavit does not comply with these requirements, it is legally insufficient to support the entry of summary judgment in favor of the moving party. See, e.g., W Edge” v. Kunderas, 910 So. 2d 953, 954 (Fla. 2d DCA 2005) (noting that affidavit in support of action for reformation based on mutual mistake was incompetent when it contained allegations concerning matters about which the affiant could not have personal knowledge).

Abundant case law has well established precedent that Affidavits which are not based upon the affiant’s personal knowledge must be stricken. Defendants cite the case of Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993). In the Capello case, the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanlev, 226 So. 2d 129 (Fla. 4th DCA 1969).
 

A Judgement Action Wrought With Fraud Is Void And Must Be Dismissed

Landmark National Bank v. Kesler, 289 Kan. 528,216 P.3d 158 (2009). “Kan. Stat. Ann. 60-260(b) allows relief from a judgment based on mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence that could not have been timely discovered with due diligence; fraud or misrepresentation; a void judgment; a judgment that has been satisfied, released, discharged, or is no longer equitable; or any other reason justifying relief from the operation of the judgment. The relationship that the registry had to the bank was more akin to that of a straw man than to a party possessing all the rights given a buyer.” Also In September of 2008, A California Judge ruling against MERS concluded, “There is no evidence before the court as to who is the present owner of the Note. The holder of the Note must join in the motion.”

Sufficient “Good Cause” to permanently vacate a judgment and dismiss action with prejudice is the showing of fraud to the Court (See Fla.R.C.P., Rule 1.540). The presentment in a court of False testimony either orally and or by submission of known fallacious statements of fact in Affidavits or Assignments of Mortgage constitute Intrinsic Fraud. See Deelaire v. Yohaman453 So. 2d 375,377 (Fla. 1984).

Pursuant to Rule 1.540, a Court has the absolute intrinsic power and jurisdiction to vacate and dismiss an action due to fraud and unconscionability. 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 reasons: (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void.

 

I HEREBY CERTIFY that a copy of the foregoing was forwarded to: