action challenging mers as plaintiff

8/8/2019 Action Challenging MERS as Plaintiff

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J.7 Action Challenging MERS as Plaintiff

IN THE CIRCUIT COURT, FOURTH

JUDICIAL CIRCUIT, IN AND FOR

DUVAL COUNTY, FLORIDA.

[plaintiff]MORTGAGE ELECTRONIC REGISTRATION

SYSTEMS, INC. as Nominee for Taylor, Bean

& Whitaker Mortgage Corporation,

Plaintiff,

[vs]

[defendant]WILLIE CONSUMER, et al.

Defendants.

DEFENDANT, WILLIE CONSUMERS AMENDED MOTION

TO DISMISS PLAINTIFFS COMPLAINT, OR IN THE

ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT

The Defendant, WILLIE CONSUMER, (hereinafter Mr.

Consumer) by and though his undersigned attorney, files

this amended motion to dismiss, or in the alternative,

motion for more definite statement, pursuant to Rules

1.210(a), 1.130(a) and 1.140(b)(7) of the Florida Rules of

Civil Procedure, for Plaintiffs failure to join anindispensable party. In the alternative, Mr. Consumer

requests this Court to enter an Order requiring Plaintiff

to provide a more definite statement. In support of these

alternative motions, Mr. Consumer says:

1. Mr. Consumer is the owner of the property which is

the subject of this mortgage foreclosure Complaint. He

requests the Court dismiss this action pursuant to Rule

1.210(a) and 1.140(7), because it appears on the face of

the Complaint that a person other than the Plaintiff is the

true owner of the claim sued upon and that the Plaintiff isnot the real party in interest and is not shown to be

authorized to bring this action. In re: Shelter

Development Group, Inc., 50 B.R. 588 (Bankr. S.D. Fla.

1985) [It is axiomatic that a suit cannot be prosecuted to

foreclose a mortgage which secures the payment of a

promissory note, unless the Plaintiff actually holds the

original note, citing Downing v. First National Bank of


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Lake City, 81 So.2d 486 (Fla. 1955)], See also 37 Fla.

Jur. Mortgages and Deeds of Trust 240 (One who does not

have the ownership, possession, or the right to possession

of the mortgage and the obligation secured by it, may not

foreclose the mortgage).

2. Fla. R. Civ. P. Rule 1.130(a) requires a Plaintiff

to attach copies of all bonds, notes, bills of exchange,

contracts, accounts, or documents upon which action may be

brought to its complaint. Attached to Plaintiffs

Complaint, are a promissory note and mortgage. The

Promissory Note is payable to Taylor, Bean & Whitaker

Mortgage Corporation as Lender. The Plaintiff in the

above-styled case is Mortgage Electronic Registration

Systems, Inc. as nominee for Taylor, Bean & Whitaker

Mortgage Corporation.(MERS)

3. Fla. R. Civ. P. Rule 1.310(b) provides that allexhibits attached to a pleading shall be considered a part

of the pleading for all purposes. Therefore, the

promissory note attached to MERS Complaint must be

considered in determining if it is the proper party to

bring this action and for purposes of determining if an

indispensable party has been overlooked. It appears on the

face of MERS Complaint that it is not the proper party to

bring this action based upon the note attached to the

Complaint payable to Taylor, Bean & Whitaker.

4. The Mortgage attached to Plaintiffs Complaintreads:

This Security Instrument is given to Mortgage Electronic

Registration Systems, Inc. (MERS) (solely as nominee for

Lender, as hereinafter defined, and Lenders successors and

assigns).

The Mortgage further provides that the Lender is

Taylor, Bean & Whitaker Mortgage Corporation.

5. A nominee is defined in Blacks Law Dictionary

(7th Edition, 1999) as:

... A person designated to act in place of another,

usually in a very limited way... A party who holds bare

legal title for the benefit of others or who receives and

distributes funds for the benefit of others.


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6. A nominee is one designated to act for another as

his/her representative in a rather limited sense... In its

commonly accepted meaning, the word nominee connotes the

delegation of authority to the nominee in a representative

capacity only, and does not connote the transfer or

assignment to the nominee of any property in or ownership

of the rights of the person nominating him/her. Mortgage

Electronic Registration Systems, Inc., v. Rees, 2003 WL

22133834 (Conn. Super. Ct. 2003).

7. In the absence of contrary evidence, nominee

should be given its commonly accepted meaning. It connotes

the delegation of authority in a representative or nominal

capacity only, and does not connote the transfer or

assignment to the nominee of any property in or ownership

of the rights of the person nominating him. Winters

National Bank and Trust Company v. Saker, 419 N.E. 2d 890

(Ohio App. 1979).

8. MERS is a for-profit electronic registration and

tracking system utilized by some owners and holder of notes

that allows these parties to avoid paper transfers of the

ownership of notes and mortgages. A loan registered with

MERS is provided an 18 digit number which follows it as it

is transferred from owner/holder to owner/holder. MERS is

not the true owner or holder of the note and mortgage and,

instead, MERS acts as a library or holder of information

regarding the true owners and holders of notes and

mortgages. Through its database a person who is properlyqualified and registered to do so can determine the true

owner or holder.

9. Mr. Consumers mortgage is insured by the FHA.

The FHA will allow HUD-approved mortgagees to register

their FHA-insured loans with MERS, however, the mortgagees

must also continue to comply with all Departmental

regulations, reporting requirements and other established

policies. Mortgagees will continue to be responsible for

informing FHA of any changes related to the mortgage such

as change of holder/servicer, foreclosure initiation andterminations. See MORTGAGEE LETTER 97-30, To: All Approved

Mortgagees, SUBJECT: Registering FHA-insured Loans with

Mortgage Electronic Registration System, Inc. (MERS) dated

July 16, 1997. MERS cannot be the true holder or owner of

Mr. Consumers mortgage as it would be a violation of FHA

policies and the terms and conditions of the subject

mortgage and note.


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10. In this case, MERS allegations of material facts

claiming it is the owner of the subject note are

inconsistent with the documents attached to the Complaint.

MERS has not pled or attached an assignment to the

Complaint. MERS also has not and cannot plead or attach

any documentation memorializing the transfer of the subject

note or mortgage to itself. Further, MERS has alleged it

does not have the original promissory note. When exhibits

are inconsistent with the plaintiffs allegations of

material fact as to who the real party in interest is, such

allegations cancel each other out. Fladell v. Palm Beach

County Canvassing Board, 772 So.2d 1240 (Fla. 2000);

Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187

(Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa

Development Corp., 441 So. 2d 1114 (Fla. 3d DCA 1983).

WHEREFORE, Mr. Consumer requests the Court to dismissthe Plaintiffs complaint with prejudice; alternatively

order the Plaintiff to add the owner and holder of the

subject mortgage as an indispensable party to this

foreclosure action, and award this defendant attorneys

fees and all other relief to which he proves himself

entitled.

[Attorney for Consumer]

action challenging mers as plaintiff

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