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IN THE CIRCUIT COURT OF THE 1ST JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR WALTON COUNTY

BANK OF AMERICA, NA,

Plaintiff,

v. Case No: 09-CA-000253

GALE R. HOHNADELL, et. al.


_____________________________________/

DEFENDANTS, GALE R. HOHNADELL AND KIMBERLY G. HOHNADELL’S


MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
COMPLAINT, ALTERNATIVELY TO MAKE MORE DEFINITE AND CERTAIN

COMES NOW, Defendants, GALE R. HOHNADELL and KIMBERLY G.

HOHNADELL (“Defendant”), by and through their undersigned counsel and files this

Memorandum of Law in Support of Motion to Dismiss.

UNDISPUTED FACTS

1. On or about February 6, 2009, BANK OF AMERICA, NA (“Plaintiff”) filed a

Notice of Lis Pendens and Complaint for Mortgage Foreclosure against Defendant.

2. The Complaint and Foreclosure is predicated upon the failure to comply with the

terms of the Note and Mortgage executed by Defendant on December 27, 2006.

3. Attached to Plaintiff’s Complaint as Exhibit “A” is a copy of a Mortgage;

however, Plaintiff has failed to attach a copy of the Promissory Note.

4. The Complaint is devoid of any fact that Plaintiff is not in possession of a copy of

the promissory note.

5. On or about March 11, 2009, Plaintiff filed the Original Note.


DISMISSAL FOR FAILURE TO ATTACH PROMISSORY NOTE
TO COMPLAINT FOR FORECLOSURE

6. Pursuant to Fla. R. Civ. P. §1.130(a) states in, pertinent parts, “[a]ll bond, notes,

bills of exchange, contracts, accounts, or documents upon which action may be brought or

defense made … shall be incorporated in or attached to the pleading.” Consequently, a party

who makes a claim based on a written instrument must attach a copy of the instrument to the

pleading in which the claim is raised. Eigen v. Federal Deposit Insurance Corporation, 492

So.2d 826 (Fla. 2d DCA 1986).

7. In Eigen, the foreclosing bank filed an original complaint for foreclosure against

Eigen and attached to the original complaint copies of the instruments sued upon. Id. Prior to

Eigen filing any responsive pleadings, the foreclosing bank filed an amended complaint, which

was substantially the same as the original complaint; however, the instruments sued upon were

neither attached to the amended complaint nor incorporated into the amended complaint as

required by Fla. R. Civ. P. 1.130(a). Id. The Court found that because the instruments that

formed the basis for the foreclosing bank’s cause of action were neither attached to nor

incorporated into an amended complaint as required by Fla. R. Civ. P. §1.130(a), Eigen’s motion

to dismiss was proper. Id. at 827.

8. A pleading that asserts a claim for relief based upon a written instrument is

subject to dismissal for failure to state a cause of action if the instrument is not attached. Jeff-

Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990); Safeco Ins. Co. of America v. Ware,

401 So.2d 1129 (Fla. 4th DCA 1981).

9. In Jeff-Ray Corp., the Court reversed final summary judgment of foreclosure that

was entered in favor of Plaintiff (“Lender”) because the trial court erred in denying Defendant’s

(“homeowner”) motion to dismiss for failure to state a cause of action. Jeff-Ray Corp. at 885,
886. The original complaint for mortgage foreclosure alleged an assignment of the subject

mortgage into the Lender; however, the alleged assignment was not attached to the complaint.

Id. at 886. When the alleged assignment was finally produced, the assignment was dated four

months after the lawsuit was filed. Id. The Court cited Safeco Ins. Co. of America v. Ware, 401

So.2d 1129 (Fla. 4th DCA 1981) as authority. In Safeco Ins. Co., the Court ruled that a complaint

based on a written instrument does not state a cause of action until the instrument or an adequate

portion thereof is attached to or incorporated in the pleading. Id. at 1130. The Court noted that

if the pleader alleges that the pleader does not possess a copy of the instrument, then the pleader

should obtain a copy and attach it to the appropriate pleading by amendment. Id. Based upon

Safeco Ins. Co., the Court in Jeff-Ray Corp. found that dismissal of the action based upon the

failure to comply with Fla. R. Civ. P. §1.130 was proper. The Court held that the original

complaint could not have stated a cause of action at the time it was filed, based upon a document

that did not exist until four months after the filing of the complaint. Id.

10. As set forth in paragraphs One through Four of the undisputed facts, Plaintiff’s

complaint for mortgage foreclosure was filed without attaching the promissory note. “A cause of

action for nonpayment of a promissory note is based on the note. Failure to attach a copy of the

note will result in a dismissal of the complaint because there can be no cause of action without

the note.” See West’s Florida Practice Series TM, Civil Practice 2009 Edition attached hereto

and incorporated herein as Exhibit “A”.

11. If Plaintiff was not in possession of a copy of the promissory note at the time of

filing the complaint, Plaintiff must allege that fact. Equity Premium Inc. v. Twin City Fire Ins.

Co., 956 So.2d 1257 (Fla. 4th DCA 2007). Alleging that Plaintiff is not in possession of a copy

of the instrument will allow Plaintiff to conduct discovery to obtain such instrument as set forth
in Safeco Ins. Co., supra. Once Plaintiff obtains the instrument, then “the pleader should obtain

a copy and attach it to the appropriate pleading by amendment.” Id. at 1130. Consequently,

Plaintiff cannot merely file the instrument in an attempt to “cure” or comply with Fla. R. Civ. P.

1.130(a).

12. Plaintiff’s complaint should be dismissed pursuant to Fla. R. Civ. P. 1.130(a) for

failure to state a cause of action as: (1) the complaint fails to assert any fact that Plaintiff is not in

possession of a copy of the note and requires discovery to obtain the document; and (2) the

complaint failed to attach a copy of the promissory note when Plaintiff’s action is derived from

an alleged breach of the promissory note. Plaintiff cannot cure the defect by merely filing the

promissory note, but must attach a copy of the promissory to the appropriate pleading by

amendment.

13. To the extent that Defendant prevails on this Motion to Dismiss, Defendant is

entitled to recover reasonable attorney’s fees and costs incurred in connection with this matter.

DISMISSAL FOR FAILURE TO ATTACH


NOTICE OF ACCELERATION

14. Defendant withdraws this portion of the Motion.

MARK A. VIOLETTE, P.A.


Post Office Box 5129
Niceville, Florida 32578-5129
(850) 424-5595 – Telephone
(850) 424-5596 – Facsimile

__________________________________
MARK A. VIOLETTE, ESQ.
Florida Bar No. 0144916
Attorney for Defendants
Gale and Kimberly Hohnadell
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to the below

referenced via facsimile (813) 880-8800 and U.S. Regular Mail this 24th day of August, 2009.

Shapiro & Fishman, LLP


Attn: Hollan M. Fintel
10004 N. Dale Mabry Highway, Suite 112
Tampa, Florida 33618
File: 09-125921

MARK A. VIOLETTE, P.A.


Post Office Box 5129
Niceville, Florida 32578-5129
(850) 424-5595 – Telephone
(850) 424-5596 – Facsimile

__________________________________
MARK A. VIOLETTE, ESQ.
Florida Bar No. 0144916
Attorney for Defendants
Gale and Kimberly Hohnadell