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 CONSUMER’S AMENDED MOTION

TO DISMISS PLAINTIFF’S 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 Plaintiff’s failure to join an
indispensable 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 is
not 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
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 Plaintiff’s
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 all

exhibits 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 Plaintiff’s Complaint

reads:

This Security Instrument is given to Mortgage Electronic

Registration Systems, Inc. (“MERS”) (solely as nominee for
Lender, as hereinafter defined, and Lender’s successors and
assigns).

The Mortgage further provides that the “Lender” is

Taylor, Bean & Whitaker Mortgage Corporation.
5. A “nominee” is defined in Black’s 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.”
 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 properly
qualified and registered to do so can determine the true
owner or holder.

9. Mr. Consumer’s 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 and
terminations. 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. Consumer’s mortgage as it would be a violation of FHA
policies and the terms and conditions of the subject
mortgage and note.
 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 plaintiff’s 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 dismiss

the Plaintiff’s 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 attorney’s
fees and all other relief to which he proves himself
entitled.

[Attorney for Consumer]