Do you have a Sample motion to dismiss foreclosure complaint Florida?

Answer 1

MOTION TO DISMISS COUNT I.
Defendant moves to dismiss count I of Plaintiff's complaint to re-establish a lost promissory note for failure to state a cause of action.

29. Florida Statutes Chapter 673 "applies to negotiable instruments."

30. F.S. 673.1041(1)(c) defines the term "negotiable instrument" as an unconditional promise or order to pay a fixed amount of money, if the instrument does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money. (emphasis added)

31. F.S. 673.1041(2) provides that "instrument" means a "negotiable instrument".

32. The official comment to F.S. 673.1041 states that the definition of "negotiable instrument" delineates the scope of Article 3 of the Uniform Commercial Code.

33. The promissory note that the plaintiff seeks to foreclose is not a negotiable instrument under Florida law because the note is not just a promise to pay as it requires additional undertakings by the owner and holder of the note imposed pursuant to the special default loan servicing obligations that apply to this loan. These special and highly detailed loan servicing requirements are incorporated into the subject note and serve to create uncertainty in the amount due. As a result, the promissory note is not a negotiable instrument and not subject to reestablishment under the Uniform Commercial Code.

34. A promissory note to be negotiable, must contain an unconditional promise and there must be a specific ascertainable sum. The uncertainty presented by the terms of the note at issue in this foreclosure defeat negotiability of the note and eliminates the possibility of the application of F.S. Chapter 673 in an action to enforce the note. Nagel v. Cronebaugh, 782 So. 2d 436 (Fla. 5th DCA 2001), citing United Nat'l Bank of Miami v. Airport Plaza Ltd. P'ship, 537 So. 2d 608,609 (Fla. 3d DCA 1988); Thompson v. First Union, 643 So. 2d 1179 (Fla. 5th DCA 1994); See also, Bankers Trust v. 236 Beltway Investment, 865 F. Supp. 1186 (E.D. Va. 1994).