Pinson v. JP Morgan Chase Bank, National Association et al

MOTION to Strike and Memorandum of Law Re: 64 Notice of Filing Certified Copy of Recorded Mortgage

S.D. Fla.August 7, 2014

UNITED STATES DISTRICT CO URT SOUTHERN DISTRICT OF FLORIDA W EST PALM BEACH DIVISION CASE NO. 9:13-cv-80720-KAM ) FI LfD ùy . . ,C. ALG 2 ? 2f,i t,I' t s'fevsN M uAnlMoqk !cuEax u.b nlsm cT, $ s.D. ()F- FLh. - wnz. l John Pinson, Plaintiff VS JPM ORGAN CHASE BANK, N.A., et. al. Defendants/ PLAINTIFFS PR0 S#'N M OTION TO STRIKE AND M EM ORANDUM OF LAW COM E NOW Plaintiff, John Pinson,rm se, who hereby files this M otion to Strike Defendants' Notice of Filing (DE 641, and in support of his Motion, the Plaintiff state as follows: 1. On April 22, 2014, Plaintiffrm se lled his Second Amended Verifed Complaint (tSAC'') gDE 521 against the Defendants claiming that Defendants' violated the Fair Debt Collections Practices Act (ETDCPA'), l 5 U.S.C. j 1692 et seq., and the Florida Consumer Collection Practices Act ($FCCPA''). F.S. 9559 et seq. 2. On M ay 20, 20 l4, Defendants' Gled their M otion to Dismiss the Second Amended Verified Complaint with Prejudice and Memorandum of Law in Support (t'MTD2') (DE 58). and did supplement the MTD2 with their dExhibit A' (DE58-11. 3. Plaintiffmoved that Exhibit A (DE 58-11 to the pleading be strickcn from the record. 4. Defendant then Gled its Notice of Filing Certified Copy of Recorded Mortgage (DE 641. 5. Plaintiff moves that the Notice of Filing Certified Copy of Recorded Mortgage (64) to the pleading be stricken from the record. 6. Here, in moving to strike extraneous materials subm itted in connection with Defendants' motion to dismiss, Plaintiff fully complies with FRCP Rule 7(b), which merely requires that any request for a court order by a motion must be téin writinglil . . . state with particularity the grounds for seeking an order; and . . . state the relief sought.'' Plaintiff's pro se 's Motion to Strike - Page 1 of 5 Case 9:13-cv-80720-KAM Document 68 Entered on FLSD Docket 08/08/2014 Page 1 of 5 1 llows this Court to strike , either on proper motion by a party or7. Further. FRCP Rule 12(9 a on its own initiative, any redundant , immaterial, impertinent, or scandalous matter in any pleading. Exhibit A, an exhibit to the pleading is referenced in the pl eading See DE 58 -.mg. 10. !( second, and now Defendant seeks to introduce its Notice of Filing C ertiGed Copy of Recorded Mortgage gDE 64J and incomorate it into its motion to dismiss by way of Judi cial Notice in its response in opposition to Plaintiff's motion . See DE 65 generally. FACTS 8. The Plaintiff shows that: a) Here, the Plaintiff disputes that the Certised Copy of Recorded Mortgage recorded i s what it purports to be, an unaltered original. b) Exhibit A alone is meaningless. Cf In re Forcc/txNvrc Cases . 52 l F. S-upm. -2d 650. 653 (S.D. Ohio 2007) (Gnding that one who did not acquire the note which the mortgage secured is not entitled to enforce the lien of the mortgage). In re VEAL . Bankr. Appellate Panel. (9th Circuit 20 .1 1) (if the dted of trust was assigned without the note , then the assignee, 'having no interest in the underlying debt or obligation , has a worthless piece of aper-'')P c) Exhibit A is immaterial. impertinent, and irrelevant , to the four comers of the complaint. Plaintiffs Motion to Strike is proccdurally proper 9. District courts routinely entertain and grant this type of motion . See, e.g., In re Tommv Sï//-lzcr Sec. L itiz. No. 04-c1v-7678 . 2007 U.S. Dist. LEXIS 55088. at *2 (S.D.N .Y. Julv 20. 2007) (granting plaintiffs' motion to strike certain exhibits that were extraneous to defendants' motion to dismiss); Holland - er v. Flash D ancers Topl -ess-club. 340 F. Supp. 2d 453. 463 (S.D.N.Y. 2004) (granting plaintiffs' motion to strike on a Rule 12(b)(6) motion) , aIl'd. 173 F. Anp'x 15-(2d-Cir. 20061. Accordingly, Plaintiff's Motion to Strike is procedurally proper. 1 Plaintifacknowledge that Rule 12(9 is designed to strike pleadings and th at Defkndant.s 'èExhibit A' (to thel2(b)(6) motion to dismiss) may not fit that definition exactly. To the extent that the Court trcats Defendants' filing as a motion instead of a pleading, Plaintiffask the Court to consider this document as Plaintiff s response to themoti on. Plaintiff s pro se 's M otion to Strike - Page 2 of 5 Case 9:13-cv-80720-KAM Document 68 Entered on FLSD Docket 08/08/2014 Page 2 of 5 The Certified Copy of Recorded M ortgage should be strick en from the record. l 0. Defendants filed Certifled Copy of Recorded Mortgage Ctcertified Copy'') (DE 641 and buy reference in its response in opposition (DE 65J requesting Judicial Notice and arg ues that the Court may consider the Certified Copy without converting the motio n to dismiss into a motion for summary judgment and cite Universal Express . Inc. v. ULS. S.E.C.. l77 Fed.Appx. 52 (2006). ln his opposition to the motion to dismiss , the Plaintiff objects to this Certified Copy being considered, deems it inappropriate , and argues the citation is read improperly , speciically in regard to public records . Plaintiff argues court documents are public records that could be considered, but county public records and the like ar e not authenticated the same as court documents, and therefore the court should disregard the exhibit . Here, the Plaintiff argues Exhibit A to the pleading should be stricken from the re cord. l 1 . Generally, only tht complaint , and any attachm ents thereto, are considered in deciding a motion to dismiss. Brooks v. Blue Cross and Blue Shield of Florida . lnc-.s l-1 6 F.3d 1364. 1 368 (1 1th Cir. 19974. A court may however takejudicial notice of some facts when considering a motion to dismiss. Horne v. Potter. 392 Fed. Appx. -800- s 802 (1 1th Cir. 20l0b. Doçuments from ptior cases involving parties are 'public records not subject to reagonable dispute because they (arel capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned .'' M. (internal citations and quotations omitted); see also Universal -E. xpress. Inc. v. U.S. SEC. l 77 Fed. Appx. 52. 53 (1 1th Cir. 2006). No surprise results from a court considering court documents from earli er cases between the same parties. See Brva-nt v. Avado Brands. Inc. -1 87 F.3d-127l .1279 (1 lth Cir. 1999). Therefore, the court should disregard the exhibit attached to the motio n to dismiss, or it must be converted to a motion for summaryjudgment. Defendants' Certified Copy is Not Proper Subject of Judicial Notice l2. Judicial notice of the Certised Copy is improper . Plaintiff disputes the Certified Copy . Under FRE Rule. 20l(b), a court may only takejudicial notice of a fact that is ddnot subject to reasonable dispute'' in that it ei(1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determincd from sources whose accuracy cannot reasonably be questioned.' 1d. Oran v. Stafford.226 F.3d 275. 289 (3d Cir. 20001; In re Svnchronoss s'e-c L ///8...705 F. Suop. 2d 367. 390 (D.N.J. 20 10). Given the fact that Plaintiffs pro se '.ç Motion to Strike - Page 3 of 5 Case 9:13-cv-80720-KAM Document 68 Entered on FLSD Docket 08/08/2014 Page 3 of 5 Defendants' proffered document is disputed , not matters of court record, and is offered by Defendants for the truth of the matters asserted , it is not properly the subject ofjudicial notice under FRE Rule 201 . 13. A court may not take judicial notice of the Exhibits submited by def endants tfor the truth of the facts recited therein.' Southern Cross Overseas Aqencies . Inc. v. Wah A'won .g Shipning Group L td.. l 8 l -F.3d 4 1- -s0 -426 (3d Cir. l 999); see also McMaho . n v. Gen. Dvnamics Corp .. No. 2:12-CV-499 - 4- KM M- AH. 2013 W L 1 164850, at.*3 (D.N.J. Mar. 20. 2013). A court may take judicial notice only of the existence of certain documents , not the truth of factual assertions contained within such documents . L um v. Bank ofAm.. 36l F.3d 217. 221 n.3 (3d Cir. 20043. 14. lndeed, where, as here , defendants cite documents solely for the purported truth of the assertions contained therein, the Court should exclude those documents from consideration entirely. See, e.g., Wah Kwong at 427 n.7 (analogizing the acceptable uses of judicial noticeable documents to the hearsay rule). l 5. Finally, even if Defendants' Certified Copy was otherwis e judicially noticeable-which it is not- it may be considered only for the limited purpose of establi shing its existence and not for the truth of the underlying factual statements contained therei n, lf the Court Considers Any Extrinsic Documents , Defendants' M otions to Dismiss Should Be Converted to M otions for Sum mary Judgment 16. lf this Court decides to consider any of the extraneous materials at issue by this m otion, Rule 1 2(b) requires that Defendants' motions to dismiss be converted to Rule 56 motion s for summaryjudgment, and Plaintiffs should be provided with tan opportunity to conduct neccssary discovery and to submit pertinent material .'' Kramer v. Timc Warner . Inc.. 937 F.2d 767. 773 (2d Cir. 1 -99- 1 ); see also Global .Network Commc 'nsu Inc. v. Citv ofNew York. 458 F.3d 150. 155 (2d Cir. 2006) (%çthe conversion of a Rule 12(b)(6) motion into one for summary judgment under Rule 56 when the court considers matters outside tbe pleadings is 'strictly enforceldl' and 4mandatory''') (quoting Màkcr v . Weiner.m 179 F.3d 48. 50 (2d Cir. 19991). Plaintiff's pro se 's M otion to Strike - Pagc 4 of 5 Case 9:13-cv-80720-KAM Document 68 Entered on FLSD Docket 08/08/2014 Page 4 of 5 CONCLUSION 17. For the foregoing reasons , as well as for the reasons set forth in Plaintiffs' M oti on to Strike, Plaintiffs respectfully request that the Court strike from th e record Notice of Filing Certified Copy of Recorded Mortgagc (DE 641. W HEREFORE, Plaintiff , John Pinson,pro se, respectfully request that this Court enter an Order striking Defendants' Notice of Filing Certified C opy of Recorded Mortgage rDE 641 , and for any other relief that the Court deems appropriate . Dated: August 7, 2014 ectfully Submitted , l'-.à,it . .. .L, '' !k .. ... ...,. x -..j'. John Pirj on, pro se526 W/ twood Road W est Palm Beach, Florida 33401 561-329-2524 john@pinson.com CERTIFICATE OF SERW CE 1 hereby certify that a true and correct copy of the foreg oing document was filed with the Clerk of the Courq and is served by CM/ECF upon entry i nto the docket on a1l counsel , by the mandatory CM /ECF system . on the Service List below. Thomas H Loffredo, Ey. tom.loffredo@gray-roblnson.com Gray Robinson, P.A. 401 E. Las Olas Blvd., Ste. 1850 Ft. Lauderdale, FL 33131 Phone: (954) 761-81 1 1 Fax: (954) 761-81 12 Attornev ftpr Defendants: JpMorgan Chase Bank , N.A.; JpMorgan Chase & Co. S' ed August 7, 20 14 l ? i ve th '$ k h ) .. à'' ! - . -. )'John Pinjon èService Li st ) <'.<...> Patrick S. Scotq Esq. patrick.scott@gay-robinson.com Gray Robinson. P.A. 401 E. Las O1as Blvd., Ste. 1850 Ft. Lauderdale, FL 33 1 3 1 Phone: (954) 761-81 1 l Fax: (954) 761-81 12 Attorne.v for Defendant: CPCC Delaware Business Trust , a/k/a CPCC Dclaware Statutory Trust Plaintitrs pro se 's Motion to Strike - Page 5 of 5 Case 9:13-cv-80720-KAM Document 68 Entered on FLSD Docket 08/08/2014 Page 5 of 5