IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY

CIVIL DIVISION

HSBC BANK, USA, NA Case No. : 29-2010-CA-022790

Plaintiff, Division: B

vs.

EUGENIA WEST,

Defendant (s)
_________________________/

MOTION TO STRIKE COMPLAINT

COMES NOW, the defendant, EUGENIA WEST, (hereinafter“Defendants”), by

and through undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140

(b), 1.420 (b) and 1.110 (b), hereby motion this honorable Court to grant and order

striking the Complaint of Plaintiff, HSBC BANK, USA, NA, (hereinafter “ Plaintiff”)

and, in support , state as follows:

1. Plaintiff’s Complaint is not verified.

2. Plaintiff Complaint is not verified within the body of the complaint. The

requirement of Fla state. 92.525(2) also state that verification “shall be printed or

typed at the end of or immediately above the signature of the person making the

declaration.” No such verification attached to the complaint; therefore, does not

comply with this requirement. Please see a Manatee county (Twelfth Judicial

Circuit) May 6th, 2010 Final Order Dismissing SUA SPONTE, due to incompletely

verified complaint ( which “ Upon review of the record, the Court has determined
 that Plaintiff’s complaint is to foreclosure a residential mortgage and that certain

portions of it are not verified”) Attached hereto as Exhibit “B”.

3. The Plaintiff‘s supported verification contains language that verification is to the

best of signers knowledge and belief and not in conformity with Fla. Stat.

92.525(2). Henry Trawic makes clear that “verification” means that the verifying

party attests that the facts alleged in the complaint are true. Trawick Florida

Practice and Procedure Sec. 6:14 (Verification). Beverette v. Graham, 131 So. 826,

287 (Fla. 1931) ; Burns v. Burns, 174 So.2d 432, 434 (Fla. 2d DCA 1965). “ If

verification is required by rule or statute then it may not be based on “information

or belief”. Moreover, it is clear that failure to verify may not be based on

“information or belief”. Moreover, it is cleat that failure to verify may be attacked

via a Motion to Strike.

4. Circuit Court judges across the State are dismissing the Foreclosure Complaint

(when not properly verified or not verified whatsoever) at least without prejudice.

Please see also Judge Lynn Tepper’s Order granting Homeowners Motion to Strike

Unverified Complaint in Nationstar Mortgage v. Lynn E. Menke, Pasco County

Case No. 2010-CA-3249 (J4). Copy of Order Attached hereto as Exhibit “A”.

5. Plaintiff has failed to conform to the newly instituted Florida Rules of Civil

Procedure concerning foreclosure complaints.

6. The Florida Supreme Court has recently adopted a new Florida Rule of Civil

Procedure for all mortgage foreclosure complaints involving residential real

property some of which became effective “immediately with the publication of the

opinion.” The new Florida Rule of Civil Procedure 1.110 (b) requires the utilization
 of verified complaints and became applicable to Florida Courts on February 11,

2010. See Fla. Sup. Ct. Order SC09-1460 and SC09-1579.

7. The Florida Supreme Court requirement went into effect February 11, 2010. See

Fla. Sup. Ct. Order SC09-1460 and SC09-1579, p. 9-10.

8. Plaintiff’s Complaint was filed with the Court on November 23, 2010.

9. As such, Plaintiff’s Complaint should have been verified pursuant to the amended

Florida Rule of Civil procedure 1.110(b)

10. Henry Trawick makes clear that “verification” means that the verifying party

attests that the facts alleged in the complaint are true. Trawicks Florida Practice and

Procedure Sec. 6: 14 (Verification). Beverette v. Graham, 131 So. 826, 827 (Fla.

1931) ; Burns v. Burns, 174 So. 2d 432, 434 (Fla. 2d DCA 1965). If verification by

rule or statute then it may not be based on “information or belief”. Trawicks

Florida Practice and Procedure Sec. 6:14 (Verification). Moreover, it is clear that

failure to verify may be attacked via a Motion to Strike. Id

11. Plaintiff’s complaint is not properly verified- as such defendants seek said

Complaint be stricken for its failure to adhere to the Florida Rules of Civil

Procedure.

12. Defendants seeks attorney’s fee for this motion and any hearing upon said motion

under the terms of the mortgage filed with the Complaint and under the “compelled

mutuality of attorney’s fees” provisions of Florida Statute 57.105 (7).

WHEREFORE, the Defendant respectfully request the striking of Plaintiff’s

Complaint, along with costs, attorney’s fees and any other remedy that this

honorable Court deems just and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy has been furnished to Kali

Campbell, Esq. Florida Default Group, Attorneys for the Plaintiff, P.O Box 25018,

Tampa, FL 33622, by U.S Mail this ____, day of ________, 20___.

MILLS LAW, P.A

_____________________________

Roger O. Mills, ESQUIRE

P.O Box 172446
Tampa, FL 33672
Fl. Bar # 364746
ATTORNEY FOR DEFENDANT