United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
THE COURT is Hugh Palmer and Recquel Palmer's
Motion to Dismiss Plaintiffs Verified Complaint, (Dkt. 110),
which Plaintiff opposes. (Dkt. 113). Upon consideration, the
motion is DENIED.
as successor in interest by merger, alleges that it is a
party in a lending relationship with Bakerfield Custom Homes
Corp. and Walter F. Linfield, Trustee of the Walter F.
Linfield Revocable Trust ("the Obligors") relating
to a mortgage obligation owed by the Obligors. (Dkt. 1 ¶
2). It filed this foreclosure action against the Obligors,
among others, including potential purchasers of real property
being developed by Bakerfield having an interest in the
property subject to the mortgage. (Dkt. 1). Plaintiff seeks
to foreclose its mortgage, which it alleges includes property
in which Hugh and Recquel Palmer have an interest. The
Palmers move to dismiss arguing that Plaintiff has not
sufficiently alleged that it has an interest in their
complaint should contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). This rule does not
require detailed factual allegations, but a plaintiff s
complaint must contain more than unadorned or conclusory
accusations of harm. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The complaint must "plead all facts
establishing an entitlement to relief with more than
'labels or conclusions' or a 'formulaic
recitation of the elements of a cause of
action"' Resnick v. AvMed, Inc., 693 F.3d 1317,
1324 (11th Cir. 2012) (quoting Bell Ad. Corp. v.
Twombly, 550 U.S. 554, 555 (2007)). In evaluating a
motion to dismiss for failure to state a claim under Rule
12(b)(6), the relevant question is not whether the plaintiff
will ultimately prevail, but whether the allegations are
sufficient to allow the plaintiff to conduct discovery in an
attempt to prove the allegations. See Jackman v. Hosp.
Corp. Of Am. Mideast, Ltd., 800 F.2d 1577, 1579-80 (11th
elements to foreclose real property in Florida are: (1) an
agreement, (2) a default, (3) an acceleration, and (4) the
amount due. Black Point Assets, Inc. v. Fed. Nat'l
Mortg. Ass 'n (Fannie Mae), 220 So.3d 566, 568 (Fla.
5th DCA 2017) (citing Kelsey v. SunTrust Mortg.,
Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014)). And, under
Florida's foreclosure proceedings, parties who have an
inferior interest in property are included as defendants.
See T-R Indian River Orange Co. v. Keene, 168 So.
408, 409 (Fla. 1936) ("where different persons have
rights or interests in specific land, the foreclosure of a
mortgage upon the land affects the rights and interests of
only such persons as are made parties actually or
constructively to the foreclosure proceeding");
Abdoney v. York, 903 So.2d 981, 983 (Fla. 2d DCA
party with an inferior interest is omitted, that party's
interest is unaffected by the judgment Keene, 168
So. at 409; York, 903 So.2d at 983. Therefore,
"by naming a party in the complaint, the plaintiff
provides notice to the named parties that the plaintiff is
asserting a superior interest." Fannie Mae, 220
So.3d at 568 (holding that a foreclosure complaint need not
explicitly allege that the plaintiff s interest is superior
to the parties' interests being foreclosed to state a
Palmers do not contest that Plaintiff sufficiently alleges a
cause of action for foreclosure under Florida law, but rather
that the allegations regarding their property are
insufficient. Plaintiff alleges that the Palmers "may
claim some right, title, or interest in some or all of the
Mortgaged Property; however, any such right, title, or
interest is junior and inferior to that of the Bank,
including without limitation those arising under the Loan
Documents . . . ." (Dkt. 1 ¶ 50). The Mortgaged
Property consists of "real property and improvements
located in Pasco County, Florida... and more fully described
in the Loan Documents [, which includes the Mortgage Spreader
and Funding Agreement, in addition to a number of documents],
and the notice of lis pendens accompanying this
Complaint." (Dkt. 1 ¶ 29).
counters that the Palmers' property is referenced in
Subsection B of the Mortgage Spreader and Funding Agreement
in the Modification of Mortgage and Promissory Note, and Loan
Documents dated April 17, 2014, recorded in Official Records
Book 9030, Page 1693-1697, attached as an Exhibit to
Plaintiffs response. (Dkt. 113 at 15-18). Taking
Plaintiffs allegations as true, it sufficiently alleges that
the Mortgaged Property includes the Palmers'
property. See Iqbal, 556 U.S. at 678;
Fannie Mae, 220 So.3d at 568; York, 903
So.2d at 983. And, contrary to the Palmers' contention,
Plaintiff is not required to attach the document identifying
their property to the Complaint. See Fed. R. Civ. P.
8, 10; see also Chamberlain v. Integraclick, Inc.,
No. 4:10-CV-00477-SPM, 2011 WL 2118699, at *2 (N.D. Fla. May
25, 2011) ('"attachment ... is permissive only, and
not mandatory'" (quoting Ryan v. Glenn, 52
F.R.D. 185, 192 (N.D. Miss. 1971)
(alteration in original))); United States v. Vernon,
108 F.R.D. 741, 742 (S.D. Fla. 1986) ("written
instruments are not required to be attached to a party's
pleading"); Fannie Mae, 220 So.3d at 568.
Hugh Palmer and Recquel Palmer's Motion to Dismiss is
DENIED. They shall answer Plaintiffs
Complaint within fourteen (14) days.