Let’s let him know he has our support!

http://www.votepinellas.com/index.php?id=117

There is significantly more inside that administrative order that will also likely result in various interpretations by the circuit court judges as this all gets tested – in real time. It is not a total victory yet, although it is the best that foreclosure defendants have received from the judiciary in Florida so far. I have been mind mapping out the various aspects of this order and if I’m right, this work may likely result in writing a treatise on the order and the forms that were adopted by the court. Defendants will lose big if this is treated merely as just mandatory mediation. I will be hosting a free webinar on this subject in January. Interested in attending?

By the way, what are you using to track the collection and management of client documents and financial information required for mediation, loan mods, negotiations, etc.? I am rolling out a new system in January to help law firms deal with this. FYI.

Florida Stat. § 865.09, AKA the Fictitious Name Act, prohibits an entity that has not complied with registration requirements to maintain an action in any Florida court. This statute allows a foreign corporation to comply with the statute by registering within its own jurisdiction. So, at first glance compliance is not an issue. However, just like in this case, the plaintiff fails to allege sufficient facts for the court and the defendants to know what jurisdiction the suing entity is domiciled. Result: faceless plaintiff.

This is even worse with entities appearing as trustees to some MBS pool. The rules of civil procedure were designed to allow the defendant an opportunity to face his/her accuser – just like in the criminal context. The defendant and his/her attorney cannot possibly know who to serve with the scant information (really no information) shown on the face of the complaint. So, whether it is the lack of capacity to sue – as in the Wachovia case – or the failure to comply with the Fictitious Name Act, this defect must be attacked early or it is waived.

I maintain that this defect is also jurisdictional. There is no way a circuit court judge could determine if there is in fact any controversy between the parties to the action if the identity of the plaintiff is not factually established. A controversy is a requirement for the court to acquire and perfect its subject matter jurisdiction. This argument has been part of many motions and appeals I have worked on over the past few years. The federal courts were the first to rule properly on this point, beginning with Judge Boyko. That is because they get it when it comes to subject matter jurisdiction and the requirement for an actual controversy.

I believe Judge Rondolino got it right. Congratulations on this result. I have forwarded the order to my network of attorneys. I conduct advanced foreclosure defense training in the Orlando area.