Judges in Pinellas County Have Begun to Deny Defendant’s Motions To Dismiss Without Hearing- A Stunning Denial of a Homeowner’s Fundamental Rights!
Author: Matthew D. Weidner, Esq.
Ex-Parte Orders Denying Motions To Dismiss- THE COURTHOUSE IS CLOSED TO LOCAL HOMEOWNERS WHO PAY TO KEEP IT OPEN!
Last week I reported a rumor that judges in Pinellas County were going to begin denying Motions to Dismiss without having a hearing on the matter and accordingly, without fully considering the legal issues and facts contained within the Defendant’s motion. Those rumored orders have begun to surface, with the judges including the following findings in the Orders:
- No evidentiary issues are presented by Motion and the court is thus able to rule w/o hearing.
- Complaint contains all necessary allegations to state a cause of action for foreclosure.
- Court must assume all facts alleged in complaint are true and must confine itself to four corners. Temples v. Fla. Indus. Const, 310 So. 2d 326
- Fact that Plaintiff are not named mortgagee is not basis for dismissal; assignees has same status as if named in mortgage. Foster v. Foster 703 So. 2d 1107
- Plaintiff has alleged that is is holder of note. Being the holder of negotiable instrument is all that is necessary to have standing & mortgage note is a negotiable instrument per Fla. Stat 673.1041; Mason v. Rubin, 727 So.2d 283.
A fundamental issue raised in many Defense Motions to Dismiss is that the note and mortgage attached to the complaint say that one creditor is owed the money sued upon and thus has the right to collect the money from the borrower, while the form allegations contained within the Plaintiff’s poorly-drafted complaint provide that another party (namely the Plaintiff) has the right to collect the money claimed in the lawsuit. When challenged on these crucial details, the Plaintiffs often commit fatal evidentiary and pleading issues by submitting false affidavits questionable endorsements and bogus assignments of mortgage.
Contrary to the recent court orders which assert that these inconsistencies are irrelevant, there are a wealth of court orders from across the state that make it very clear that documents attached to a complaint are important. (They are after all the entire basis for the lawsuit.) Bottom line is the Plaintiff must provide some evidentiary basis to establish their right to be suing the Defendant. A sampling of such cases provide:
- When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000)
- Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss. Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008)
- When there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable. Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971)
Ex-Parte Orders That Swims Against The Current
The foregoing are just a few of the cases and legal basic research will provide any pro-se litigant with an armful of case law to support the proposition that the contracts attached to a foreclosure complaint must match up with the allegations contained within the complaint. These are seasoned and well-established cases that make the point but the even more exciting developments are the recently issued Second District Court of Appeals Case BAC Funding v. US Bank and the new Supreme Court Rules of Civil Procedure (Copies of which are posted elsewhere in this blog) which require the Plaintiff to verify or sign the Complaint under oath as a condition of filing the lawsuit. It is fantastically ironic that these new ex parte Orders of Denial were released in the same week that the new Rules of Civil Procedure were released and the new Second District Court of Appeal case was published. These developments reflect a clear shift in the foreclosure landscape which conflicts with the lower court ex-parte orders….I’m predicting a quick reversal of this new ex-parte process.
18 Responses to “Judges in Pinellas County Have Begun to Deny Defendant’s Motions To Dismiss Without Hearing- A Stunning Denial of a Homeowner’s Fundamental Rights!”
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It appears that the path least taxing to Florida judges is simply to deny a defendant’s motion to dismiss without any meaningful examination of the allegations and contradictions introduced by the plaintiff’s pleadings. It is a method of self-preservation. However, this leaves the defendant, and defense counsel, in a position having to defend against a party that has failed to state a claim and many times is not the real party in interest. Contradictory allegations are not merely technical pleading defects, they are the real red flags that something in this pleading is wrong.
The legal arguments you cite, along with the cases, is part of what I teach in my foreclosure defense course. These arguments are a regular part of the motions to dismiss and memos I draft for my attorney clients. Florida judges do not appear to be in harmony on these rulings. Where the district courts point to the neutralization of pleading allegations, circuit courts simply ignore these. Essentially, the judges supply the missing allegations or simply connect the dots. This is in direct conflict with the cases that clearly enunciating a prohibition against supplying essential pleading elements by inference or speculation. See Alvarez v. E & A Produce Corp. 708 So.2d 997, (Fla. 3rd DCA 1998)(citing Ocala Loan Co. v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963); see also Edwards v. Maule Indus., Inc., 147 So.2d 5 (Fla. 3rd DCA 1962)
The judge is not supposed to connect the dots.
A majority of these foreclosure complaints allege that the plaintiff holds the promissory note within the count seeking mortgage foreclosure. However, no exhibit attached to the complaint supports this allegation, but rather shows a transaction between the defendants (allegedly) and a non-party to the action. There is also no exhibit showing any form of conveyance to the plaintiff, such as an endorsement on the copy of the note or any assignment of the mortgage. Essentially, anyone could come in and state a claim for relief by simply copying these documents from the public records and claim they are the holder of the note and mortgage and thus are entitled to relief.
Then, the plaintiff alleges in a separate count that the note is NOT in their possession, while seeking to enforce or re-establish it under Fla. Stat. § 673.3091. Obviously this count is dispositive of the entire complaint/action (in favor of the defendant) because it is never adequately pled or supported. So, the plaintiff alleges to be a holder in count I seeking foreclosure, then, alleges it is not a holder in count II seeking enforcement or re-establishment of a lost note. It is certainly perplexing that Florida judges find a way to look past this pleading discrepancy.
The ruling in BAC Funding v. US Bank, and similar “bank v. bank” cases, where the outcome is more consistent with standing law, leaves observers doubtful that a homeowner defendant (non-institution) can ever get a proper and balanced adjudication of the issues in line with existing and good Florida case law. It just does not happen. However, pit a bank versus another bank and the outcome follows the law. Attorneys for BAC Funding made the exact same arguments foreclosure defense attorneys have been bringing before the judges across Florida only to be routinely shot down. The difference in the BAC case: institution v. institution.
Floridians should take note.
Ex-parte denials of motions to dismiss is merely an extension of this mindset and behavior. I maintain that counsel should build a good record (i.e., court reporter, proper and timely filings, affidavits, etc.) and find the right cases to bring before the district courts to begin reshaping the thinking within the judiciary. There is now more energy and momentum in the direction of consumers – of course aided by the plaintiff’s abuses that have repeatedly come to light.
Keep up the good fight.
The one cause I have been attempting to champion is the duality in dispensing the law by judges. As you say, institution v. institution will get a ruling one way yet the very same case if institution v. private citizen will get a ruling against the defendant.
Judges are human beings and have their good days and bad days which – like with all the rest of us – will affect our decision making process.
But this is not the case in our courts. A “bad hair day” is understandable – that is one reason for the Appellate process – but daily “bad hair days” of judges are simply not possible or ACCEPTABLE. It is simply unlawful, unjust, un American and un Patriotic and UN CONSTITUTIONAL!
The problem in our court system is that the “equity” no longer exists there. Judges are ruling as if they are creating the laws not upholding them. They rule based on their own opinions and beliefs when clearly those beliefs are contrary to existing law.
This being the case, Statutes and Rules of Civil Procedure are meaningless unless you are a major institution. People, the average Joe, the citizenry seem to have no rights at all. Is this Democracy and Freedom?
We, as a nation are all in a terrible place unless we can bring JUSTICE back to THE PEOPLE.
These foreclosure scams must be stopped. The banks are using the courts to continue their illegal activity and for the continuation of the transfer of wealth fROM the population at large.
It is refreshing to find people like Matt Weidner and David Acosta who also champion the cause for Freedom and Justice.
Keep up the good work. I stand ready to fight and assist in any way I can to right the wrongs that have befallen upon us.
As you said recently Mr. Weidner, it is the duty of every patriot to do so.
As usual, exceptional comments David; I’m going to look up those cases you cite and use them…I’m up this morning with another issue in the hopper…..get ready for another brain bender.
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That’s why they are going the non-judiciary route. I believe they don’t truly look at them when you do provide the evidence through non judicial means. In my case I am ppro se and they didn’t deny my claims and proof of false/misleading documents…just I didn’t follow all the right proceudres to present them.
At the beginning of the case they supposedly had the note, in the middle when I filed for foreclosure, they presented a different note, now when I question them they show a note with a stamp on it. They also showed two substitute trustees notes replacing the same person, different banks. It takes days after I submit something to the court for it to show up on the website as being submitted, but they make a decision and it shows up the same day.
It truly sucks to lose your house on a technicality of complicated procedures, doing it pro se because it’s not worth pursuing for attorneys in a smaller town.
There is no question that Fraud on the Court is committed by many banks/lenders or plaintiff’s with no standing. There is also no question that Pro Se litigants face an uphill battle, especially in foreclosure cases where the cards and the courts are stacked against you.
I am not an attorney – just a consumer advocate – who encourages everyone to fight, keep fighting and fight some more as difficult as it may be. There are sites like this one and others that can help guide you. It is a frustrating situation and emotionally draining but you must not give up.
Of course, the best way to fight is with an attorney knowledgable in this area. Money is short but perhaps a little spent on some representation can be worth a lot more in the long run.
Keep up the fight and good luck.
Sorry: The link for my name is incorrect. clicking my name on this reply will take you to the correct spot.
To the publisher: If you can correct it or delete it on my previous replies, I would appreciate it.
Sorry for the misdirection and inconvenience.
This really is sad sad day for Pinellas! How can this be possible???
Caught on video Judges Pensions Funds are Investing in Foreclosures. Could be happening in Florida?
http://www.youtube.com/watch?v=0WeB2klekfo
i think it is time that the names of these inept or corrupt judges be made public so that the electorate can boot them out of office.more likely than not they will be failures as practicing attorneys as they were prior to running for judge.pretty much of the same is happening in miami dade county with a few judges.but believe me they will be brought to the public light.
Thank you so much for all that you are doing … Love your site, I’ve been an avid follower of N.G.’s LivingLies, and that’s how I found you.
Yesterday Neil posted some very good info concerning ‘Trusts, Trustees and Beneficiaries’. Included in the article are links to the Florida Statutes that regulate Banks and Trust Companies.
Can you show me how to find the same type of statutes that govern the State of Oregon?
What party should I be searching for in the Trust registry? The “Trustee” (US Bank NA) or the exact name of the trust from the SEC prospectus?
If it can be determined that the”Trust” was required to register with the state but did not, is it appropriate for a Motion to Dismiss for Lack of Capacity be filed?
Do you have a template for Motion to Dismiss for Lack of Capacity?
Again … Thank you,
Lisa~
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