Matt Weidner – Fighting For The American People

Posts Tagged ‘capacity’

There is a major defect in almost every foreclosure case, and it continues even today, this late in the game.  We are still allowing unknown, unidentified and unauthorized Plaintiffs to appear in Florida courtrooms and ultimately take title to property.

All across this state, hundreds of millions of dollars in real property is changing hands and shifting around and back and forth between shadowy trusts, ill-defined entities and national institutions, but no one has any idea who these entities are, where they are based, how they are governed and how to track them down when things go wrong.

It all starts with a basic failure in pleading….the failure to plead capacity which is quite simply the failure to tell the court who you are and where your place of business is.  All sorts of things flow from this basic failure.  For instance many of these Plaintiffs rely on Powers of Attorney to execute documents such as Assignments of Mortgage….one of the problems is that an assignment based on a failed power of attorney is invalid and a power of attorney is not valid when the entity is a trust corporation that is not validly registered to do business.

On a more personal note, I’m trying to collect a judgment entered in my favor against “US Bank, Trustee”, capacity was never plead and now I’m having a devil of a time trying to figure out how to collect this judgment because I cannot track down, “US Bank”.  Read the documents below…

PITA – NoA, MTD, Cost Bond

CAPACITYTRANSCRIPT

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Look back at how long I’ve been screaming about “Capacity“.  CAPACITY, CAPACITY, CAPACITY.  No one has any idea who many of the entities are that brought suits to foreclose over the last several years, especially when they were plaintiffs of the alphabet soup variation, “the XSIS 2206- Alt Trust”.  What is that?  Where is that? Who is that?  Those are all questions judges should have been asking for years…especially before they granted that alphabet soup zombie trust the right to throw their neighbor out into the street.  Instead, the oft repeated judicial phrase was, “You haven’t paid your mortgage so I’m granting Summary Judgment.”  Far worse in my mind than a homeowner not paying a $1,000/month mortgage is a judge granting a $200,000 judgment to a zombie alphabet soup plaintiff.  Who owns those homes that you granted foreclosure to now your honor?  Who was that judgment assigned to after the fact?  Who or what took title to that property?  Why did no one care to think about all of this?

We screamed CAPACITY!  We screamed STANDING!  We screamed FRAUD!

Like Alice in Wonderland or the Twilight Zone, some judges claimed they couldn’t see anything.  Now it turns out that in many cases not only did they not have CAPACITY, not only did they not have STANDING, not only were the committing FRAUD.  They also had NOTHING, NADA, ZILCH.

The minions of this profound evil will turn this around on the judges that I hold such profound respect for.  They will shrug their shoulders and say, “We were just the proponents of our client’s case, it was the judge’s job to review the files and make sure we were not committing fraud.”  What about that retired couple that got thrown out into the street two years ago but their home still stands vacant?  What about that latino couple with a poor grasp of the language and our legal system, the husband defeated and destroyed because he could not keep the home he had bought for his family?  The single mom that did her best but just couldn’t keep her head above water?

All of them defeated by zombie trusts and a legal system too concerned with doing the bidding of the banks and institutions that were bailed out with our money.  The question is not how bad all this is or how deep it will go.  That sinking, sickening pit in all of our stomachs answers those questions. The real question is how will we work to make it right to all those people that were wronged?

We must all start with the perspective that our economy, our neighborhoods, our homeowner’s and condo associations are far better off with homeowners in those homes.  We must understand there is a powerful American ethic that homeowners want to pay a mortgage, they want to be bought into the system.  I’ve done hundreds of homeowner refinances and purchases.  When a homeowner signs those documents, there is fear, but there is pride.  Pride that I have a mortgage.  A sense of purpose that now I’m going to work and pay this mortgage for this home I own.  That was all tossed out the window in this brief flicker of time that was the securitization frenzy.

It’s now time to provide homeowners with a track to stay in their homes and support their communities.  We put our realtors, our appraisers, our contractors, our people back to work in our communities.  We collect mortgage payments from homeowners who are in these homes then we wait for the Wall Street Fat Cats to come on down and prove up their claim to the money and the mortgages that our elected circuit court judges are supervising.  The process is self-funding.  The infastructure and administrative capacity are already in place through the existing mediation programs that are up and running in circuits across the state.  The funding is in place once our courts turn away from the unfairness of the $9.6 million rocket dockets and focus on Stability for Florida Families.  The program is detailed below:

Florida Statute 69.021.

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The systematic failure of the banks that are bulldozing through communities across this country to plead their capacity is a key issue that should lead to dismissals of these cases.

The shadowy and shifty nature of these Plaintiffs who enter evidence in the name of one party, then either move to substitute in another party or worse fail to advise the court that the named party no longer has any interest in the case is a pervasive problem that we’re only now starting to come to understand.  This issue is important enough when we can at the very least identify who or what the corporations are, but this is particularly important in the mortgage foreclosure context where Plaintiffs are merging, being taken over by the FDIC or other federal agencies or who are otherwise shifting or morphing from one version of their former self to some other equally vague and nebulous form.  We all should be paying attention to all Motions to Substitute Party Plaintiff , especially when these are ex parte.

Exactly Who Are We Negotiating With?  Who Are We Litigating Against?

We should also pay careful attention to Assignments of Bid and confirming that the Certificate of Title provided by Plaintiffs as part of their Summary Judgment Packages matches up exactly with the Plaintiff whose name appears in the case.  What appears to be happening in cases all across the country is the names of the party who receives the judgment,  was apparently not entitled to receive that judgment.

LET’S ALL KEEP IN MIND THAT WE’RE NOT TALKING ABOUT SMALL MONEY HERE…WE’RE TALKING BILLIONS OF DOLLARS IN JUDGMENTS THAT ARE BEING ISSUED TO ENTITIES THAT WE HAVE NO IDEA HOW TO IDENTIFY, HOW TO SERVE, WHO REALLY HAS AN INTEREST IN THESE PROCEEDINGS.

Addressing these problems is a complex and decades long problem….the first step to addressing them is found below:

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There are a variety of complex legal reasons behind court rules that require the parties to litigation, both defendants and plaintiffs, to be properly plead or identified and set off in a complaint.  If I were being sued, the attorney drafting the lawsuit should identify me as, “Matthew D. Weidner, a resident of Pinellas County“.  We want to make sure it’s not that Matt Weidner guy who makes beautiful furniture in South Carolina or that other Matt Weidner who makes video games. Likewise, a Defendant in any lawsuit is entitled to know exactly and precisely who it is that is suing him.

Shifty, Amorphous Corporate Dragons Slithering Across American

Even more importantly in this age of shifty, amorphous corporate dragons slithering across the American and indeed the international legal, economic and geopolitical landscapes, it’s even more important that we know who is suing Americans.  Let’s keep in mind here that the corporate entities that are suing are first affecting a key American right–one specifically and repeatedly mentioned in the Constitution…..the right to be protected in their home from outside and especially government interference….when court power is invoked by private parties to to solve their disputes the constitutional concerns about abuse of government power are properly invoked.

Our legal system, and particularly our laws and rules that govern mortgages and foreclosures are largely unchanged from the turn of the century.  Much of the case law cited by Plaintiffs has dates on it that far predates any of the sophisticated banking and regulatory schemes we now find ourselves practicing in. Quite simply our courts and laws didn’t even come close to keeping pace with the dramatic shifting economic and legal landscape of mortgage finance that took place over the last ten years.

The Shifty, Confusing, Obfuscated Entities Crafted by The Wizards on Wall Street

We’re all just now starting to learn about the shifty, confusing, obfuscated entities that were crafted by the Wizards on Wall Street to monetize American’s homes, mortgages and our economy. We’ve only started to learn who the players are and we are a long way away from knowing just what their larger intentions are and how all the pieces fit together .  Take an example from the mortgage pool prospectus I attached to a file from earlier file:

IXIS Corporate & Investment Bank. IXIS Corporate & Investment Bank is a limited liability company (societe anonyme a Directoire et Conseil de Surveillance), incorporated on March 31, 1987. Initially named CDC International, the company changed its name to CDC Marches, and subsequently to CDC IXIS Capital Markets. Its name was changed from CDC IXIS Capital Markets to IXIS Corporate & Investment Bank on November 1, 2004. Its registered office is at 47, Quai d’Austerlitz 75648 Paris Cedex IXIS Corporate & Investment Bank originally was licensed as a finance company (societe financiere), a type of credit institution, in 1996 by the Comite des etablissements de credit et des entreprises d’investissement (the “CECEI”). In June 2004, the CECEI extended its license to enable it to conduct business as a bank. IXIS CIB now is able to provide a full range of core and ancillary banking services (except management of means of payment -”gestion des moyens de paiement”) and investment services (includng custodian-accountholder on own account and clearing broker – “teneur de compte conservateur pour compte propre et compensateur”). IXIS CIB is subject to French and European Union laws and regulations applicable to credit institutions and is regulated pursuant to the French Monetary and Financial Code. Background. Until October 1999, IXIS CIB was a wholly-owned subsidiary of Caisse des depots et consignations (“CDC”), a French public financial institution. In October 1999, CDC transferred 19.9 percent of its holdings in IXIS CIB to Caisse Nationale des Caisses d’Epargne et de Prevoyance (“CNCEP”). In April 2000, CDC transferred the entirety of its holdings in IXIS CIB to another of its subsidiaries, CDC Finance-CDC IXIS (“CDC IXIS”), a limited liability company (societe anonyme a Directoire et Conseil de surveillance).

(Look to Page 29 of the attached prospectus for more information on the parties to this particular transaction.)

Now I don’t know what in the world all that means, but it suggests to me that my little old client who is paying her mortgage ain’t exactly keeping that money in the neighborhood. I would also suggest that judges and officers of the court should take a little more time to understand just who are reaping massive bajillion dollar benefits from foreclosure courtrooms all across this country.

A Borrower Doesn’t Have A Right to Live In a Home For Free, But She Does Have The Right To Know Who Is Suing Her

Forcing Plaintiffs to at least plead the exact name of who is suing, i.e., Deutsche Bank, National Trust Company and to understand first the names of all the players then, importantly, the interrelationships and conflicts among all the players is a critical part of our efforts to both defend individual homeowners and, importantly,

To defend the fundamental integrity of American economic and legal systems.

We need to get judges past the simple question of “Did you pay the mortgage” and get them thinking about, “Your Honor, who are you giving millions of dollars to?  Does your judgment finance terrorist organizations? Does your judgment fill the coffers of third world puppet regimes? Does your judgment help multinational corporations evade income taxes?  All of these are legitimate questions that must be asked and answered before Final Judgment should properly be granted.

Get Judges Beyond Asking The Most Basic Questions and Engage Them in Larger and More Important Questions of Who They Are Transferring Vast Sectors of American Wealth and Real Estate To

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Years ago I filed a lawsuit on behalf of an out of state corporation client.  The opposing attorney filed a motion to dismiss because the corporation I was suing on behalf of was not registered with the Florida Secretary of State.  Fast forward to now when I’m building my practice on defending homeowners in foreclosure and the failure to register motion to dismiss issue is back…in a big way.

Capacity is Almost Never Plead In Foreclosure Cases

I have consistently argued that Florida law and Florida Rules of Civil Procedure require a plaintiff to be properly identified in order to maintain their lawsuit.  Properly identified means in the body of the complaint the full corporation or entity name is described along with its state or jurisdiction of registration.  (i.e. Bank of America a North Carolina Corporation or Bank of America a National Association chartered pursuant to the National Banking Act.)  In the vast majority of foreclosure cases filed in this state, the Plaintiff fails to identify who it is, how it is chartered and how it has the authority to bring the suit.  At best, you might find a plaintiff identified as, “U.S. Bank, N.A.”  What does “NA” stand for?  On a beer bottle it means “Non Alcoholic”. (I know this because it is written out.) While I’m 100% certain what it means in a foreclosure case, I’m pretty sure it means, “National Association”.  I’m also pretty sure that in some instances when the Plaintiff is “US Bank, NA” that plaintiff may (emphasis added) be exempt from some state laws.   I say may because I’ve actually read the National Banking Act and I’m very clear about the exemption/preemption language in the Act.  Some acts of NA plaintiffs are exempt and some state laws are preempted….but many more (and potentially the important ones) are not.  Taking deposits and collecting money is clearly exempted, but I’m not at all convinced that engaging in trust related activities is.  I’m also pretty sure that breaking down doors and unilaterally repossessing a borrower’s home without court process is not preempted by state law either. Anyway, the point is, Plaintiffs must be required to plead out their capacity at the start of these cases so that a whole range of other issues related to the Plaintiff’s action are on the table from the front end.

I’ll follow up more on this case later, but after this Order was issued, the Plaintiff amended their complaint to add yet a third party into the mix…the mortgage was written by World Savings, then they assert that World Savings was assumed by Wachovia, but that after they filed Wachovia was assumed by Wells Fargo….and so now a third party who conceivably has an interest in this case is being drawn in.  Problem is, the version of “Wells Fargo” they plead in is different than the evidence they attached to their amended complaint to prove up that Wells Fargo was the proper party in interest…so I’ve filed a Second Motion to Dismiss in this case…..stay tuned.

The full text of the opinion as published in the Florida Law Weekly is found below: Online Reference: FLWSUPP 1702MATA

Mortgages — Capacity to sue — Where plaintiff has failed to plead or specify in what capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has not pled capacity to sue — Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint — Case dismissed without prejudice WACHOVIA MORTGAGE, FSB F/K/A WORLD SAVINGS BANK, Plaintiff, v. ANNE MATACCHIERO, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 08-16936-CI-13. December 15, 2009. Anthony Rondolino, Judge. Counsel: Brianna Finch. Matthew Weidner.

ORDER

THIS MATTER, having come on consideration from the Defendant’s Motion to Dismiss, filed by counsel for Defendant Matthew Weidner, this Court having reviewed the pleadings filed in this matter and accepted argument of counsel who appeared before the Court, it is hereby, ORDERED AND ADJUDGED that:

1. In its Motion to Dismiss, counsel for Defendant noted that the only identification of the Plaintiff appears in the caption of the Complaint and the first paragraph where the Plaintiff is identified simply as, “Wachovia Mortgage, FSB, F.K.A., World Savings Bank”. The Plaintiff’s name is not set off or specified within the body of the Complaint or in any other pleading nor is any description provided to explain the legal nature of the entity or to define what the initials “FSB” stand for.

2. Counsel for Defendant, in its Supplemental Memoranda in Support of Motion to Dismiss, cited Florida Rules of Civil Procedure Rule 1.120(a) Pleading Specific Matters which provides that:

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. . . .When a party desires to raise an issue asto the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

3. Counsel for Defendant also cited Florida Rules of Civil Procedure Rule 1.110(b) which requires that a Complaint include a “short and plain statement of the grounds upon which the court’s jurisdiction depends. . .” Counsel for Defendant asserted that by failing to plead or specify in what capacity the Plaintiff brings suit and by failing to define or identify in any way the nature of its legal entity, the Plaintiff has not plead that it has the capacity to maintain suit before this Court.

4. “Capacity to sue” is an absence or legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties § 31 (1971). This is in contrast to “standing” which requires an entity have sufficient interest in the outcome of litigation to warrant the court’s consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla.App. 4 Dist. 1982)

5. Counsel for Plaintiff introduced a Response to Defendant’s Motion to Dismiss in which it claimed the Plaintiff was both a Federal Savings Bank and not required to register with the Secretary of State in order to establish capacity and that it was a foreign corporation and exempt from registration pursuant to Florida Statute 607.1501. The inconsistent allegations made in Plaintiff’s response are not facts that have been plead and such facts must be plead so that Defendant may respond to them through a responsive pleading.

6. Counsel for Defendant represented to the Court that his research revealed few Florida Court opinions which address the issue of capacity to sue, but urged this Court to consider Federal Court opinions interpreting Federal Rule of Civil Procedure 9(a) from which Florida Rule of Civil Procedure Rule 1.120(a) is derived.

7. The issue of capacity to sue may be raised by motion to dismiss where the defect appears on the face of the complaint. Hershel California Fruit Products Co. v. Hunt Foods, 111 F. Supp. 603 (1975), quoting Coburn v. Coleman, 75 F. Supp. 107 (1974); Klebano v. New York Produce Exchange, 344 F.2d (2nd Cir. 1965).

8. Failure to raise the issue of a Plaintiff’s capacity by a specific negative averment has been held to constitute a waiver of that defense. McDonough Equip. v. Sunset Amoco West, 669 So.2d 300 (Fla.App. 3 Dist. 1996); Plumbers Loc. U.N. 519, Miami Fla. v. Serv. Plbg., 401 F. Supp, 1008 (1975); and see Sun Val. American Land Lease, 927 So.2d 259 (Fla.App. 2 Dist. 2006); Shaw v. Stutchman, 105 Nev. 128 (1989).

9. The Defendant’s Motion to Dismiss is GRANTED and the case is dismissed without prejudice except that the Plaintiff shall have twenty (20) days from the date of this Order to file an Amended Complaint to address the matters raised within the Defendant’s Motion to Dismiss. 10. If the Plaintiff Amends its Complaint the Defendant shall have twenty (20) days from the date of receipt of Amended Complaint to file its responsive pleading.

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A Motion to Dismiss filed by Matthew Weidner that was granted by Pinellas County  Judge Anthony Rondolino was recently published in the Florida Rules Reporter.  The published citation, which challenges the capacity of Plaintiffs to file foreclosure lawsuits against Defendants without proving their legal capacity to do so has the potential to grind foreclosure cases across the country to a halt.

For more information on the publication, click here.

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