Matt Weidner – Fighting For The American People

Posts Tagged ‘IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE. Supreme Court of Florida. Case No. SC09-1460’

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.