The secret is out, judges in the Sixth Judicial Circuit of Florida have their judicial robes firmly around the foreclosure crisis and are applying and enforcing existing and new laws that apply in mortgage foreclosure actions. In the face of a growing body of evidence that documents and “evidence” presented by lenders and their attorneys that does not add up, judges are requiring more. According to the brilliant attorney that argued and won this latest motion, Pinellas County attorney Matthew Ellrod:
A MTD is limited to consideration of the four corners of the
complaint and its attachments. Since the note has only been filed
separately and the complaint has not been amended to incorporate those
documents, the later filing must be ignored and the complaint still
fails to state a cause of action until it has been properly amended.
Filing the note separately, and then talking the judge into ignoring the
rules of procedure and considering the filing on the MTD, prohibits your
client from properly raising any defenses or other issues that might
arise out of the form of the newly disclosed note (because you, unlike
the plaintiff, are obeying the legal limitations of MTD’s). At the very
least (though this is not the correct thing), if the court denies the
MTD it should find that the initial complaint and the later-filed note
shall be considered as a whole to be an amended complaint, and allow the
defendants to file responsive papers to the amended complaint within a
The Full Text of the Judge’s Order can be found here.