Foreclosure Defense Florida

Foreclosure Case Dismissed in Pinellas County Based on Florida Rule of Civil Procedure 1.120(a)

On December 16, 2009 Pinellas County Circuit Court Judge Anthony Rondolino granted a Motion to Dismiss which was filed by St. Petersburg attorney Matthew D. Weidner on December 16, 2009.   The foreclosure case was filed by Wachovia Mortgage against Weidner’s Client, Pinellas County resident Anne Matacchiero.

Weidner’s Motion to Dismiss asserted that because the entity filing the lawsuit was not properly identified as a Florida corporation, that Plaintiff could not continue its pursuit of the case according to Florida states and rules of civil procedure that restrict the activities of out of state corporations.

According to Weidner, the ruling has major impact on foreclosure cases filed across the State of Florida and in Pinellas and Hillsborough County in particular because the Plaintiff’s are not identified as required by law in the vast majority of cases.   Weidner further claims that, ” If this argument was effectively made and the same ruling issued, it could result in approximately 70% of the cases currently pending in Pinellas County being dismissed.”

Does the Plaintiff have the right to foreclose?

Whether the Plaintiff that has filed foreclosure cases across the country has the capacity or the standing to maintain the lawsuits they’ve filed is increasingly becoming a key issue in many cases.   The majority of the loans that are being foreclosed on in courts around the country are no longer held by the bank or mortgage company that made the loan in the first place.   When the Plaintiff filing the lawsuit is not the original lender, real questions exist about whether they have the legal authority required to be pursuing the foreclosure case against the homeowner.   An even more complicated issue exists when the Plaintiff filing the lawsuit is not a corporation, but is a trust company or some other exotic or shadow entity that claims to be pursuing the foreclosure case on behalf of another entity as is often the case.

Can the Plaintiff produce the documents necessary to foreclose.

Much attention has been given over the last several months to the fact that oftentimes, the Plaintiffs filing foreclosure lawsuits are not able to produce the basic documents they need to file a foreclosure lawsuit, much less all the documents they need to produce in order to win a foreclosure case. Examples of documents that need to be produced include the note, assignment of mortgage and an accurate statement of account.   Because many lenders cannot even prove they are qualified or entitled to appear in court, they never get the point of producing the documents necessary to effectively proceed with their foreclosure case.

For more information, contact Matt Weidner at www.mattweidnerlaw.com

9 Comments

  • David Acosta says:

    Matt, excellent work here. I have been assisting attorneys in the foreclosure defenese arena for the past five years and have repeatedly argued that the vagueness of the plaintiff’s presence in the lawsuit should be attacked for failure to comply with a number of statutory requirments. Your lack of capacity argument is akin to what I teach as the 865 argument.

    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.

    • admin says:

      Thank you for your comment; we’ve got a great network of committed defense attorneys here and we’re coming up with great stuff. I’m very pleased to report that the judges in this circuit really get it. It is clear to me from the Florida Supreme Court Final Order that the courts know what a disaster all this is and they’re struggling not to issue orders that force the whole system to collapse. Ordering everyone to mediation is a punt and a way to say to the lenders…..the defense guys have you on the procedure and the “legal” stuff so go work it out. Note that in the mediation order Plaintiffs are required to prove up a chain of title if requested by the Defendant….that’s a big hidden silver bullet….what happens to the mediation and the case when they cannot do that? Keep up the good fight and let me know what you guys are up to over in Orlando! We’re working on really big things over here and we would all benefit from bouncing ideas….

    • Dion says:

      I have been representing myself in a couple properties i own and just got out of court on my first with mr. strickland. He says i have a good law sute against country wide. I NEED a contingency lawyer for this one????
      Dion

    • jb thornberry says:

      David Acosta
      could you contact me via email about the Florida Stat. § 865.09, AKA the Fictitious Name Act and how the Plaintiff must be identified in the language of the complaint in order to qualify under this act.
      i am acting Pro Se and have 10 days to compile my Aff Def’s
      thx in advance
      jb
      jbthornberry@aol.com

  • David Acosta says:

    Matt, as you have pointed out in this last post there is much more to the new mandatory mediation order than meets the eye. Yes, the plaintiffs will have to submit something to show their right of action. However, it would be naive for us to believe they will finally do the right thing in demonstrating ownership of the note and mortgage. It is very likely the typical fight over standing will move from the court to disputes that begin pre-mediation and eventually lead to motions that will come before the court for resolution on this.

    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.

    • admin says:

      Love to be on the webinar, let me know. One significatn aspect is that the supreme court has decided chain of title and other issues are important, judges do know that it is important, they are just struggling with how to deal with it. It’s just going to be more discovery and time for us.

  • Kevin says:

    Great result. We need to share our published circuit court orders, such as this one, to help explain and convince to the more difficult judges that they actually need to follow the rules of civil procedure and apply the law…even in foreclosure cases.

    • admin says:

      Thanks for the comment and keep the comments and visits up. Email me anything interesting you have, I’ll be happy to share docs with you. I occasionally get calls from potential clients down your way and I will consider referring to you. Attoneys need to work harder to increase the number of clients who do not respond to the foreclosure complaint.

  • Dave L says:

    Great job by Matt and Judge Rondolino.

    Let’s let him know he has our support!

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

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