Foreclosure Defense Florida

Foreclosure Cases That Don’t Allege Capacity to Sue Should Be Dismissed.

I’ll answer the specific question, “Who has the right to file a foreclosure lawsuit in ?” in a bit, but I want to begin from another direction.   The first question a competent attorney should ask is, “Does the plaintiff who is suing my client have the right to file a lawsuit in Florida against my client?”   The fact of the matter is that a variety of statutes and rules prohibit various persons and entities from availing themselves of the jurisdiction of Florida courts.

Minors may not alone avail themselves of the jurisdiction of any court of this state; neither may individuals who are otherwise incompetent.   Minors and incompetents may only access the courts of this state through guardians or other legal representatives.   Personal representatives appointed by in estates opened in other states may not maintain suit in this state.   An ancillary estate must be opened in this state.   Businesses operating as a fictitious name may not maintain suit.   Only the individual who runs that entity may file suit.   Foreign corporations not registered with the Secretary of State may not maintain suit in this state.   They must first register as a foreign corporation.

This brings me to a problem I’ve long had with the sloppy, potentially misleading and incomplete pleadings filed by foreclosure law firms across the State of Florida.   In first year law school we learned that when you drafted a lawsuit, the caption of the lawsuit was, “Acme Corporation, a Florida Corporation Plaintiff v. John Q. Citizen, Defendant”   Paragraph one stated, “Acme Corporation is a Florida Corporation properly registered with the Secretary of State”.   Paragraph two stated, “John Q Citizen is a resident of Pinellas County”   Paragraph three stated, “Damages exceed $15,000”.   These elements are required to comply with Florida Rules of Civil Procedure Rule 1.120 which provides:

(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. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to 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.

A survey of foreclosure cases filed across the state reveals that the foreclosure law firms that churn out thousands of poorly drafted lawsuits a day almost never properly identify the capacity of the Plaintiff who brings the action as required by the Florida Rules of Civil Procedure.   This is not just an example of sloppy pleading that courts should look the other way and ignore, it violates the Florida Rules of Civil Procedure and prevents a Plaintiff from availing itself of a fundamental right–the right to know exactly who it is that is bringing suit against her.   When the Plaintiff’s entity status is not pled in the complaint, Defense counsel should file a Motion to Dismiss the Complaint alleging that the Plaintiff has not alleged the facts it needs to invoke the jurisdiction of the court.

There are very few reported Florida cases that are squarely on point and which would convince a judge that   Plaintiff’s poorly drafted complaint should be dismissed, but there are many other cases out there and some very persuasive authority that can be used to have cases dismissed when the entity status is not properly pled. This is fantastic, earth shattering, game changing infomation that I will make available to consumers and foreclosure defense counsel upon request.   Visit my website at for more information.

One Comment

  • Mike Gaydos says:


    I am interested in your examples of Capacity as a defense. Here in Massachusetts the Servicemember’s is done in the Land Court, but the foreclosure is non-judicial.

    My Plantiff is:

    Bank of America, National Association as successor to La Salle Bank NA as trustee for WaMu Mortgage Pass-Through Certificates Series 2007-OA1

    It does not exist in Massachusetts and IRS publication 938 (2007) does not show it. Do you know anything about 938?

    Please respond as I am very interested in the Capacity arguements.

    Mike Gaydos 781 254 1915

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