Foreclosure Defense Florida

Judge- Just Who are You Granting Foreclosure To?

An issue I’ve been fighting in court long before the foreclosure crisis began is the issue of “Capacity”, which in layman’s terms means, tell me who this Plaintiff that is suing my client is so that I can first determine if they have the legal ability to sue my client. Then we’ll get to work on determining whether they in fact have the right to collect anything from my client. (Despite what the paperhangers and robosigners have produced, these plaintiffs have no clear right to foreclose.)

It’s an amazing thing that in the vast majority of foreclosure cases, no-one has any idea who the plaintiff suing the homeowner is.   Not the Plaintiff’s attorney, not the homeowner, not the defense attorney and unfortunately, not even the judge.   I say no one has any idea because capacity is not even plead or alleged in the complaint…it’s just not part of their word processor program it they apparently don’t want to go through the effort to plead it.   You see, basic rules of legal pleading require the parties in a lawsuit to be properly identified so we know exactly who is before the court.   Correct pleading would look something like this:

“Plaintiff XYZ Bank is a Federal Bank Chartered under the National Banking Act with it’s principal place of business in Des Moines, Iowa.”

Problem is you’ll never see this proper pleading in the typical foreclosure mill complaint….as a result it is not at all clear who the Plaintiff is in the litigation…and therefore it is not clear that the Plaintiff has even properly invoked the jurisdiction of the court.   There are a whole range of other issues that flow from this…such as the cases where the Plaintiff makes an ex-parte motion to substitute party plaintiff, or when the certificate of title is assigned or substituted for another party.   All of this is totally improper but it goes on all the time.. Some judges get it, (see my published case from Pinellas County Judge Anthony Rondolino, Wachovia v. Matacherro) where the judge required that the plaintiff properly identify themselves as a condition of proceeding with the case.

The unregulated, unregistered, unknown shadow entities that are filing foreclosures across the country (i.e. Deutsche Bank as Trustee for the IXIS trust) raise real questions that must be answered….who are they?   Where are the registered?   Who are the real parties in interest?   Other questions that flow from these questions is why the judges, Florida Attorney General, Florida’s Chief Financial Officer and Florida Governor (and their counterparts in every state) are allowing unregistered, unregulated, unknown entities take title to bajillions of dollars worth of property in this state without even bothering to give us an address to send their checks to….think about it…we don’t even have a proper address to mail them a thank you letter.

If we’ve learned anything about the collapse of the economy and issues like the Bernie Madoff scandal, the power players play by an entirely different set of rules and our government institutions and leaders lack the will to challenge their power. There is something terribly amiss when judges are taking their neighbors homes and with a stroke of a judicial pen granting it to some shadow entity that no-one can identify and who were not sure plays by any sort of rules.   Another practical consideration is, as a title attorney, the properties that are taken back through foreclosure cannot be properly conveyed without proper identification of the trust that purported to own it….at the time of filing the complaint.

There are two recent Supreme Court cases that address some of the issues surrounding capacity, (Watters v. Wachovia and Cuomo v. Clearinghouse) but the following links take you to sites that offers a complex explanation of why these cases and why capacity is so important….read on and here

One Comment

  • divemedic says:

    Exactly. I am a pro se defendant in a foreclosure, and just filed a motion to dismiss because I am being foreclosed on by my former lender who sold the note to Federal National Mortgage Association.

    The complaint states that Federal National Mortgage Association owns the note, but has given my former lender (who is now the servicer) authorization to file the action.

    A mortgage but no note is attached to the complaint, the complaint is unverified, and there is no statement of who “Federal National Mortgage Association” is, how they came to be the owner of the note, or a copy of the authorization for the lender.

    How many errors can one complaint contain?

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