Foreclosure Defense Florida

Lost Note, the “Missing Paperwork Strategy” and Foreclosure

Hot off the presses is a recent Florida 4th Circuit Court Opinion which dismissed a foreclosure case when the Plaintiff could not substantiate its right to maintain the foreclosure action.   Among other problems with the Plaintiff’s complaint is the fact the note was lost.   If this strategy was pursued aggressively by homeowners in foreclosure, I’d estimate that about 30-40% of the currently-filed cases would be dismissed.   For more information on the opinion, visit my website at www.mattweidnerlaw.com

16 Fla. L. Weekly Supp. 939b

Mortgages — Foreclosure — Plaintiff failed to allege standing where mortgage attached to foreclosure complaint secured interest in name of entity other than plaintiff, thereby conflicting with and cancelling out allegations in complaint that plaintiff owns mortgage — Complaint is also defective for failing to attach promissory note and assignment evidencing plaintiff’s right to enforce promissory note pursuant to mortgage — Complaint dismissed without prejudice

JP MORGAN CHASE BANK, N.A., Plaintiff, vs. SAID Y. HUSSEIN, et al., Defendants. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 2009 CA 05516, Division CV-D. August 4, 2009. Jean M. Johnson, Judge. Counsel: Shapiro & Fishman, LLP, for Plaintiff. Joe Schacter. Christy Greene, for Defendant Said Y. Hussein.

ORDER GRANTING DEFENDANT’S

MOTION TO DISMISS COMPLAINT

THIS CAUSE CAME TO BE HEARD this 10th day of June, 2009, upon the motion of Defendant, Said Y. Hussein, to dismiss the Plaintiff’s complaint. The parties were both represented by counsel. The Court, having heard the argument of counsel, reviewed the record, and been fully advised in the premises, finds as follows:

1. Plaintiff, JP Morgan Chase Bank, N.A., filed the above styled foreclosure action on April 7, 2009.

2. Plaintiff’s composite Exhibit ” A”, attached to the complaint and incorporated therein, includes a photocopy which purports to be a Mortgage dated August 12, 2005 which secures an interest in the real property in favor of Long Beach Mortgage Company, who is not the Plaintiff.

3. No promissory note was attached to Plaintiff’s Complaint.

4. No assignment of the subject mortgage was attached to Plaintiff’s Complaint.

5. Thus, the named grantee in Exhibit ” A” directly conflicts with the Plaintiff’s allegations regarding ownership of the subject Mortgage as set out within the complaint.

6. Inconsistencies between the allegations of material fact within the complaint and the content of the documents attached thereto presents conflict within the complaint itself and a present uncertainty as to the real party in interest to prosecute a foreclosure. As a result of this conflict, the allegations are canceled by the conflicting content of the document. See Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d 1240 (Fla. 2000); Costa Bella Dev. Corp. v. Costa Dev. Corp., 441 So. 2d 1114 (Fla. 3d DCA 1983); Greenwald v. Triple D Props., Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983).

7. In Florida, a party is not entitled to maintain an action to foreclose a mortgage that secures a promissory note unless that party holds the note and owns the mortgage. Your Constr. Ctr., Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975).

8. Due to the conflicting contents of the mortgage attached to the complaint, the Plaintiff’s allegation that it owns the subject mortgage and holds the note is nullified and canceled. As a result, Plaintiff has failed to allege standing to bring this action.

9. Moreover, Fla.R.Civ.P. Rule 1.130(a) states: ” All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.” (Emphasis added)

10. The requirement to attach such documents is mandatory, not discretionary, as illustrated by the application of conventional rule of statutory interpretation. Fla.R.Civ.P. 1.130(a) utilizes the command” shall“rather than the hortatory, or general, ” will” or ” may,” in charging Plaintiff’s to attach all of the document(s) forming the basis of the cause of action to the Complaint.

11. Plaintiff failed to comply with Rule 1.130 which obligates it to attach:

a) a promissory note executed or endorsed in favor of the Plaintiff; or endorsed in blank, and,

b) a document evidencing its right to enforce the promissory note pursuant to a Mortgage on the subject real property.

As a result the complaint is defective and Plaintiff has failed to state a cause of action for foreclosure.

12. The Plaintiff’s foreclosure action should be and is hereby dismissed for Plaintiff’s failure to comply with requirements of Fla.R.Civ.P 1.130(a).

Therefore it is

ORDERED and ADJUDGED:

A. Defendant’s Motion to Dismiss the Plaintiff’s complaint is GRANTED, and

B. Plaintiff’s complaint is hereby dismissed without prejudice.

8 Comments

  • Lisa says:

    I would like to know what happened after the case was dismissed? Does this mean that defendant will now own the home free and clear?

    • admin says:

      No, the home is not free and clear in all these cases where the named Plaintiff cannot prove up their right to proceed with the case, the case gets dismissed, but the mortgage is not eliminated. I know of no actual cases where a judge has removed a mortgage from the property. There is much talk of such things out there, but the reality is that this is not occurring.
      Good luck and please let me know if I can answer any additional questions.
      Where are you writing from?

  • James says:

    This case appears to be a circuit court case, not an appellate court case as indicated above. Therefore it is not binding on other courts. It could, however, be persuasive.

    • admin says:

      Whoopsie, you are absolutely right about my incorrect reference….thank you for pointing that out. You sound like you’re practicing, but regardless thank you. Lots of good circuit cases coming out there, also are you aware of Frost v. Regions Bank? That is a an appellate case and is good!

  • C Roff says:

    Sir,

    Is a contract the is not being followed and not enforced for over 5 years a valid contract in Florida

    thank you

  • Carol says:

    QUESTION: I was no longer living in my house when it was foreclosed on. I received absolutely NO paperwork regarding the foreclosure proceedings afterwards, such as transfer of ownership. My son, whom I had appointed as power of attorney, did not receive any paperwork either. Is this legal? The house is located in Minnesota and the foreclosing bank is in North Dakota.

    Also, the bank required my son to add improvements, such as new carpeting and new kitchen appliances. My son was not able to recapture those costs.

    The bank made a huge sum of money on interest. I received nothing. My son went into large debt trying to get the house to a state that would satisfy the bank. No buyer appeared, so the house was foreclosed.

    What are the requirements for banks that foreclose on personal property?

    • Sorry about what happened to you. You would have to check with an attorney in your state to see what the procedural requirements are. I am disappointed to report that, with a few exceptions, judges are just sort of bending over and giving the banks whatever they want. The courts are ignoring case law, rules, precedent and arguments about the larger good, and are just proceeding.
      Good luck.

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