…And Is Not Entitled To Foreclosure Judgment!
Plaintiff’s complaint fails to state a cause of action
The use of the conjunctive and disjunctive “and/or” is a legal nullity and therefore it is an error to deny a defendant’s motion to dismiss for failure to state a cause of action when a complaint pleads same. Health Clubs, Inc. v. State ex rel. Eagan, 338 So. 2d 1324, 1326-27 (Fla. 4th DCA 1976).
In Schopler v. Smilovits, 689 So. 2d 1189 (Fla. 4th DCA 1997) the Court held
Rule 1.140(b)(6) authorizes the motion to dismiss for failure to state a cause of action. Rule 1.140(h)(2), expressly permits the opponent of a claim to wait until trial to move for dismissal on the grounds that the claim has been defectively pleaded. Contrary to the trial court’s ruling, there is nothing in the rule that requires the motion to be made at the commencement of trial and before the presentation of any evidence. We are unable to agree that we should read such a requirement into the rule. Although it might seem “efficient” and ostensibly “just” in the eyes of the claimant for the opponent to make the motion earlier rather than later, these considerations are hardly dispositive. There is the defendant’s equal right to efficiency and justice.
Furthermore, “waiting until the close of all the evidence and the argument on motions to dismiss and for directed verdict is too late for a claimant to request that the pleadings be conformed to the evidence.” Id. at 1190. Bold emphasis added. See also Arky, Freed v. Bowmar Instrument Corporation, 537 So. 2d 561, 563 (Fla. 1988) (finding that “Had Arky, Freed waited to object until the presentation of evidence and then moved for a directed verdict, Bowmar would not have been entitled to amend its pleadings and start the case anew.”).
Here, Plaintiff’s complaint fails to state a cause of action because it uses the conjunctive and disjunctive “and/or” when pleading its standing to sue. Under Fla. R. Civ. P. 1.140(b)(6), this requires dismissal of the pleading, which pursuant to Rule 1.140(h)(2), can be made at trial.
Further, because Defendant has not tried anything by implicit and explicit consent, and because the evidence has now been closed, it is too late for the Court to permit an amendment to conform the pleadings to the evidence.
Therefore, Plaintiff’s complaint should be dismissed.
despite extensive discovery from defendant and even after trial, Plaintiff has failed and refuses to prove it has standing or authority to sue
“[A] servicer may be considered a party in interest to commence legal action as long as [its principal] joins or ratifies its action.” Elston/Leetsdale v. CWCapital Asset Management, 87 So. 3d 14, 17 (Fla. 4th DCA 2012) (reversing non-final order requiring borrower to make mortgage payments to the servicer where the servicer purported to establish its standing to sue through nothing more than its own statements and allegations).
However, “[a]gency may not be proved by a declaration of the putative agent in the absence of the principal.” Stadley v. White, 328 So. 2d 68, 69-70 (Fla. 1st DCA 1976). See also Merriman Investments, LLC v. Ujowundu, 123 So. 3d 1191, 1194 (Fla. 3d DCA 2014) (error to dissolve writ of garnishment where garnishee failed to offer any proof other than her own statements to prove agency relationship between herself and her alleged principal); Stalley v. Transitional Hospitals Corporation of Tampa, Inc., 44 So. 3d 627 (Fla. 2d DCA 2010) (trial court erred in finding that decedent’s wife had the authority to bind him to an arbitration agreement where wife presented no evidence of an actual or apparent agency relationship to do so); Aerovias Panama, S.A. v. Air Carrier Engine Service, Inc., 195 So. 2d 230, 231 (Fla. 3d DCA 1967) (“the burden of proving the issue of agency cannot be successfully met by proving extra judicial declarations of the alleged agent not made in the presence of the alleged principal.”); City National Bank of Detroit v. Basic Food Industries, Inc., 520 F. 2d 336, 338 (5th Cir. 1975) (“Florida follows the generally accepted rule that the fact of an agency cannot be established by hearsay statements of a putative agent.”).
