Procedural Rules Violation Trips Up Foreclosing Lender Lacking Capacity To Sue As Florida Judge Dismisses Action Against Strapped Homeowner

In Pinellas County, Florida, foreclosure defense attorney Matt Weidner blogs:

• 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.(1)

• 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.”

For more, see Foreclosure Case Dismissed in Pinellas County Based on Florida Rule of Civil Procedure 1.120(a).

Thanks to the blogger(s) at Foreclosure Hamlet and Rob Harrington at LoanChex, Inc. for the heads up on these developments.

(1) See Willis & Baruch's Florida Rules Decisions reporter for the following commentary on this case:

• In this Mortgage Foreclosure case, the Defendant/Homeowner prevailed on a Motion to Dismiss based on Rule 1.120(a), Fla. R. Civ. Pro., arguing that the Plaintiff had not adequately plead that it had the capacity to sue.

• "'Capacity to sue' is an absence or legal disability which would deprive a party of the right to come into court." Here, the caption of the Complaint lists the Plaintiff as "Wachovia Mortgage, FSB, F.K.A., World Savings Bank." No further identification of the Plaintiff or explanation of the Plaintiff's capacity to sue is set forth in the Complaint. After the Defendant moved to dismiss the case, the Plaintiff attempted to address the defect in a Response to Defendant's Motion to Dismiss. The Court found that the Plaintiff's response was inadequate as the Complaint itself was still defective and that, by failing to sufficiently identify itself in the Complaint, the Plaintiff effectively denied the Defendant the right to address the Plaintiff's identity in a responsive pleading.

For the court order, see Wachovia Mortgage v. Matacchiero, No. 08-16936 (Fla. 6th Cir. Ct. Dec. 15, 2009).