Archive for December 22nd, 2011

Applying Recent Case Law in a Motion to Dismiss

I’ve read, discussed (here and here), and enjoyed the recent decisions out of Florida’s Fourth District Court of Appeal emphasizing the need for a plaintiff in a foreclosure case to have standing to foreclose when the lawsuit was initially filed.  Today, I encountered one of my own cases where this argument was particularly appropriate. 

BAC filed suit in December, 2009 and I moved to dismiss for lack of standing.  In October, 2011 the court granted my motion and gave BAC leave to file an Amended Complaint.  In November, 2011, an Amended Complaint was filed, but BAC wasn’t the only Plaintiff – a company called Asset Resolution Corporation was as well.  In support of its alleged standing, ARC attached an Assignment of Mortgage reflecting BAC transferred its interest in the note/mortgage in February, 2011. 

Two things jumped out at me here. 

First, if BAC transferred its interest in February, 2011, why was the BAC attorney telling the Court in October 2011, in opposition to my Motion to Dismiss, that BAC was the proper plaintiff and had standing to foreclose?  This is the slimy, shady, underhanded stuff that drives me nuts. 

Second, the Amended Complaint should be dismissed because ARC did not have standing at the inception of the case.  In fact, its Amended Complaint showed it did not obtain an interest in the Note/Mortgage until 13 months after the lawsuit was first filed (which is why ARC was not named in the original Complaint). 

Anyway, I see this fact-pattern as a really good one, so I filed a fairly comprehensive Motion to Dismiss, citing all of the Florida cases which address the need for a plaintiff to have standing at the inception of the lawsuit and asking the court to dismiss the Amended Complaint without leave to amend. 

It’s not going to happen in every case, but the flurry of recent cases from Florida’s appellate courts are going to make it really difficult for Florida’s trial court judges to deny motions to dismiss in many foreclosure cases.

Mark Stopa

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