Archive for September 25th, 2010

A simple argument for dismissal – Form 1.944

Form 1.944, Fla.R.Civ.P., contains the elements that the Florida Supreme Court requires in a mortgage foreclosure complaint.  The elements are very simple, yet they’re often not pled properly, creating bona-fide arguments for dismissal.  I’ve argued this successfully on numerous occasions in recent weeks, including this morning before Judge Karla F. Wright in Bartow, so I think it’s time I share. 

Fla.R.Civ.P. Form 1.944 requires the plaintiff to allege it “owns and holds the Note and Mortgage.”  Instead of including this allegation in foreclosure complaints, I regularly see plaintiffs (especially in cases handled by Florida Default Law Group) allege something like this:  “Plaintiff is the holder of the Note and/or is entitled to enforce the Note and Mortgage.”  I haven’t kept track, but I suspect I’ve read more foreclosure complaints with that language than I do with the “owns and holds” language required by the Florida Supreme Court. 

This may sound like a minor difference.  It’s not.  By alleging it is the “holder and/or is entitled to enforce the Note,” the plaintiff is making a much, much broader allegation than the Florida Supreme Court permits.  The key is in the definition of the term “entitled to enforce.” 

Florida Statute 673.3011 sets forth the different ways a plaintiff can be “entitled to enforce” a Note.  As the statute reflects, the plaintiff can be (1) the “holder” of the Note; (2) a nonholder in possession of the Note who has the rights of a holder, or (3) a person entitled to enforce the Note pursuant to Fla. Stat. 673.3091 or 673.4181(4). 

Hence, when a plaintiff alleges it is the “holder and/or entitled to enforce the Note” (instead of alleging it “owns and holds” the Note), this begs the question – is the Plaintiff the holder?  A nonholder in possession with the rights of the holder?  Entitled to enforce pursuant to Fla. Stat. 673.3091?  Entitled to enforce pursuant to Fla. Stat. 673.4181(4)?  The way many plaintiffs are pleading it, the Complaint isn’t clear, so a Defendant cannot tell.  (For that matter, the Court can’t tell, either.)  In my view, that’s not just a technical oversight – it’s unduly prejudicial to the Defendant.  And that’s precisely what I tell judges when I argue it.  

“Judge, if you don’t dismiss the Complaint, and force the Plaintiff to allege the basis in which it is entitled to enforce the Note, the grounds for its standing will become a moving target as this case proceeds forward.  I’ve seen it happen before.  We prove the Plaintiff is not the holder, so the Plaintiff tries to say it’s a nonholder.  My client shouldn’t be made to guess the grounds for the plaintiff’s standing to sue.  As this case goes forward towards trial, there shouldn’t be any ambiguity if the Plaintiff alleges itself to be the holder, a nonholder in possession with the rights of the holder, or something else.  Avoiding this uncertainty is why the Florida Supreme Court created Form 1.944. ” 

Like anything else in foreclosure defense, this argument isn’t always going to work.  That said, many judges have agreed with it (appropriately so, in my view) in recent weeks. As I see it, this is a perfectly legitimate basis in which to seek dismissal of a foreclosure complaint. 

(As an aside, the reason the foreclosure mills plead it this way is obvious to me.  They don’t want to take the time to figure out if the plaintiff is the holder, a nonholder in possession with the rights of a holder, or something else, so they bring this broad allegation of “entitled to enforce,” copying that onto every foreclosure complaint.  Essentially, they’re admitting “We aren’t sure of the basis of our standing to foreclose, so we’re going to allege it as broadly as possible and figure it out later.”  Consider this yet another example of sloppiness by the foreclosure mills.)

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