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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At least FL is a judicial foreclosure state. Michigan’s foreclosures are almost always by advertisement. The owners get a note taked to their door which is a duplicate of what is published in a legal newspaper printed in the county. It announces a ‘sheriff’s sale’ of the home on the court house steps. At the sale the bank bids the mortgage amt and the owners have 6 mos. to redeem the home for the sales price plus costs and attorney fees. If they don’t, they’re thrown out onto the streets. No judge.
I know of one Lee County attorney who failed to show up in court for his client’s motion to dismiss for failure to prosecute within a year after the most recent action. I know of a judge who advised a pro-se foreclosure victim in Lee County rocket docket court to withdraw her motion for dismissal for the same reason.
Both claimed it in the best interest of the foreclosure victim not to dismiss the complaint for lack of prosecution. Why? Because, they reasoned, the plaintiff will just refile the case and the court will order the defendant to pay all the related costs.
I see two major problems with such terrible advice.
1. Florida rules require any second dismissal to occur WITH PREJUDICE. Plaintiffs find it much more difficult to convince a court to reopen a case dismissed with prejudice than without prejudice. Thus, this dismissal for failure to prosecute will set the stage for a subsequent dismissal with prejudice under the two-strikes rule. Nobody can claim that as a disadvantage for the defendant.
2. Judges have no business dispensing legal advice. The Constitution prohibits it, not that many judges care about the constitution’s constraints on their whims.
3. Attorneys owe their clients a vigorous defense using every ethical trick they can muster to the cause. Yes, taking advantage of the two-strikes rule as a strategy DOES constitute a trick. And yes, the client might have to pay higher costs for the second action. But, foreclosure mills make a lot of errors in their prosecution of foreclosure cases, and numerous opportunities exist for a defendant’s attorney to obtain a dismissal, in which case the client might obtain fees and expenses from the plaintiff. Furthermore, many disclosure victims end up in bankruptcy court, and that might wipe out the obligation to pay any plaintiff fees. For all those reasons, I consider it bad advice to encourage a defendant not to move for dismissal for lack of prosecution. And I consider it malpractice to refuse to show up to a related dismissal hearing. In fact, I’d file a bar complaint against an attorney who did that to me.
I advise you not to sue to have the case dismissed
Hello Mr. Stopa,
I have a similiar situation described in your article, almost exactly the same. The Plaintiff (BOA- also original Lender and Mortgagee)filed a Motion for Leave to Amend Complaint, which was granted. The new complaint has the magic phrase in your article alleged by the same law firm.
I have drafted a Motion to Dismiss based on your argument. What has been your success like in Broward regarding this argument?
Thank you for any insight!
Colette,
The rulings on motions to dismiss vary wildly from judge to judge. Depends on the judge.
Good luck
Mark
Form 1.944 also requires that the Plaintiff allege that the mortgage was recorded in a particular OR Book and page in the county where the property is located. I was just retained by a client served with a two count complaint in Miami Dade County to 1. Reform the mortgage (because the legal description attached to the mortgage is wrong) and 2. Foreclose the mortgage;
The problem is that I did a title search and the mortgage was erroneously recorded in another county, NOT Dade County.
Is there any law requiring that the mortgage MUST be recorded in the county where the property is located in order for the lender to foreclose?
Jorge,
Without researching case law, I’d argue the mortgage does not even secure the property if it is not recorded in the county where the property is located.
Mark
And let us not forget that the borrower received no cash or check at the closing table. Furthermore, the title company paid the seller on the lender’s behalf. Also, the mortgage contains this language right at the top:
Therefore, obviously, the “loan I have received” consists of the ESTATE, not MONEY.
Why not propose an exchange of the borrower’s property (the note) for the lender’s property (the estate) IN LIEU of foreclosure?
Then HAMMER the recalcitrant lender with the Trover action.
One more point. I find it astonishing that Florida foreclosure defense attorneys almost universally ignore APPRAISAL FRAUD in the real estate transaction. Of the 7 participants in the transaction, ONLY THE BUYER/BORROWER doesn’t stand to gain from appraisal fraud. By that I mean the seller, real estate agents and brokers, appraiser, mortgage broker, and lender all stand to make ill-gotten gains if they conspire to cheat the buyer by encouraging the seller to overcharge for the property.
Look at the means of appraising and you see clearly the scheme of the scam – appraise only according to market valuation, the price people feel willing to pay. The appraisers seem inclined to ignore both the replacement cost and income capitalization valuation methods. And yet, a rule of thumb will prove the merit of those methods. Look in the paper and MLA records for the rental prices of similar properties. They fall way below the mortgage payment for the loan, meaning the sale price exceeded the amount needed for a mortgage payment that equals the going rental rate. And look at replacement cost for the same dwelling, with adjustment for depreciation due to usage, wear, and aging. You can typically buy an equivalent improved lot and build a new dwelling on it for far less than the selling price.
A competent appraisal company can review the comps to assess market value correlation, adjust for replacement cost, depreciation, and determine income capitalization AT THE TIME of the buyer and seller closed the deal. Almost without doubt, in Florida, you will find appraisal fraud. That, of course, will justify both disgorgement of all funds, return the original situation before the purchase. And let’s not forget treble damages for the fraud, triple the face amount of the purchase price, not merely of the note. Oooh, what a mess that would make all over Florida.
Take note that the lender, a sophisticated investor, has an appraisal department responsible for verifying the property has the value which the third-party attributed to it. If they customarily defraud people by lending excessively high amounts, their appraisal department would surely miss the fraud.
In the end, the conspirators not not only borrower/buyers, but also investors in the mortgage-backed securities. When borrowers fail to make timely payments, the investors have no way of discovering who defaulted and no way, therefore, of obtaining relief and remedy from the defaulters. The PSA operatives and trustees hide this information from them.