Mortgage who is the mortgagee? Is the mortgagee the Plaintiff? Is the mortgagee a corporation or a trust?

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Timothy Phillips
5 years ago
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2 Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. This entitlement to prosecute a claim in Florida courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et al, 462 So. 2d 1178, (Fla. 3d DCA1985). A plaintiff s lack of standing at the commencement of a case is a fault that cannot be cured by gaining standing after the case has been filed. Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2d DCA 2005). If the party was without standing when the suit was filed then a new lawsuit must be filed. Progressive, 913 So. 2d at 1285 (citing Jeff_Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (finding that "the assignee of a mortgage could not maintain the mortgage foreclosure action because the assignment was dated four months after the action was filed, if the plaintiff wished to proceed on the assignment, it must file a new complaint.") See also, Rule 1.140(h)(2), Fla.R.Civ.P. provides that the defense of lack of jurisdiction of the subject matter may be raised at any time. Maynard v. The Florida Board of Education, 998 So. 2 nd 1201 (Fla. 2nd DCA 2009) (Standing may be raised even after a verdict is entered as long as it is preserved at the trial court). Fla.R.Civ.P Rule1.130(a) mandates that: (a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments. Failure to attach at least a copy of the note is a huge red flag! Mortgage who is the mortgagee? Is the mortgagee the Plaintiff? Is the mortgagee a corporation or a trust? MERS Note who is the note payable to? Not MERS Negotiated/Endorsed/Allonge? Negotiable Instrument? Assignments do not need to be attached, just alleged Also need all of the closing documents from your client and/or the closing agent

3 Closely examine the chain of assignments Make sure they go from A to B to C to D and not A to D Do the assignments match the endorsements? Was in notarized where the assignor is located? Is it back dated? Effective date? Dated before or after the complaint was filed? Is the person signing on behalf of the assignor an employee of the assignor with authority to convey ownership? i.e. is the person a robo-signer? Does the lender listed on the mortgage match the Plaintiff? Assignment Is a note attached, who is the lender? Endorsed? Exhibits attached to a pleading become a part of the pleading for all purposes. If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000) Failure to do required loss mitigation VA, FHA, Fannie/Freddie, HAMP Lack of standing Failure to give notice of assignment Unclean hands Breach of good faith and fair dealing Any affirmative claims you may have

4 Truth in Lending Act (TILA) Real Estate Settlement Procedures Act (RESPA) Limited private rights of action Fair Debt Collection Practices Act (FDCPA) Only if it got the debt in default Florida Consumer Collection Practices Act (FCCPA) Florida Deceptive and Unfair Trade Practices Act (FDUTPA) Banks are exempt Any deceptive or unfair practice Be prepared for a long process Tailor it to your case Judges do not like the boilerplate discovery; much more likely to get what you are asking for if you can show why it is an issue in your case Do interrogatories and requests for production first Confirm with admissions and depositions Expect to do a motion to compel Follow up on discovery in a timely manner; much more likely that judge will give you what you are asking for Start with the corporate rep This person has to come to you Fact witnesses Must travel to these people usually a good investment Signators of the assignments Verifier of the complaint Person who signed the affidavit of indebtedness

5 The Supreme Court required early mediation (RMFM) has proved to be largely ineffective Everyone going through the motions No incentive to settle FHA or VA loans Regular mediation Schedule for a full day Hope that someone with full authority shows up

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA,

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE Plaintiff, Case No.: 07-24338-CACE vs. DIVISION: 02. JAMES