Hot of the Presses, Failure to Plead Capacity

is Motion to Dismiss in Foreclosure Case

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Hot of the Presses, Failure to Plead Capacity is Motion to Dismiss in Foreclosure Case

Hot of the Presses, Failure to Plead Capacity is Motion to Dismiss in Foreclosure

Case
January 28, 2010
by Matthew D. Weidner, Esq.
Foreclosure Defense Florida
2 Comments
Years ago I filed a lawsuit on behalf of an out of state corporation client. The opposing attorney
filed a motion to dismiss because the corporation I was suing on behalf of was not registered
with the Florida Secretary of State. Fast forward to now when Im building my practice on
defending homeowners in foreclosure and the failure to register motion to dismiss issue is
backin a big way.
Capacity is Almost Never Plead In Foreclosure Cases
I have consistently argued that Florida law and Florida Rules of Civil Procedure require a
plaintiff to be properly identified in order to maintain their lawsuit. Properly identified means in
the body of the complaint the full corporation or entity name is described along with its state or
jurisdiction of registration. (i.e. Bank of America a North Carolina Corporation or Bank of
America a National Association chartered pursuant to the National Banking Act.) In the vast
majority of foreclosure cases filed in this state, the Plaintiff fails to identify who it is, how it is
chartered and how it has the authority to bring the suit. At best, you might find a plaintiff
identified as, U.S. Bank, N.A. What does NA stand for? On a beer bottle it means Non
Alcoholic. (I know this because it is written out.) While Im 100% certain what it means in a
foreclosure case, Im pretty sure it means, National Association. Im also pretty sure that in
some instances when the Plaintiff is US Bank, NA that plaintiff may (emphasis added) be
exempt from some state laws. I say may because Ive actually read the National Banking Act
and Im very clear about the exemption/preemption language in the Act. Some acts of NA
plaintiffs are exempt and some state laws are preempted.but many more (and potentially the
important ones) are not. Taking deposits and collecting money is clearly exempted, but Im not
at all convinced that engaging in trust related activities is. Im also pretty sure that breaking
down doors and unilaterally repossessing a borrowers home without court process is not
preempted by state law either. Anyway, the point is, Plaintiffs must be required to plead out their

capacity at the start of these cases so that a whole range of other issues related to the Plaintiffs
action are on the table from the front end.
Ill follow up more on this case later, but after this Order was issued, the Plaintiff amended their
complaint to add yet a third party into the mixthe mortgage was written by World Savings,
then they assert that World Savings was assumed by Wachovia, but that after they filed Wachovia
was assumed by Wells Fargo.and so now a third party who conceivably has an interest in this
case is being drawn in. Problem is, the version of Wells Fargo they plead in is different than
the evidence they attached to their amended complaint to prove up that Wells Fargo was the
proper party in interestso Ive filed a Second Motion to Dismiss in this case..stay tuned.
The full text of the opinion as published in the Florida Law Weekly is found below: Online
Reference: FLWSUPP 1702MATA
Mortgages Capacity to sue Where plaintiff has failed to plead or specify in what
capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has
not pled capacity to sue Capacity to sue may be raised by motion to dismiss where defect
appears on face of complaint Case dismissed without prejudice WACHOVIA
MORTGAGE, FSB F/K/A WORLD SAVINGS BANK, Plaintiff, v. ANNE MATACCHIERO,
Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 08-16936-CI13. December 15, 2009. Anthony Rondolino, Judge. Counsel: Brianna Finch. Matthew Weidner.
ORDER
THIS MATTER, having come on consideration from the Defendants Motion to Dismiss, filed
by counsel for Defendant Matthew Weidner, this Court having reviewed the pleadings filed in
this matter and accepted argument of counsel who appeared before the Court, it is hereby,
ORDERED AND ADJUDGED that:
1. In its Motion to Dismiss, counsel for Defendant noted that the only identification of the
Plaintiff appears in the caption of the Complaint and the first paragraph where the Plaintiff is
identified simply as, Wachovia Mortgage, FSB, F.K.A., World Savings Bank. The Plaintiffs
name is not set off or specified within the body of the Complaint or in any other pleading nor is
any description provided to explain the legal nature of the entity or to define what the initials
FSB stand for.
2. Counsel for Defendant, in its Supplemental Memoranda in Support of Motion to Dismiss,
cited Florida Rules of Civil Procedure Rule 1.120(a) Pleading Specific Matters which provides
that:
(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of
a party to sue or be sued in a representative capacity, or the legal existence of an organized
association of persons that is made a party, except to the extent required to show the jurisdiction
of the court. . . .When a party desires to raise an issue asto the legal existence of any party, the
capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a
representative capacity, that party shall do so by specific negative averment which shall include
such supporting particulars as are peculiarly within the pleaders knowledge.

3. Counsel for Defendant also cited Florida Rules of Civil Procedure Rule 1.110(b) which
requires that a Complaint include a short and plain statement of the grounds upon which the
courts jurisdiction depends. . . Counsel for Defendant asserted that by failing to plead or
specify in what capacity the Plaintiff brings suit and by failing to define or identify in any way
the nature of its legal entity, the Plaintiff has not plead that it has the capacity to maintain suit
before this Court.
4. Capacity to sue is an absence or legal disability which would deprive a party of the right
to come into court. 59 Am.Jur.2d Parties 31 (1971). This is in contrast to standing which
requires an entity have sufficient interest in the outcome of litigation to warrant the courts
consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla.App. 4
Dist. 1982)
5. Counsel for Plaintiff introduced a Response to Defendants Motion to Dismiss in which it
claimed the Plaintiff was both a Federal Savings Bank and not required to register with the
Secretary of State in order to establish capacity and that it was a foreign corporation and exempt
from registration pursuant to Florida Statute 607.1501. The inconsistent allegations made in
Plaintiffs response are not facts that have been plead and such facts must be plead so that
Defendant may respond to them through a responsive pleading.
6. Counsel for Defendant represented to the Court that his research revealed few Florida Court
opinions which address the issue of capacity to sue, but urged this Court to consider Federal
Court opinions interpreting Federal Rule of Civil Procedure 9(a) from which Florida Rule of
Civil Procedure Rule 1.120(a) is derived.
7. The issue of capacity to sue may be raised by motion to dismiss where the defect appears on
the face of the complaint. Hershel California Fruit Products Co. v. Hunt Foods, 111 F. Supp. 603
(1975), quoting Coburn v. Coleman, 75 F. Supp. 107 (1974); Klebano v. New York Produce
Exchange, 344 F.2d (2nd Cir. 1965).
8. Failure to raise the issue of a Plaintiffs capacity by a specific negative averment has been held
to constitute a waiver of that defense. McDonough Equip. v. Sunset Amoco West, 669 So.2d 300
(Fla.App. 3 Dist. 1996); Plumbers Loc. U.N. 519, Miami Fla. v. Serv. Plbg., 401 F. Supp, 1008
(1975); and see Sun Val. American Land Lease, 927 So.2d 259 (Fla.App. 2 Dist. 2006); Shaw v.
Stutchman, 105 Nev. 128 (1989).
9. The Defendants Motion to Dismiss is GRANTED and the case is dismissed without prejudice
except that the Plaintiff shall have twenty (20) days from the date of this Order to file an
Amended Complaint to address the matters raised within the Defendants Motion to Dismiss. 10.
If the Plaintiff Amends its Complaint the Defendant shall have twenty (20) days from the date of
receipt of Amended Complaint to file its responsive pleading.
Tagged: anne matacchiero, anthony rondolino, capacity, Coburn v. Coleman, Florida rules of
civil procedure 1.120, foreclosure defense, foreclosure pinellas, Hershel California Fruit
Products Co. v. Hunt foods, Klebano v. New York Produce Exchange, matt weidner, mortgage
foreclosure, wachovia mortgage, wells fargo, world savings bank

2 Response Comments

Barbara Stage February 2, 2010 at 9:12 pm

I have been arguing a version of this recently. I ask the mortgage companies to produce
the certificate by the State of Florida where the Declaration of Trust has been registered
with the state pursuant to Fla. St. 609.02. When they cant produce it, I file a motion to
dismiss because they have no standing and they have committed a third degree felony.
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