Capacity To Sue

Most defense attorneys and homeowners continue to attack the pretender lenders “standing” to bring suit.  This is a case where the attorney gets proactive and attacks the pretender lender’s “Capacity to Sue”…

17 Fla. L. Weekly Supp. 101a

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-CI-13. December 15, 2009. Anthony Rondolino, Judge. Counsel: Brianna Finch. Matthew Weidner.

ORDER 

THIS MATTER, having come on consideration from the Defendant’s 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 Plaintiff’s 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 pleader’s 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 court’s 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 court’s 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 Defendant’s 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 Plaintiff’s 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 Plaintiff’s 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 Defendant’s 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 Defendant’s 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

9 Comments

  1. Obviously, I like this opinion….great site! Stay tuned, more to come!

  2. I have been fighting a 3rd party bill collector for months. I trust my instincts, he’s a crook and I’ve said as much. People have been taken aback by my labeling him a crook. Not any more!

    I just discovered tonight that he/they have entered a default judgment against me in September when we were set for “trial” in November.

    I had them on the ropes, I said as much in my response to complaint, answers to interrogatories, request for dismissal. So why would I suddenly jump ship and not show up in September if I had been advised to be there? I’ve not missed any prior dates. it would be stupid to go through all this only to just give up just when it appears they have nothing?

    There was a recorder going in the courtroom that would verify the judge telling me (good little lapdog of the Plaintiff Scumsucker Hot Chick) November. He even asked me (what a gentleman) if that date would be okay. I was thinking they were going to buckle and then I find that without a shred of evidence I owe ANYONE anything its set for trial. another trip downtown, another $8 parking charge, yada yada. I stuck it out so why would I bail now?

    All the motions and orders were oral only, at least on the part of plaintiff and the judge. My documents written. But he left no paper trail. Is it his word against mine? Would the court buy the logic of what I’ve said? Has he somehow doctored the file and the evidence? It blows my mind but nothing is impossible anymore.

    Who do I talk to? What can I do.

    The MOST ALARMING THING, this guy is up for re-election in November. He SO DESPERATELY NEEDS TO BE DISBARRED AND THROWN OUT. I’ve yet to find anyone appearing before him who didn’t get a default judgment against them. AMAZING and now I have one too.

    What to do? I have been trying to “chill” lately having just gone around with Bank of America for two years but I cannot let this go by and not just for my sake but for the sake of what little veracity the courts have left.

    • Relaxxxx….you are letting them win…just move to vacate the default and go from there…

      • Well I appreciate your response but here’s the thing: the person who would vacate it would be the same person who initiated it.

        Maybe you don’t understand, everyone seems to think this was a mistake but it wasn’t. I have felt from the very beginning I wasn’t going to get a fair deal but I never thought he would outright lie.

        I have seen one other complaint very similar to mine about this judge and his questionable tactics and tons of stuff about this lawfirm and their client.

        And believe it or not, a large part of the reason I want to DO THIS is because everything points to this being not a new thing for him, I’m sure he’s done it before. What proof do I have? None, but it just seems very strange to me that no one leaves his courtroom with anything but a default judgment.

        I don’t understand what is the matter with people? Even the ones who believe me just shake their head and so oh well that’s the way it is. Too many of us say “oh well”. What it amounts to is, based on comments I’ve seen online, this judge has decided that anyone that comes before him in these cases is a loser who just doesn’t pay their bills and I bet he even thinks he’s a champion of justice for his deceit.

        I’m so sad because this is an insult to me and all the work I put into it. Based on the rules, he should have dismissed it long ago for their failure to state a claim.

        I suppose sooner or later I have to become like everyone else and just not give a damn. I see people do it about all kinds of things. We’re lazy and selfish IMO, and for my viewpoints I usually get labeled a bitch. That’s the way the world is, try to do the right thing and you’re seen as someone who needs to mind their own business.

        And, if he signs this Order to Vacate he is in essence acknowledging he was out of line and why would he do that? It’s hard to get judges, they are presumed always to be of moral character but I don’t know why, they aren’t God, after all, they are flawed human beings who unfortunately have to power to do damage to more than a few people.

        I wonder if Adolph (poor Adolph, will he ever cease being used as the epitome of evil) might have done something wrong at some time and someone thought to take him to task but then they said “no” I’d rather not be bothered.

      • maybe you could tell me what to expect. I did file a motion to vacate the judgment and to strike the robo-signed affidavit which is the only “evidence” in the collection case of mine. In my motion to vacate I said several times that plaintiff’s actions constituted fraud upon the court in that they were meant to mislead and deceive.

        I just found online that now there is an order for hearing in the case. I have no idea what to expect but I figure the judge is certainly not “happy” with me.

        Is there usually an order for hearing after orders like mine? If so what is the probable reason?

        I do not know what to expect but if history is any indicator it will not be good. Incidentally there is currently an order to levy my bank account but its to the wrong bank.

        If you would give me your opinion it would be very much appreciated. Sorry to use this forum to contact me but what else can I do now?

  3. This isn’t your common everyday occurrence I’m talking about. I have proved from the beginning they had no capacity to sue. Over and over I raised it. The judge is not an idiot. He knows they are fishing.

    Your statement :

    ” Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint — Case dismissed without prejudice”

    sounds good but that is exactly what I did to no avail. This judge is not playing by the rules. I filed a Motion to Dimiss based, among other things, on the lack of capacity to sue.

    Its not I don’t appreciate your suggestions but this is not the common “by the book” thing. He arrogantly flaunts the very law he is supposed to uphold.

  4. And so what if the judgment is not vacated. They are going for blood. And now there is a process server coming to my house everyday because they want me to be forced to go to court and tell them what I have so they can take it.

    This is without them ever showing anything until the day of the judgment and that was a hokey affidavit by somebody who used to fix tacos for a living.

    I can’t go down there before that judge because I don’t want to have to sit there and look at him knowing that this whole thing is a lie.

    I ordered a copy of the tape transcript. It’s going to be a couple weeks before I can get it. The Committee on Removal, Retirement and Discipline where I am filing a complaint said they don’t have the money to get the tape for me ($25) so I should get it myself.

    I’m concerned something “might happen” to the tape before I can get a copy.

    No I don’t think I’m being paranoid.

    This reminds me of Dickensian jolly ole England, I figure scrooge will show up next.

    Everything I’ve seen says I have a snowball’s chance in Hades of getting anywhere with this complaint about this judge.

    How can anyone respect a man who lies to you, cheats you out of your right to continue to defend yourself, had no evidence to support a judgment but signed it anyway and now wants to gloat while you lay it on the line what you own.

    Now I know why they make you go through a metal detector to get in the building.

  5. I’m sorry to bug you really. In fact that isn’t my goal. I know this is not directly about my house but who knows later. After finally getting a permanent loan modification order (BOA is nothing if not slow) and deciding to sign it, now nearly two months later I’m waiting for my signed copy and some answers.

    Anyway, mainly I just needed to say something because you know I’m a pariah now. Nope, not paranoid, I’m a realist. No one that I used to talk to online about this financial stuff will acknowledge any contribution I make, I’m a ghost I guess.

    So you don’t have to answer because I know you’re there and I’m here and this isn’t your thing. But thanks for letting me say something in a blog that somebody actually reads. I just needed to say I’m alive.