& THE BANKSTERS SAY

Foreclosure Case Dismissed in Pinellas County Based on Florida Rule of Civil Procedure 1.120(a)

December 23rd, 2009 – Matt Weidner Law dot com

On December 16, 2009 Pinellas County Circuit Court Judge Anthony Rondolino
granted a Motion to Dismiss which was filed by St. Petersburg attorney
Matthew D. Weidner on December 16, 2009.  The foreclosure case was
filed by Wachovia Mortgage against Weidner’s Client, Pinellas County
resident Anne Matacchiero.

Weidner’s Motion to Dismiss asserted that because the entity filing
the lawsuit was not properly identified as a Florida corporation, that
Plaintiff could not continue its pursuit of the case according to
Florida states and rules of civil procedure that restrict the
activities of out of state corporations.

According to Weidner, the ruling has major impact on foreclosure
cases filed across the State of Florida and in Pinellas and
Hillsborough County in particular because the Plaintiff’s are not
identified as required by law in the vast majority of cases.  Weidner
further claims that, “If this argument was effectively made and the
same ruling issued, it could result in approximately 70% of the cases
currently pending in Pinellas County being dismissed.”

Does the Plaintiff have the right to foreclose?

Whether the Plaintiff that has filed foreclosure cases across the
country has the capacity or the standing to maintain the lawsuits
they’ve filed is increasingly becoming a key issue in many cases.  The
majority of the loans that are being foreclosed on in courts around the
country are no longer held by the bank or mortgage company that made
the loan in the first place.  When the Plaintiff filing the lawsuit is
not the original lender, real questions exist about whether they have
the legal authority required to be pursuing the foreclosure case
against the homeowner.  An even more complicated issue exists when the
Plaintiff filing the lawsuit is not a corporation, but is a trust
company or some other exotic or shadow entity that claims to be
pursuing the foreclosure case on behalf of another entity as is often
the case.

Can the Plaintiff produce the documents necessary to foreclose.

Much attention has been given over the last several months to the
fact that oftentimes, the Plaintiffs filing foreclosure lawsuits are
not able to produce the basic documents they need to file a foreclosure
lawsuit, much less all the documents they need to produce in order to
win a foreclosure case. Examples of documents that need to be produced
include the note, assignment of mortgage and an accurate statement of
account.  Because many lenders cannot even prove they are qualified or
entitled to appear in court, they never get the point of producing the
documents necessary to effectively proceed with their foreclosure case.

************************************************************************************

 

Foreclosure Case Dismissal and Florida’s Cost Bond Statute

December 23rd, 2009 · Matt Weidner Law

If
you have a foreclosure case filed against you, first thing is you
should have a foreclosure defense attorney.  Second thing is your
attorney should be familiar with Florida Statutes, 57.011 Security by
Non-Residents.  A serious problem I’ve had since the begining of the
foreclosure crisis is foreign corporations or exotic non-corporate
entitites like “Deutsche Bank National Trust Company” filing a
foreclosure suit against one of my neighbors.  From a technical legal
perspective there are only a few select entities that have the legal
qualifications to appear before the court. Minor children cannot (only
their parents can on their behalf), Dead people cannot (only a properly
appointed personal representative can), Foreign Corporations cannot
(unless and until they register and get permission from the State of
Florida Division of Corporations).

Florida’s Non-Resident Cost Bond Statute

All of this brings us to Florida Statutes 57.011.  A little known
and not often used nugget that has existed in Florida Laws forever,
hidden like some attorney hunting treasure.  When this law was passed,
the Legislature was concerned about carpet bagger, Yankee corporations
filing suit against Floridians then just walking away.  The statute
requires corporations to post a bond with the court ($100), to cover
the costs of suit against the Floridian if the foreign corporation
subsequently walks away.   Here’s another part I like…..the statute
also provides that a  court….

“may
hold the attorney bringing or prosecuting the action liable for said
costs and if they are adjudged against plaintiff, an execution shall
issue against said attorney.”

Take
that Marshall Watson or David Stern or any of these other attorneys out
there who are improperly taking advantage of Florida citizens.  The
text of the statute can be found here, but if you want to know how to put it to work for you…contact me here at

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