15 Fla. L. Weekly Supp. 453a
Mortgages -- Foreclosure -- Complaint dismissed for failure to state cause of action -- Only document presented by plaintiff in support of claim that it owns and holds note and mortgage was mortgage payable to another party -- Purported assignment filed in response to motion to dismiss, which did not contain name of assignee or recording information for mortgage, only clouds ownership issue
DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR GOLDMAN SACHS-FFMLT-2004-FF3, Plaintiff, v. SCOTT POPE, et al., Defendants. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2007-CA-008285-XXXX-MA, Division G. March 7, 2008. Lance M. Day, Judge. Counsel: Mark Olivera and Mark S. Kessler, for Plaintiff. Lynn Drysdale, for Mr. Pope.
ORDER GRANTING DEFENDANT, SCOTT POPE'S
MOTION TO DISMISS COMPLAINT
This case came on to be heard on February 11, 2008 on Defendant, Scott Pope's Motion to Dismiss Complaint. The parties were represented by counsel and the Court having heard argument of counsel and reviewed the file and having been sufficiently advised in the premises, finds:
1. On or about September 18, 2007, Plaintiff, Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLT-2004-FF3 filed the above-styled case claiming a default in the mortgage and mortgage note attached to the Complaint.
2. The only documents attached to the Complaint were a letter from the Law Offices of Marshall C. Watson and a Mortgage payable to First Franklin Financial Corporation along with a prepayment rider, a planned unit development rider and an adjustable rate rider. No note was attached to the Complaint.
3. In response to the Defendant's motion to dismiss, Plaintiff filed a Notice of Filing. Attached to the Notice was a Corporate Assignment of Mortgage dated March 4, 2004. This assignment was executed by Steve Barnett, a Vice President of Mortgage Operations of First Franklin Financial Corporation on March 4, 2004. This document does not reflect the recording information for the mortgage purportedly assigned and does not provide the name of an assignee.
4. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent part:
Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. .
5. The only documents presented by the Plaintiff in support of its allegations that it owns and holds the subject note and mortgage do not support this allegation. Plaintiff has failed to provide a copy of the note; and the mortgage attached to the Complaint is payable to a different party. The assignment filed by Plaintiff only acts to cloud the ownership picture further. When exhibits are inconsistent with allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).
6. No Florida case holds that a separate entity can maintain suit on a note payable to another entity unless the requirements of Rule 1.210(a) of the Florida Rules of Civil Procedure and applicable Florida law are met. Corcoran v. Brody, 347 So. 2d 689 (Fla. 4th DCA 1977).
7. Because of the inconsistencies apparent in the documents filed by Plaintiff, this Court said not address the standing issue at this time.
Based upon the foregoing, it is ORDERED and ADJUDGED
A. Defendant's Motion to Dismiss Plaintiff's Complaint is granted for failure to state a cause of action.
B. Plaintiff shall have thirty (30) days from the date of this order to file an amended complaint.
C. Defendant shall have thirty (30) days from the date of service of the Plaintiff's amended complaint to file responsive pleadings.
Posted By George Beckus Esq.
The Golik Law Firm