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Here is the MOTION TO STRIKE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT that I worte in January 2011

DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND
MOTION TO DISMISS THE CASE

COMES NOW, Defendant Larry R. Bradshaw, (hereafter defendant) pro se, files defendant‘s Motion to Shrike Plaintiff’s Motion for Summary Judgment under Rule 1.150, including attachments and affidavits, as legal nullity, not in compliance with Florida Rules of Judicial Administration § 2.060(d) and (h), and decisional law, and moves the Court to Dismiss the case for lack of capacity, and in support thereof states:
(1). Frances Johnson is an illegal substitute counsel, which makes her Motion for Summary Judgment with affidavits and supporting documents nullities.

Plaintiff’s Motion for Summary Judgment should be struck from the record because it was signed and filed by an attorney who was “not of record” in this case which renders the noncompliant Motion for Summary Judgment, a legal nullity. See Bortz v Bortz, 675 So. 2d 622, 624 (Fla. 1st DCA 1996); Boca Burger, Inc. v. Forum, SC01-1830 (Fla. 2005); Pasco County v. Quail Hollow Props. Inc., 693 So.2d 82 (Fla. 2DCA 1997) Rule 2.060(d) requires every pleading and other paper of a party represented by an attorney to be signed by at least one “attorney of record”. Plaintiff’s Motion for Summary Judgment was signed by attorney Francis Johnson, whether a “substitute” or “additional” attorney, the record is void of any notice of appearance or written notification to the client of the substitution of attorney, or the written consent of the client of the substitution of attorney, or the mandatory court order. See Pasco County v. Quail Hollow Props. Inc., 693 So.2d 82 (Fla. 2 DCA 1997).
(2). Plaintiff lacks “capacity” to maintain the suit, because of its failure to allege facts specific to identify the plaintiff and its relationship to Irwin Mortgage Co., absent a lawful assignment.

Florida Rules of Civil Procedure Rule 1.110(b) requires that a Complaint include a “short plain statement of the grounds upon which the Court’s jurisdiction depends…” Defendant asserts that by failing to plead or specify in what capacity the Plaintiff brings the suit and by failing to define or identify in any way the nature of its entity, or trust relationship, the Plaintiff has not plead that it has the capacity to maintain the suit before this court. “Capacity to sue” is an absence of 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). The only identification of the Plaintiff appears in the caption of the Complaint and the first paragraph where the Plaintiff is identified simply as U.S. Bank National Association, as Trustee for GSMPS 2004-4, 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 GSMPS 2004-4 stands for. Also, a search of the Florida Secretary of State, Division of Corporations, reveal that plaintiff is not listed as having registered to do business in the state of Florida, nor has plaintiff satisfied the “minimum contact” with the forum state.
(3). Plaintiff’s complaint fails to allege admissible evidence, and is supported only by unauthenticated documents and arguments of counsel
The mere filing of the original note after the filing of the initial complaint is not evidence that plaintiff was the holder at the time of the filing of the lawsuit. See Faircloth v. Bliss, 917 So. 2d 1005, 1006-7 (Fla. 4th DCA 2006) (“ Unsworn statements by attorneys are usually not considered as evidence by trial courts unless stipulated to by both parties”); Hitt v. Homes & Land Brokers Inc., 993 So. 2d 1162, 1166 (Fla. 2sn DCA 2008) (Unsworn statements of counsel do not establish facts); Ramunno v. terranova, 963 So. 2d 945 (Fla. 4th DCA 2007) (arguments of counsel and unsworn pleadings from another case do not constitute evidence to support factual findings); Tomo v. Romo, 907 So. 2d 1279, 1284 (Fla. 2d DCA 2005) (unauthenticated documents and arguments of counsel were not evidentiary support for factual finding); Reddick v. Reddick, 728 So. 2d 374 (Fla. 5th DCA 1999) (“In the absence of a stipulation, and subject to the contemporaneous objection rule, an unsworn statement of fact cannot form the basis for making a factual determination”); Procter & Gamble Co. v. Swilly, 462 So. 2d 1188, 1193 (Fla. 1st DCA 1985) (principle is well established in Florida that the unsworn analysis of a party’s attorney is insufficient to satisfy as proof of fact).
In this case, U.S. Bank National Association, as Trustee for GSMPS 2004-4, failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank National Association, as Trustee for GSMPS 2004-4, capacity to foreclose the mortgage at issue. While U.S. Bank National Association, as Trustee for GSMPS 2004-4, alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the complaint lists “Irwin Mortgage Corporation.” As well, a search of the Lee County Records on or about 02/14/2008 (Exhibit A” shows “Irwin Mortgage Corporation" as the Mortgage/Beneficiary. The note filed in the case contains two “pay to the order of stamp” the first appearing to assign the note to Bank United, while the second is blank, Filed with the note is an Allonge which list the name of Washington Mutual Bank, FA successor by merger to Bank United, the date is 10/16/1998. The otherwise blank Allonge appears to be a forgery, when comparing the signature to that of attorney Holland Fintel found on a letter from Echevarria, Codilis & Stawiarshi (now Florida Default Law Group) addressed to defendant dated September 29, 2006, which indicate that Washington Mutual Bank f/k/a Washington Mutual Bank was the servicer, and Washington Mutual Bank F/K/A Washington Mutual Bank, FA Successor by merger to Bank United was the creditor. The Allonge is allegedly signed by C. Fetner as Authorized representative, but the signature is strikingly similar to that of Holland M. Fintel found on various court documents. It must be noted that Florida Default Law Group voluntarily dismissed the previous case Number 07-CA-11562 as alleged in plaintiff’s answer, that case number 07-CA-11562 was withdrawn because of an alleged wrong plaintiff. But, the Allonge recorded (which appears to be a forgery), contains a blank “pay to order” with Washington Mutual Bank FA as the assignor.
(4). Plaintiff has not complied with the lawful requirements of the Federal and State Consumer Protection Laws, and has in fact violated its articles of organization which prohibit the Firm from engaging in the business of debt collection
Plaintiff has failed to comply with the Fair Debt Collection Practices Act in that the demand letter and other debt collection correspondents sent by Florida Default Law Group are a legal nullity because Florida Default Law Group was not authorized by its Articles of Organization to engage in the “debt collection” business. “See Attached Articles of Organization of Florida Default Law Group). Whereas the Firm (Florida Default Law Group) has affirmed to this Court in paragraph 2 and 9 of the Complaint that it has complied with the notice requirements of the FDCPA (Fair Debt Collection Practice Act) 15 U.S.C. § 1602, et seq., as amended, and filed the said notice[s] as an exhibit, knowing the Firm had no legal capacity to engage in the “Debt Collection” business, was not only a fraud on the Court, but also, raises the jurisdictional question of ripeness. This case presents an instance of the doctrinal overlap between standing and ripeness analysis. “Few courts draw meaningful distinctions between the two doctrines; hence, this aspect of justifiability is one of the most confused areas of law.” Wilderness Soc’y v. Alcock, 83 F. 3d 386, 389-90 (11th Cir. 1996). The distinction traditionally made, however, is that standing deals with which party can appropriately bring suit, while ripeness relates to the timing of the suit. See id. at 390. Thus there may be standing without ripeness, as when a party alleges a concrete injury but has not exhausted prescribed administrative remedies, see. E.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S. Ct. 459, 82 L.Ed 638 (1938);… there may also be ripeness without standing when an injury is fully formed but the plaintiff simply asserts the claims of a third parties. See, e.g., Whitmore v Arkansas, 495 U.S. 149, 151, 110 S,Ct 1717, 109 L.Ed 2d 135 (1990).
(5). Violations of the notice requirements for the State and Federal Consumer Protection Laws render the case not ripe for adjudication, and therefore this court is without jurisdiction render a decision

While the facts contained in the Complaint and exhibits are clear that the case is not ripe because the notice requirements of the Fair Debt Collection Practice Act have not been satisfied, the standing inquiry “requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to adjudication of the particular claims asserted. “Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. ed. 2d 556 (1984); See also Socialist Workers Party v. Leahy, 145 F. 3d 1240, 1244 (11th Cir. 1998); Warth v. Seldin, 422 U.S. 490, 518, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (“It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial power.” The Constitutional requirements of standing are that “[1] the plaintiff must have suffered an injury in fact’… [2] there must be a casual connection between the injury and the conduct complained of… and [3] it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L.Ed. 2d 351 (1992). If an action for prospective relief is not ripe because the factual predicate for the injury has not fully materialized, then it generally will not contain a concrete injury requisite for standing. “In the absence of standing, a court is not free to opine in an advisory capacity about the merits of a plaintiffs claims,” and “the court is powerless to continue. Camp Legal Defense Fund, Inc., v City of Atlanta, 451 F. 3d 1257, 1269 (11th Cir. 2006).
(6). Plaintiff has not capacity to sue; as evidence contained in the court record must control over the unverified allegations contained in the complaint
When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss."); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations "have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable"). Because the exhibit to U.S. Bank National Association, as Trustee for GSMPS 2004-4, complaint conflicts with its allegations concerning capacity and the exhibit does not show that U.S. Bank National Association, as Trustee for GSMPS 2004-4, has capacity to foreclose the mortgage, U.S. Bank National Association, as Trustee for GSMPS 2004-4, did not establish its entitlement to foreclose the mortgage as a matter of law.
Moreover, while plaintiff, U.S. Bank National Association, as Trustee for GSMPS 2004-4, subsequently filed the original note, the note did not identify U.S. Bank National Association, as Trustee for GSMPS 2004-4, as the lender or holder. U.S. Bank National Association, as Trustee for GSMPS 2004-4, nor did plaintiff attach any assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage or had legal possession prior to the filing of the suit. Accordingly, the documents before the trial court at the summary judgment hearing will not establish U.S. Bank National Association, as Trustee for GSMPS 2004-4, capacity to foreclose the note and mortgage, and thus, at this point, U.S. Bank National Association, as Trustee for GSMPS 2004-4, is not entitled to summary judgment in its favor. BAC Funding Consortium Inc. ISAOA/ATIMA, 35 Fla. L. Weekly D369 (Fla. 2d DCA Feb. 12, 2010).
RELIEF REQUESTED
Wherefore, plaintiff’s motion for summary judgment is a legal nullity, because it was filed by an attorney not of record, for failure to comply with the rules of court. Plaintiff’s motion for summary judgment should be struck, and because plaintiff has admitted that it did not have possession of the note and mortgage at the time the case was filed, nor has it demonstrated by clear and convincing evidence that it had lawful possession before said note and mortgage was lost or destroyed. Plaintiff has not demonstrated that all notice requirements of the applicable State and Federal Law were satisfied, but did commit a fraud on the court by knowingly violating the articles of organization which prohibit Florida Default Law Group from engaging in business activities other than the practice of law., then asserting in court documents that they were in compliance with the law, knowing they were no. Then uttering what defendant believes is a false document in the allonge, as supporting evidence of their claim. Being this case has been filed on two other occasions and voluntarily dismissed; a dismissal of this case should be with prejudice. This case should be referred to the State or Federal Prosecutors for investigation of false securities and uttering a forged instrument, and any other relief just due and owing.

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Comment by Larry Bradshaw on May 10, 2011 at 12:49pm

Hi Nikki D,

 

You are welcome, and thank you for reading. I have several other pleadings and Motions I have written over the years I will be adding to this blog post as well.

Comment by Nikki D on May 10, 2011 at 11:38am
Sent this to a friend that has a Hollan Fintel, thanks!  This may be of help to him, thanks for sharing!
Comment by Larry Bradshaw on May 10, 2011 at 11:29am
Thank you indi007, I apreciate your input here.
Comment by indio007 on May 10, 2011 at 10:11am

You can add this too against summary judgment based on statements of attorneys.

 

Statements by the plaintiff attorney in brief and argument are not sufficient for summary judgment- Trinsey v. Pagliaro, 229 F. Supp. 647, E.D. Penn, 1964, 

 

"Where there are no depositions,  admissions, or affidavits the court has no facts to rely on 
for a summary  determination." Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F.  Supp. 647.

 

 

A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. SeeTunnell v. Hicks, 574 So.2d 264, 266 (Fla. 1st DCA 1991).

from

Booker v. Sarasota, Inc., 707 So. 2d 886 - Fla: Dist. Court of Appeals, 1st Dist. 1998

 

 

 

This one is from Zoda v. Hedden, 596 So. 2d 1225 - Fla: Dist. Court of Appeals, 2nd Dist. 1992

Florida Rule of Civil Procedure 1.510(e) provides in pertinent part that

[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Mr. Smith did not state the facts upon which his personal knowledge of the transactions was based except for his review of the public records. Also, there were no certified copies of the public records attached to Mr. Smith's affidavit. Authentication of evidence is a condition precedent to its admissibility. § 90,901, Fla. Stat. (1989). Since Mr. Smith is not a custodian of the public records, he is unable to authenticate the documents referred to in his affidavit. Therefore, Mr. Smith is not competent to testify to the matters contained in his affidavit as is required by rule 1.510(e). Moreover, since no copies of the public records were presented to satisfy the hearsay exceptions of sections 90.803(8) and (14), Florida Statutes (1989), his affidavit was based upon hearsay and was incompetent to support summary judgmentSeeTopping v. Hotel George V, 268 So.2d 388 (Fla. 2d DCA 1972) (attorney's affidavit that he was familiar with his client's records and that the records reflected certain information constituted hearsay and could not support summary judgment); see also Crosby v. Paxson Elec. Co.,534 So.2d 787 (Fla. 1st DCA 1988)Thompson v. Citizens Nat. Bank of Leesburg, Florida, 433 So.2d 32 (Fla. 5th DCA 1983). Furthermore, the conclusions of law stated in the affidavit did not satisfy the Peters' burden. See Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 1039, 1041 (Fla. 3d DCA 1981). Since the Peters failed to establish the nonexistence of material issues by competent evidence, Mr. Zoda was not required to come forward with evidence in opposition to the motion for summary judgmentGreer v. Workman, 203 So.2d 665, 667 (Fla. 4th DCA 1967).

We have examined Mr. Zoda's other arguments on appeal and find them to be without merit.

We therefore reverse the final summary judgment quieting title without prejudice to renew the motion upon the presentation to the trial court of competent evidence in support thereof.

Reversed and remanded.

FRANK, A.C.J., and HALL, J., concur.

 


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