Hot of the Presses, Failure to Plead Capacity is Motion

to Dismiss in Foreclosure Case

January 28th, 2010 · 1 Comment · Foreclosure

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 I’m building
my practice on defending homeowners in foreclosure and the failure to register motion to
dismiss issue is back…in 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 I’m 100% certain what it means in a foreclosure case, I’m pretty
sure it means, “National Association”. I’m 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 I’ve actually read the National Banking Act and I’m 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
I’m not at all convinced that engaging in trust related activities is. I’m also pretty sure
that breaking down doors and unilaterally repossessing a borrower’s 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 Plaintiff’s action are on the table from the front end.

I’ll 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 mix…the 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 interest…so I’ve 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-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.