Florida Rules Decisions: December 2009 Archives

Wachovia Mortgage v. Matacchiero, No. 08-16936 (Fla. 6th Cir. Ct. Dec. 15, 2009)

By Brian Willis on December 29, 2009 8:10 PM | Permalink | Comments (2) | TrackBacks (2)

In this Mortgage Foreclosure case, the Defendant/Homeowner prevailed on a Motion to Dismiss based on Rule 1.120(a), Fla. R. Civ. Pro., arguing that the Plaintiff had not adequately plead that it had the capacity to sue.

"'Capacity to sue' is an absence or legal disability which would deprive a party of the right to come into court." Here, the caption of the Complaint lists the Plaintiff as "Wachovia Mortgage, FSB, F.K.A., World Savings Bank." No further identification of the Plaintiff or explanation of the Plaintiff's capacity to sue is set forth in the Complaint. After the Defendant moved to dismiss the case, the Plaintiff attempted to address the defect in a Response to Defendant's Motion to Dismiss. The Court found that the Plaintiff's response was inadequate as the Complaint itself was still defective and that, by failing to sufficiently identify itself in the Complaint, the Plaintiff effectively denied the Defendant the right to address the Plaintiff's identity in a responsive pleading.

Thanks to Attorney Matt Weidner, who successfully argued the Motion to Dismiss in this case, for submitting this Order for publication. Attorney Weidner's analysis of the impact on foreclosure cases can be found here. If you have a trial court order that addresses a unique procedural issue, we would love to publish it on this website.

Wachovia Mortgage v. Matacchiero, No. 08-16936 (Fla. 6th Cir. Ct. Dec. 15, 2009).

Nine Island Ave. Condo. Assoc., Inc. v. Siegel, 34 Fla. L. Wkly D2501a (3d DCA Dec. 2, 2009)

By Jason Baruch on December 21, 2009 4:20 PM | Permalink | Comments (0) | TrackBacks (0)

In this homeowner association dispute, the association obtained a stay from arbitration and petitioned the circuit court for a temporary injunction seeking access to a unit to make repairs. The court denied the petition because the association had not established an “emergency” basis for relief. The unit owner filed a motion for attorneys’ fees claiming that he was the prevailing party in the action. The trial court granted the motion, but the appellate court reversed because the order was merely interlocutory and “did not end the litigation between the parties.”

Nine Island Avenue Condo. Assoc., Inc. v. Siegel, 34 Fla. L. Weekly D2501a (3d DCA Dec. 2, 2009)

Lincks v. Keenan, 34 Fla. L. Wkly D2346 (Fla. 4th DCA Nov. 25, 2009)

By Brian Willis on December 14, 2009 6:47 PM | Permalink | Comments (0) | TrackBacks (0)

Entry of default constitutes an admission of only the well-pleaded factual allegations in the complaint and a complaint that does not state a cause of action cannot form the basis of a final judgment. As such, the Fourth DCA upheld trial court's decision granting a defendant's Motion to Dismiss for failure to state a cause of action where the defendant already had default entered against it in the case. Citing Days Inns Acquisition Corp. v. Hutchinson, 707 So.2d 747 (Fla. 4th DCA 1997) and GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975).

Lincks v. Keenan, 34 Fla. L. Wkly D2346 (Fla. 4th DCA Nov. 25, 2009)

Judgment and Decrees 2010 Interest Rates

By Brian Willis on December 13, 2009 4:48 PM | Permalink | Comments (0) | TrackBacks (0)

For 2010, Florida Judgments will collect interest at 6% per year or .0001644 per day. The lowest rate since 2003.

Florida Department of Financial Services - Statutory Interest Rates

Williamson v. Bradford, 34 Fla. L. Wkly D2472a (Fla. 1st DCA Nov. 30, 1990)

By Jason Baruch on December 9, 2009 5:41 PM | Permalink | Comments (0) | TrackBacks (0)

In this case, the court entered a partial summary judgment on a counterclaim for monetary damages while the plaintiff’s affirmative claim was still pending. By including the phrase “for which let execution issue” in the judgment, the trial court attempted to permit the defendant to begin collection proceedings. The appellate court held that this was error as a matter of law and reversed, citing Millennium Group I, L.L.C. v. Attorney's Title Ins. Fund, Inc., 847 So. 2d 1115 (Fla. 1st DCA 2003).

Williamson v. Bradford, 34 Fla. L. Wkly D2472a (Fla. 1^st DCA Nov. 30, 1990)

Roth v. Bank of America, 34 Fla. L. Wkly D2383 (Fla. 2d DCA Nov. 18, 2008)

By Brian Willis on December 2, 2009 10:21 PM | Permalink | Comments (0) | TrackBacks (0)

In another foreclosure case gone wrong, which is becoming a trend in the appellate decisions of late, the Second DCA overturns the trial court's entry of Summary Judgment where the hearing transcript "does not reflect that the trial court considred the affidavit of [a third party] that called into question the validity of the note and mortgage."

The decision does not address the trial court's order, but, presumably, the Summmary Judgment Order also did not address the affidavit.

Roth v. Bank of America, 34 Fla. L. Wkly D2383 (Fla. 2d DCA Nov. 18, 2008)

December 2009 Archives

Wachovia Mortgage v. Matacchiero, No. 08-16936 (Fla. 6th Cir. Ct. Dec. 15, 2009)

Nine Island Ave. Condo. Assoc., Inc. v. Siegel, 34 Fla. L. Wkly D2501a (3d DCA Dec. 2, 2009)

Lincks v. Keenan, 34 Fla. L. Wkly D2346 (Fla. 4th DCA Nov. 25, 2009)

Judgment and Decrees 2010 Interest Rates

Williamson v. Bradford, 34 Fla. L. Wkly D2472a (Fla. 1st DCA Nov. 30, 1990)

Roth v. Bank of America, 34 Fla. L. Wkly D2383 (Fla. 2d DCA Nov. 18, 2008)

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