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).

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» Important Florida Case – one way to get a foreclosure dismissed from War on the Home Front

There is a recent decision out of the Sixth Judicial Circuit in FL (Pinellas County) that I believe warrants focus and analysis for homeowners and their attorneys. In Wachovia Mortgage v. Matacchiero, the Defendant filed a Motion to Dismiss (MTD) the case through her counsel Matt Weidner. The basic premise of the MTD was that the Plaintiff lacked the “capacity to sue” the Defendant for foreclosure under Fla. Civ. Pro., Rule 1.120(a)... Read More

2 Comments

Dave L

said:

I think back at how many times I've enjoyed Jimmy Stewart in "It's a Wonderful Life". Oh, how times have changed! I'm not trying to pick fights with anyone here. I simply enjoy and encourage a lively debate on such an extremely important topic, which like it or not, effects us all. For the sake of disclosure: I am a registered Independent and take the liberty of quoting Senator Dick Durbin (D) IL .... "And the banks -- hard to believe in a time when we're facing a banking crisis that many of the banks created -- are still the most powerful lobby on Capitol Hill. And they frankly own the place."

We all seem to have forgotten that the very words “mort” and “gage” in French mean “death gamble”.

If the borrower died first, the debt is due on death, which is usually what happens.

Once in a while, the lenders all die enmasse, and the borrowers win the “death gamble”. What’s fair for the one is fair for the other. Just let the laws of economics take their course. My personal opinion? Let THEM die!

Please take a look at this link and give your thoughts on how Morgan Stanley (in this example) has been "victimized".

http://market-ticker.org/archives/1749-The-Last-Word-On-Strategic-Defaults.html

Double standard? Will Morgan Stanley receive a 1099-C? A deficiency judgment? Naaah. Probably big fat bonuses for all! Hurray!

I do allow a personal exemption for house-flippers or speculators inspired by greed, I merely desire that honest individuals facing foreclosure realize that more than likely, their "wet-ink" signature on their Promissory Note or Deed of Trust was calculatedly, deliberately, repeatedly, and most eagerly used as a Wall Street instrument to illegally create an enormous amount of (untaxed) wealth at the unjust expense of others.

The spirit of the many powerful Consumer Protection laws, more as a rule rather an exception, has been trampled. Explaining this would require too lengthy a dissertation for this forum. Anyone wishing to learn more...feel free to contact me via this web-site. There are ways to fight back.

For anyone who questions my motives, I DO profit greatly from my efforts ...not monetarily...but in the form of personal satisfaction. I PLEAD everyone to watch this very powerful youtube video as well as the links below.

http://www.youtube.com/watch?v=nZ6lPaiKmwg

http://www.foreclosurehamlet.org/

http://livinglies.wordpress.com/

http://4closurefraud.wordpress.com/

http://www.ireport.com/docs/DOC-367943#

January 10, 2010 3:51 PM

stopGOVTwaste

said:

GREAT COMMENT BY DAVE L... IT MAKES PERFECT SENSE TO ME!

January 21, 2010 11:26 AM