Florida Rules Decisions: Brian Willis: 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).

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

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)