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Can someone lead me in the right direction to file an amended motion to dismiss in Florida?

I just ran into a couple in my area that was served with a foreclosure complaint. They answered by filing a motion to dismiss. But it very short and very sweet. It doesn't go into anything about lack of standing, etc...It's a Deutsche Bank doosy.... I would like to help them out with this. Also, to let you know Deutsche did not respond to their motion to dismiss yet. So I think that there is time to do this.

Any help would greatley appreciated....

cmc
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Sorry guys, I meant to say "How to AMEND a motion to dismiss"

cmc
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Hi Cmc,
I called an attorney and asked him your question, He says that if you filed a Motion to Dismiss and the Plaintiff has not replies and no hearing date set yet, you can absolutely filed Amended Motion to Dismiss.

Look at my thread Tactical Consideration on this Forum for April Charneys two Motions to Dismiss for ideas. Don't forget to have a Court Reporter with you when you go to hearing so you can appeal if necessary. I know some excellent Foreclosure Defense lawyers whose fee are reasonable if you need to. They can help homeowners to even have the mortgage cancelled if there is fraudulent mortgages, note, assignments etc.
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Ann,

Thanks again. I appreciate your help.

No one answered the motion to dismiss. So I guess they are safe for now.

cmc
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Hi,
The party who files any Motion is responsible to set a hearing to have the Motion be heard by the Judge. I think the bank does not have to answer to the Motion to Dismiss. They can go straight ahead to file Motion for Summary Judgment to get the Judgment to sell the house . If it were me, I would also file a Request for Production to put myself in Discovery mode. Judge can't grant Summary Judgment when the defendant is still in discovery. I am not a lawyer, please double check with a lawyer.
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William A. Roper, Jr.

I want to second Ann's suggestion that the defendant get some effective discovery underway.  This would involve not only requests for production, but also well thought out interrogatories and requests for admissions, as well.

Bear in mind that there are specific limitations on discovery and one must take care not to needlessly expend questions.  But if no discovery is propounded at all the defendant might face a determination of the motion to dismiss and/or a plaintiff's summary judgment motion with no valid admissible evidence at all.  Even if one obtains a dismissal due to some defects such as a party's lack of standing, bear in mind that the facts discovered trhough production requests and interrogatories may be helpful in defending against any refiling.  And you would still have another round of discovery available in a rematch to further explore and elaborate the facts.  By contrast, requests for admissions usually only apply to the particular proceeding in which the admission is sought.

Think about what it is that you are hoping to prove and use the discovery to obtain the facts supporting your arguments.

There are instances where you may want to ask questions, await answers and then immediately ask another round of questions rather than asking all questions up front.  This not only avoids unnecessary questions and allows you to focus questions, but also draws out the discovery process, which may be to your advantage as you continue to understand and develop your case.  But you also need to bear in mind that you do not want to overly tax the Court's patience. 

It would be best to obtain the assistance of an experienced attorney in doing this.  If representing oneself pro se, be sure to carefully read the court rules relating to discovery in your jurisdiction.
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The Equitable One
I want to second both Ann and William A's suugestions, and further suggest that the court be made aware that discovery has been propounded and is under way.

In my own case discovery had been propounded and summary judgment was STILL granted to Plaintiff.

The rules in my area request, if not require, that discovery NOT be filed with the court or clerk. This puts the court in the position of being unaware. Something as simple as a "notice" to the court being filed into the record stating that you have propounded discovery upon the adverse party in the form of 6 Admissions, 8 Interrogatories, 4 Requests for Production of Documents (or what have you) will likely suffice.

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I think the Florida Rule states that if Summary Judgment is granted when the party still in discovery is improper and the Judgment can be reversed in Appeal Court if the hearing is documented by a court reporter.  The new Foreclosure Mill tactic is ignoring homeowner motion to Dismiss and discoveries; they file directly their Motion for Summary Judgment. Then Defendant has to file Motion to Oppose Summary Judgment . However, in reviewing court cases, I notice that no matter how good Pro-Se pleadings are, the Judge grants Summary Judgment in favor of the Bank any way. Good lawyer usually is able to have the Motion for Summary Judgment denied and continue the discovery to find grounds to have the lawsuit dismised. If you are served with Motion for Summary Judgment, run - not walk - to a good lawyer or you risk to lose your home . In Dade County we have Dillon Graham esq , in Broward we have Thomas Ice Esq. and in West Coast we have Matt Weidner Esq. They are excellent Foreclosure Defense Lawyers.

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Applying Recent Case Law in a Motion to Dismiss

I’ve read, discussed (here and here), and enjoyed the recent decisions out of Florida’s Fourth District Court of Appeal emphasizing the need for a plaintiff in a foreclosure case to have standing to foreclose when the lawsuit was initially filed. Today, I encountered one of my own cases where this argument was particularly appropriate.

BAC filed suit in December, 2009 and I moved to dismiss for lack of standing. In October, 2011 the court granted my motion and gave BAC leave to file an Amended Complaint. In November, 2011, an Amended Complaint was filed, but BAC wasn’t the only Plaintiff – a company called Asset Resolution Corporation was as well. In support of its alleged standing, ARC attached an Assignment of Mortgage reflecting BAC transferred its interest in the note/mortgage in February, 2011.

Two things jumped out at me here.

First, if BAC transferred its interest in February, 2011, why was the BAC attorney telling the Court in October 2011, in opposition to my Motion to Dismiss, that BAC was the proper plaintiff and had standing to foreclose? This is the slimy, shady, underhanded stuff that drives me nuts.

Second, the Amended Complaint should be dismissed because ARC did not have standing at the inception of the case. In fact, its Amended Complaint showed it did not obtain an interest in the Note/Mortgage until 13 months after the lawsuit was first filed (which is why ARC was not named in the original Complaint).

Anyway, I see this fact-pattern as a really good one, so I filed a fairly comprehensive Motion to Dismiss, citing all of the Florida cases which address the need for a plaintiff to have standing at the inception of the lawsuit and asking the court to dismiss the Amended Complaint without leave to amend.

It’s not going to happen in every case, but the flurry of recent cases from Florida’s appellate courts are going to make it really difficult for Florida’s trial court judges to deny motions to dismiss in many foreclosure cases.

Mark Stopa Esq.

http://www.stayinmyhome.com

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