On December 16, 2009 Pinellas County Circuit Court Judge Anthony Rondolino granted a Motion to Dismiss which was filed by St. Petersburg attorney Matthew D. Weidner on December 16, 2009. The foreclosure case was filed by Wachovia Mortgage against Weidner’s Client, Pinellas County resident Anne Matacchiero.
Weidner’s Motion to Dismiss asserted that because the entity filing the lawsuit was not properly identified as a Florida corporation, that Plaintiff could not continue its pursuit of the case according to Florida states and rules of civil procedure that restrict the activities of out of state corporations.
According to Weidner, the ruling has major impact on foreclosure cases filed across the State of Florida and in Pinellas and Hillsborough County in particular because the Plaintiff’s are not identified as required by law in the vast majority of cases. Weidner further claims that, “If this argument was effectively made and the same ruling issued, it could result in approximately 70% of the cases currently pending in Pinellas County being dismissed.”
Does the Plaintiff have the right to foreclose?
Whether the Plaintiff that has filed foreclosure cases across the country has the capacity or the standing to maintain the lawsuits they’ve filed is increasingly becoming a key issue in many cases. The majority of the loans that are being foreclosed on in courts around the country are no longer held by the bank or mortgage company that made the loan in the first place. When the Plaintiff filing the lawsuit is not the original lender, real questions exist about whether they have the legal authority required to be pursuing the foreclosure case against the homeowner. An even more complicated issue exists when the Plaintiff filing the lawsuit is not a corporation, but is a trust company or some other exotic or shadow entity that claims to be pursuing the foreclosure case on behalf of another entity as is often the case.
Can the Plaintiff produce the documents necessary to foreclose.
Much attention has been given over the last several months to the fact that oftentimes, the Plaintiffs filing foreclosure lawsuits are not able to produce the basic documents they need to file a foreclosure lawsuit, much less all the documents they need to produce in order to win a foreclosure case. Examples of documents that need to be produced include the note, assignment of mortgage and an accurate statement of account. Because many lenders cannot even prove they are qualified or entitled to appear in court, they never get the point of producing the documents necessary to effectively proceed with their foreclosure case.
For more information, contact Matt Weidner at http://www.mattweidnerlaw.com