The amended complaint abandons the original complaint. The case on point is Vereen v. Alpha Realty & Associates, 846 So. 2d 1161 (Fla. 5th DCA 2003).
There may be a contradiction here, though. When the original complaint has a copy of note attached without endorsement, but in the amended complaint a funny endorsement pops up, you can’t refer to the original complaint without endorsement anymore? I believe the concept of departure of pleadings that I wrote about in one of the blogs, overcomes that hurdle.
This is a very interesting case due to the fact that homeowner’s attorney has been using somewhat rare, non-standard arguments. The complaint was filed in April of 2010, and as usual the bank claimed it owned the note. And as is true for every other case, the note attached to the complaint was made to another bank, and it did have an endorsement, but not to the plaintiff bank. In fact, the endorsement was to the now famously bankrupt Lehman Brothers.
Also attached to the complaint was an assignment of mortgage, which deserves special mention. This was an assignment purportedly from MERS as the assignor, having some address in Ocala, FL. Assignments executed by bank officers of the assignee pretending to be officers of MERS are very common. But what was so special about this one was how openly it was done. It actually stated the assignment was prepared by the assignee’s “assignment preparation department”, having address in Nebraska, was executed and notarized in Nebraska as well.
The homeowner, pro se, filed a pretty professionally written motion to dismiss and for more definite statement. The main argument was that the complaint was not sufficiently pled and there was a controversy between the allegations and the attachments. 4 months later his motion was denied. The judge, who denied it, was one of those retired judges, who rarely ever granted a motion to dismiss.
The homeowner hired an attorney who filed answer and affirmative defenses. It contained 6 affirmative defenses:
1) lack of standing and failure to state a cause of action;
2) failure to join an indispensable party;
3) failure to disclose agency authority;
4) negative averment as to capacity;
5) negative averment as to authority, validity and/or authenticity;
6) no right to accelerate and motion to dismiss.
After nothing was happening for a period of 10 and half months, a new law firm filed notice of appearance and started to push the case forward very aggressively. They filed motion for leave to amend complaint, proposed order granting such leave, motion for summary judgment and affidavits in support of the motion. The court issued a memorandum stating that proposed order cannot be entered ex-parte, there should be a hearing.
The defense attorney filed a motion for involuntary dismissal for lack of prosecution for over a year and also stated that the proposed amended complaint where plaintiff was claiming it was actually a servicer, not an owner, and where the note was changed: it now contained 2 new endorsements from Lehman Brothers, was a departure of pleadings. Mazza v. Santoni, 855 So. 2d 710 (Fla. 4th DCA 2003). And that it was an admission that plaintiff did not have standing when the complaint was filed.
At the hearing on the motion for leave to amend and the motion for involuntary dismissal the defense counsel’s argument was well taken, and the judge at some point in time offered to dismiss complaint with prejudice, but he said he could not do it without first granting leave to amend the complaint to be dismissed.
But the defense counsel was opposed to order granting leave. He was mindful of the January 18, 2012 opinion from the 3rd DCA, Bank of New York v. Rogers. The lower court in that case entered an order granting a defense motion for involuntary dismissal and stating it was the result of plaintiff’s failure to establish its status as the owner and holder of the note. But the appellate court reversed, stating the decision was “directly contrary to an earlier, previously unopposed and subsequently unchallenged order, which substituted party plaintiff”. That unopposed order stated the successor was “the real party in interest”.
Then, the judge asked what authority he had not to grant leave to amend. He took the case under advisement, pending briefs on the issue to be submitted by the counsel.