You are kind of missing my point. You can file discovery NOW without answering.
On the contrary, I completely picked up what you were laying down. The only point I was pressing was that I felt that I had enough ammo to combat a SJ, and that is exactly why I come to this forum... to hopefully get a different point of view.
After further consideration, I have come to conclusion of proceeding with a MTD and discovery. Why should I be in a hurry to answer? Why should I not avail myself of all available opportunities, as they present themselves, to extend this litigation?
If anyone has the time to preview it, I welcome any and all comments on the MTD I intend to submit in the coming days -->
DEFENDANT XXXX MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION (STANDING) OR ALTERNATIVELY FOR FAILURE TO JOIN AN INDESPENSABLE PARTY
COMES NOW, the defendant XXXX, and pursuant to rule 1.140(b)(1), or alternatively rule 1.140(b)(7), of the Fla.R.Civ.P. and precedent case law files this Motion to Dismiss Plaintiff’s Complaint, and in support thereof states the following:
1. XXXX (hereinafter “XXXX”) filed its Foreclosure of Mortgage Complaint on or about XXXX.
2. On or about XXXX, XXXX apparently transferred all of its interest in the subject note and mortgage to XXXX (hereinafter “XXXX”). See Assignment of Mortgage submitted as Exhibit “A” in Plaintiff’s Motion to Substitute Party Plaintiff filed on or about XXXX.
3. On or about XXXX, XXXX apparently transferred all of its interest in the subject note and mortgage to XXXX. (hereinafter “XXX”). See Assignment of Mortgage submitted as Exhibit “B” in Plaintiff’s Motion to Substitute Party Plaintiff filed on or about XXXX
4. According to public record, on or about XXXX, XXXX transferred all of its interest in the subject note and mortgage to XXXX (hereinafter “XXXX”). See Assignment of Mortgage attached hereto as Exhibit “A”.
5. Inexplicably, on or about XXXX, a motion was made by Plaintiff to substitute XXXX as Plaintiff after XXXX had already transferred all of its interest in the subject note and mortgage to XXXX. The motion was subsequently granted on or about XXXX.
6. No additional motions for substitution have been filed nor has XXXX shown that it is authorized by XXXX to maintain this action.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION
7. Fla.R.Civ.P Rule 1.140(b) states in pertinent part “Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time.” Emphasis added. Fla.R.Civ.P Rule 1.140(h)(2) states in pertinent part: “The defense of lack of jurisdiction of the subject matter may be raised at any time.”
8. Standing is an aspect of subject matter jurisdiction. The Florida Supreme Court stated that the “determination of standing to sue concerns a court's exercise of jurisdiction to hear and decide the cause pled by the parties.” Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So.2d 1350, 1352 (Fla.1993). “Standing has been equated with jurisdiction of the subject matter of litigation and has been held subject to the same rules…” Askew v. Hold the Bulkhead Save Our Bays, Inc., 269 So.2d 696, 698 (Fla. 2d DCA 1972).
9. Standing includes not just the notion that the party has a “sufficient stake” in the outcome of the litigation but also that the party is in fact the “real party in interest.” This is “at least [an] equally-important requirement that the claim be brought by or on behalf of one…‘in whom rests, by substantive law, the claim sought to be enforced.’ The basic purpose of rules requiring that every action be prosecuted by or on behalf of the real party in interest is merely ‘to protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata... .’” Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1183 (Fla. 3d DCA 1985) (citing Author’s Comment to Fla. R. Civ. P. 1.210 and Prevor-Mayorsohn Caribbean, Inc. v. Puerto Rico Marine Management, Inc., 620 F.2d 1, 4 (1st Cir.1980)).
10. If plaintiff is not the real party in interest, it may continue an action only if the requirements of Fla.R.Civ.P. Rule 1.210(a) are met. Fla.R.Civ.P. Rule 1.210(a) states in pertinent part: “a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.” No Florida case holds that a separate entity may maintain suit unless the requirements of Fla.R.Civ.P. Rule 1.210(a) are met. Corcoran v. Brody, 347 So.2d 689 (Fla. 4d DCA 1977).
11. Standing in foreclosure actions. “The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4d DCA 2010). See also Verizzo v. Bank of New York, 28 So. 3d 976, 978 (Fla. 2d DCA 2010) (providing that “there is a genuine issue of material fact as to whether the Bank of New York owns and holds the note and has standing to foreclose the mortgage.”) Emphasis added.
12. Standing must be maintained throughout the life of the lawsuit: “To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant, and that such case or controversy continues from the commencement through the existence of the litigation.” Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374 (Fla. 3d DCA 2006). Emphasis added.
13. XXXX, by virtue of apparently assigning all its interest in the subject note and mortgage to XXXX, can no longer claim ownership and holder status of the subject note and mortgage.
14. Since XXXX seemingly no longer holds or owns the subject note and mortgage, XXXX neither has sufficient stake in the outcome of this litigation nor is it the real party in interest. Thus, XXXX lacks standing to continue this action.
15. XXXX has not stated or shown any relationship between itself and XXXX that would allow it to continue this action under Fla.R.Civ.P. Rule 1.210(a).
MEMORANDUM OF LAW AND ARGUMENT IN SUPPORT OF DEFENDANT’S ALTERNATIVE MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO JOIN AN INDISPENSABLE PARTY
16. Fla.R.Civ.P Rule 1.140(b) states in pertinent part: “Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: …(7) failure to join indispensable parties.A motion making any of these defenses shall be made before pleading if a further pleading is permitted.” Emphasis added.
17. “Florida law defines “indispensable parties” to a lawsuit as “’[p]ersons who have not only an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.’” Glancy v. First Western Bank, 802 So. 2d 498 (Fla. 4d DCA 2001)(quoting Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158, 160 (1854)).
19. Allowing the lawsuit to continue, perhaps to a final judgment of foreclosure in favor of XXXX alone, would fit the very definition of “wholly inconsistent with equity and good conscience" in view of XXXX’s apparent interest in the mortgage.
20. Additionally, “[t]here is perhaps good reason for joinder of all joint obligors or obligees where that is feasible. In either case completeness of judgment and avoidance of unnecessary litigation will be furthered, in the social interest. In the case of joint obligees, their joinder will also protect the defendant from undue harassment. He has incurred only a single obligation and should be sued only once for it.” Phillips v. Choate, 456 So. 2d 556 (Fla. 4d 1984)(quoting James, Necessary and Indispensable Parties, 18 U. of Miami, L.R. 68, 84). Emphasis added.
21. As shown by Phillips, one premise of assuring joinder of all indispensable parties is closely related to that of the same “purpose of [the] rules requiring that every action be prosecuted by or on behalf of the real party in interest…”, which is “merely ‘to protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata... .’” Kumar, paragraph 9, supra. Emphasis added.
22. Clearly, XXXX has a significant interest in the outcome of this action and failure to join them as an indispensable party is would not be in the interest of justice.
WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff’s complaint for lack of subject matter jurisdiction (standing), or alternatively, for failure to join an indispensable party.