IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PASCO COUNTY, FLORIDA CIVIL DIVISION SAXON MORTGAGE SERVICES, INC., CASE NO. 2009-CA-002709-ES, PLAINTIFF, % BREGINIA DARLENE JORDAN AND MICHAEL ANTHONY JORDAN, DEFENDANTS. / DEFENDANTS’ MOTION FOR REHEARING/MOTION FOR RECONSIDERATION COMES NOW, the Defendants BREGINIA DARLENE JORDAN and MICHAEL ANTHONY JORDAN (hereinafter “Defendants”), by and through undersigned counsel, and respectfully files with this Court Defendants’ MOTION FOR RECONSIDERATION, pursuant to Rules 1.530, 1.510, and 1.210(a), Fla. R. Civ. Pro., precedent case law, and this Court's inherent authority to control its own interlocutory orders prior to final judgment, and as grounds thereof states: FACTS 1. This is an action for foreclosure of residential real property owned by the Defendants. 2. The named Plaintiff in this case is SAXON MORTGAGE SERVICES, INC. (hereinafter “Plaintiff”). ‘The Plaintiff initiated this action when it filed its complaint on or about March 20, 2009. 3. On February 15, 2011 a hearing on the Plaintiff's Motion for Summary Judgment was held before Senior Judge Wayne L. Cobb. According to the transcript, the hearing lasting fortwelve minutes, from 9:00 a.m. until 9:12 am. A copy of the transcript is attached hereto and incorporated as Exhibit “A”. 4, In addition to the oral argument presented by the Defendants’ counsel at the February 15" hearing, the Defendants had also previously filed a written Objection to Summary Judgment. A copy of the Defendants’ Objection to Summary Judgment is attached hereto and incorporated as Exhibit “B”. 5. While Judge Cobb ultimately ruled in favor of the Plaintiff at the February 15 hearing, the Defendants respectfully assert that his decision was in error and, therefore, this Motion for Rehearing/Motion for Reconsideration follows. ‘The facts regarding each error are explained in detail below. Error I — Failure to Consider Improper Party Substitution 6. At the February 15" hearing, the Defendants’ counsel objected to an entry of summary judgment in favor of the Plaintiff based upon an improper party substitution. See Transcript, pes. 9-11. Specifically, the original party-plaintiff to the instant lawsuit was TAYLOR, BEAN & WHITAKER MORTGAGE CORP. (hereinafter “Taylor, Bean & Whitaker”). 7. The docket reveals that January 11, 2010 the Plaintiff filed a Motion to Substitute Party Plaintiff. Additionally, the docket reveals that on that same day an Order granting the Plaintifi’s motion was also entered. Therefore, no notice of hearing was ever served and no hearing was ever held on the P! Motion to Substitute. 8. The Defendants’ counsel asserted at the February 15" hearing that the failure of the Plaintiff to serve a notice of hearing along with its Motion to Substitute was a fatal error because it violated the explicit procedural guidelines of Fla. R. Civ. Pro. 1.260.9. Therefore, because the Plaintiff was never properly substituted into this action, it was improper for the Court to grant summary judgment in favor of that purported plaintiff. Error Il - Failure to Consider Affirmative Defenses 10. The Defendants’ counsel also asserted at the summary judgment hearing that the Defendants had served Affirmative Defenses on the Plaintiff which the Plaintiff never factually disputed or showed to be legally insufficient. See Transcript, pgs. 11-12. 11, More exactly, the Defendants eleven (11) Affirmative Defenses with this Court which included such defenses as: (1) lack of capacity; (2) lack of standing; (3) unclean hands; (4) lack of notice and ability to cure; and (5) failure to show real party in interest. 12. While the Plaintiff filed a purported Reply to the Defendants’ Affirmative Defenses, this Reply was nothing more than a general denial of the Defendants’ Affirmative Defenses and the statement that same amounted to nothing more than legal conclusions. However, the Plaintiff failed to show, in any way, how the Defendants’ allegations in their Affirmative Defenses amounted to mere legal conclusions. 13. Therefore, because the Plaintiff failed to factually refute the Defendants’ Affirmative Defenses or show how they were legally insufficient, it was an error for the Court to grant summary judgment to the Plaintiff. Error III - Granting Summary Judgment where Capacity Had Not been Proven 14, Moreover the Defendants’ counsel also objected to the Plaintiff's ability to procure a summary judgment ruling based on its lack of capacity to sue, even going so far as to state that capacity had been pled as an affirmative defense. See Transcript, pgs. 12-13. 15. The Plaintiff's lack of capacity is embodied in the fact that while the name of the Plaintiff of the instant lawsuit is asserted in the caption of its Complaint, nowhere in the body ofPlaintiff's Complaint does the Plaintiff set off or describe in any way its entity-status nor does the Plaintiff assert in what capacity does the Plaintiff contends it may avail itself to the jurisdiction of this Court. 16. Additionally, nowhere in the body of Plaintiff's Complaint, or in any other pleading, motion, document, or affidavit, does it assert the basis for its entity-existence or explain in any way the form of the entity that presents itself before the court. 17. Additionally, and as brought to the Court’s attention by the Defendants’ counsel, a 18. Therefore, because the Plaintiff had adequately proved it had capacity to sue, and because the issue of capacity was put into play in the Defendants’ Affirmative Defenses, the Court erred in granting summary judgment to the Plaintiff. Error IV - Consideration of Hearsay Affidavit over Objection 19. Despite the fact that the Court refused to allow the Defendants’ counsel to review this, the Court also erred by allowing a hearsay affidavit to be admitted into evidence. See ‘Transcript, pgs. 14-15. 20. The Defendants specifically objected to the introduction of the Affidavit because, upon information and belief: (1) the Affidavit fails to provide, with any degree of specificity, how the Affiant has any personal knowledge of the facts contained therein; (2) that because the Affiant lacks personal knowledge of the facts stated in the Affidavit, the Affidavit is entirely based upon. hearsay statements; (3) that the Affiant has failed to aver that she is the custodian of certain records which the Affidavit was based upon; (4) that the Affiant’s failure to aver that she is the custodian of those records prohibits the Plaintiff from asserting that (a) the business recordshearsay exception applies, and (b) that the purported records referred to in the Affidavit have been authenticated; and (5) that the Affiant’s failure to attach the purported records referred to in her Affidavit is a violation of Fla. R. Civ. Pro. 1.510(e). 21. Therefore, because the only piece of evidence offered by the Plaintiff in support of its contention that it is entitled to judgment as a matter of law was inadmissible, summary judgment at this stage should not have been entered. Error V — Improper Introduction of the Original Note into Evidence 22. Finally, despite Defendants’ counsel repeated objections over the Court’s consideration and introduction of the purported original note, the Court improperly accepted same even though the Plaintiff's Complaint pled that the subject note had been lost, stolen, or destroyed. See Transcript, pgs. 15-16. 23. The Court refused to show the Defendant what note was being accepted to prove the Plaintiff's case; consequently, the Defendant has no knowledge of what evidence was used against them. 24, Additionally, the Plaintiff failed to amend its Complaint to drop the reestablishment count. 25. Even more astonishing, the docket reveals that the Plaintiff has apparently filed an affidavit on or about June 30, 2009 which avers that the subject note had been lost, stolen, or destroyed. 26. Therefore, because the Plaintif's Complaint was never amended to drop the reestablishment count, the Plaintiff was required to prove at summary judgment that there existed no genuine issue of material fact that the original note had been lost, stolen, or destroyed.Consequently, the admission into evidence of the purported original note was a repugnancy to ‘this material allegation. STANDARD OF REVIEW 27. Fla. R. Civ. Pro, 1.530(a) provides, in pertinent part, that “[o]n a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.” 28. As the Florida Supreme Court articulated in the subliminal case of Holl v. Talcott, 191 So. 2d 40, 46-47 (Fla, 1966). The granting or denial of rehearing is a matter within the sound discretion of the trial court, but it is never an arbitrary discretion. As indicated above, when the motion is filed by one against whom a summary judgment has been entered, the discretion not to grant is narrowed and every disposition should be indulged in favor of granting the motion. Only after it has been conclusively shown that the mov. inst cannot offer proof to support his sition on the genuine and material issues in the cause should his right to trial be foreclosed. Emphasis added and citations omitted 29, Rather than constituting a motion for rehearing under Fla. R. Civ. Pro. 1.530, a motion directed to a nonfinal order is termed a “Motion for Reconsideration” based upon the trial court’s inherent authority to reconsider and alter or retract orders prior to the entry of final judgment. See Better v. City of Miami, 510 So, 2d 1242, 1242-43 (So. 3d DCA 1987). 30. According to Trawick, a trial court has the inherent authority to reconsider its orders prior to rendition of the final judgment. H. Trawick, Trawick's Florida Practice and Procedure § 9-2 (1985 ed.) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION L As a threshold matter, because there existed genuine issues of material fact, summary judgment was improperly granted to the Plaintiff‘a, Legal Standards 31. Under Florida law, summary judgment is proper if, and only if, based on an examination of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See The Florida Bar v, Green, 926 So. 2d 1195, 1200 (Fla. 2006); Volusia County v. Aberdeen at Ormond Beach, L-P.,. 760 So. 2d 126, 130 (Fla. 2000). 32. Furthermore, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, a Court may grant summary judgment if, and only if, “the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). 33. The Court must take all the facts that the non-movant states as true and must draw all reasonable inferences in favor of the non-moving party. See Bradford v. Bernstein, 510 So.2d 1204 (Fla, 24 DCA 1987); Petruska v. Smartparks-Silver Springs, Ine., 914 0.2 502 Fla. Sth DCA 2005). 34. Finally, in Tamm v. Bradley, 696 So. 2d 816, 817 (Fla. 2d DCA 1997), the Second District was expressly clear that “[ilf the record reflects the existence of any genuine issue of material fact, or the possibility of an issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Bold emphasis added. b. Argument 35. Asa preliminary matter, because there existed in the record disputed issues of material of fact, summary judgment should never have been granted.36. Specifically, and at a minimum, the Defendants’ Affirmative Defenses and Objection to Summary Judgment put into play such issues as: (1) the Plaintiff's lack of standing; (2) the Plaintiff's lack of capacity; and (3) the lack of notice and opportunity to cure, 37. Additionally, the Defendants’ counsel made numerous objections at the February 15" hearing 38. Therefore, because the record “gave even the slightest doubt” that issues of material fact existed in this case, the Plaintiff should have been precluded from an award of summary judgment. Il. The Plaintiff's Motion for Summary Judgment should have been denied because the Ex-Parte Order granting its Motion to Substitute Party Plaintiff was improperly entered a. Legal Standards 39, Fla. R. Civ. Pro. 1.260(c) provides, in pertinent part, that “in the case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.” 40. However, Rule 1.260(c) concludes with the following: “[s}ervice of the motion shall be made as provided in subdivision (a) of this rule.” 41. With respect to service, subdivision (a) of Rule 1.260 provides that “[t]he motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons.” (Emphasis added).42. Florida law “clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice...to allow a court to rule on a matter without proper pleadings and notice is violative of a party's due process rights.” Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244 (Fla. 2008) (quoting Carroll & Assocs., P.A., v. Galindo, 864 So. 2d 24 (Fla. 3d DCA 2003)). 43. In Tinsley v. Mangonia, 937 So. 2d 178 (Fla. 4th DCA 2006), the original plaintiff, Vikar, attempted to substitute Tinsley in as plaintiff to a mortgage foreclosure; however, the ‘motion was never set for hearing. The action was later dismissed and the defendant moved for attorney’s fees against Vikar, the original plaintiff, and Tinsley, the “substituted” plaintiff. On appeal, Tinsley argued that he was never substituted as plaintiff and therefore not subject to the judgment or liability, The Fourth District agreed with Tinsley’s argument, stating, in relevant art “{blecause no party obtained a court substituting Tinsely for Vikar, Vikar, as the rule permits, remained as the party pursuing the action, and the court was without jurisdiction to award fees or costs against Tinsley, a non-party.” Id. at 180. (Emphasis added). 44. The major point derived from Tinsely is that not only is an order substituting a party in as plaintiff necessary, this order must be obtained as the rule permits and the plain language of the Rule requires that there be a motion, notice of hearing, and then a subsequent order. Bb. Argument 45. Here, the Plaintiff's Motion for Summary Judgment should have been denied because any order granting relief to the “substituted” is a nullity and thus a reversible error.46. Specifically, the Plaintiff's Motion to Substitute Party Plaintiff did not follow the strict procedural guidelines of Rule 1.260(c) in that no notice of hearing was served along with the motion. 47. Therefore, the order substituting party plaintiff is void as this Court never obtained jurisdiction over the “substituted” party. See Ostoski v. Cianfrogna, 789 So. 2d 529 (Fla. Sth DCA 2001) (providing that “a trial court has absolutely no authority to order any non-party, over ‘whom it has no in personam jurisdiction, to become a party plaintiff.”) 48. Because the Court never obtained jurisdiction over the Plaintiff, it had no ability to render a judgment either for or against it. As a result, the Court erred in granting summary judgment in favor of the Plaintiff. If. The Plaintiff's Motion for Summary Judgment should have been denied because the Plaintiff failed to adequately respond to the Defendants’ Affirmative Defense a. Legal Standard 49. A party seeking summary judgment must not only show that there is no genuine issues of ‘material fact, but must also factually refute any affirmative defenses or show that they are legally insufficient. See Morroni v. Household Fin. Corp. Ill, 903 So. 2 311, 312 (Fla. 2d DCA 2005); Jones v. City of Winter Haven, 870 So. 2d 52, 55 (Fla. 2d DCA 2003). See also Lazuran v. Citimortgage, Inc., 4D09-1340 (Fla. 4th DCA 2010) (holding that the trial court’s grant of summary judgment improper where the plaintiff failed to refute an affirmative defense); Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009) (holding that because the Plaintiff did not ‘meet its burden to refute the Defendant’s affirmative defense of lack of notice and opportunity to cure defense, the bank is not entitled to final summary judgment of foreclosure). B. Argument50, Here, the Plaintiff's Motion for Summary Judgment should have been denied because the Plaintiff to factually refute any of the Defendants’ Affirmative Defenses or show how they were legally insufficient. 51. In fact, during the February 15" hearing the Defendants’ counsel made specific reference to Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009), cited supra, a case which was factually on-point with Defendants’ Affirmative Defense X, which pled that the Plaintiff failed to provide the Defendants with the pre-suit notice required in the mortgage. See Transcript, pg. 12. 52. Therefore, it was an error to award summary judgment in favor of the Plaintiff. y IV. The Plaintiff's cause must be dismissed because of its failure to plead capacity to maintain the instant litigation a. Legal Standards 53. “Unlike the pleading requirements in the federal courts where notice pleading is the prevailing standard, the Florida Rules of Civil Procedure require fact pleading.” Ranger Contru. xv. Martin Cos., 881 So. 2d 677, 680 (Fla. Sth DCA 2004). 54. “In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Med. & Benefits Plan v. Lago, 867 So. 2d 1184 Fla. Sth DCA 2004), 55. “At the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared.” Horowitz v. Laske, 855 So. 2d 169, 173 (Fla. Sth DCA 2003) (citing Arky, Freed, Steams, Watson, Greer Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988).56. Fla. R. Civ. Pro. 1.120(a) provides that [ijt is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. Bold emphasis added. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to the legal existence of any pat the capacity of any party to sue or be sued, or the authority of a arty to sue or be sued in a e capacity, that party shall do 50 specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge. Bold emphasis added. 57. Fla. R. Civ. Pro. 1.110(b) requires that a complaint include a “short and plain statement of the grounds upon which the Court’s jurisdiction depends.” 58. “Capacity to sue” is an absence of legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties § 31 (1971). This is in contrast to “standing” which requires an entity have sufficient interest in the outcome of litigation to warrant the court's consideration of its position. Keehn v. Joseph C, Mackey and Co., 420 So.2d 398 (Fla. 4th DCA 1982). 59. The issue of capacity to sue may be raised by motion to dismiss where the defect appears on the face of the complaint. See Hershel ia Fruit Products Co, v. Hunt Foods, 111 F. Supp. 603 (1975), quoting Coburn v. Coleman 75 F. Supp. 107 (1974); Klebano v. New York Produce Exchange, 344 F.2d (2nd Cir. 1965). 60. The failure to adequately plead capacity has been grounds for dismissals of lawsuits in Florida state courts. See e.g. Asociacion de Perjudiacados v. Citibank, 770 So, 2d 1267 (Fla. 34 DCA 2000) (dismissing case for lack of capacity as distinguished from lack of standing). 61. Furthermore, the Comment to the Rule (2004 Version), states that “if a party involved in in other than his indi indicated in the caption and the pleadings.” Bold emphasis added.62. “The naming of an individual or entity in the caption is not a sufficient basis to warrant inclusion in the action if the party is not mentioned in the body of the complaint.” Bold emphasis added. Altamonte Hitch & Trailer Serv. Inc. v. U-Haul Co. of Eastern Fla., 498 So. 2d 1346 (Fla. Sth DCA 1986). See also Trawick’s Florida Practice and Procedure §6-2 (2010 ed.) (providing that “the caption is not a part of the pleading for purposes of motions directed to the pleading”). 63. Finally, although the capacity issue is new, it is important to note that judges in circuit courts across this State have routinely recognized the legitimacy of the capacity argument and are routinely granting Defendant’s Motion to Dismiss based on these grounds, particularly in cases for mortgage foreclosures. See e.g. HSBC v. Montgomery, Pinellas Case 52-2009-CA- 005696; Wachovia v. Matacchiero, Pinellas Case No. $2-2009-16936-CI-13; Bolin v, HSBC, Pinellas Case 08-005190-CI-19. 64. Additionally, this Court should take heed of the words of the Honorable William P. Levens, Circuit Judge of the Thirteenth Judicial Circuit, who recently ruled when confronted with a capacity issue in a mortgage foreclosure case that Ithhis is a very, very simple pleading matter than can be easily corrected, but must be correct because J am convinced that 1.120(a) the pleading of capacity and the identification in the body of the Complaint itself is a jurisdiction requisite to this matter going forward... am simply granting the motion with leave to amend to more fully and appropriately comply with 1.120(a) with the explanation in the body of the Complaint that there be a basis. Because capacity is required to show the jurisdiction of the Court, and that needs to be specifically pled in my judgment. Deutsche Bank National Trust Company v. Steiner, Hillsborough ‘County Case No. 08-13651-Cl-15 (Hon. William P. Levens/October 28, 2010). b. Argument65. Here, nowhere in any of the Plaintif?’s pleadings or in any other document filed with this Court is the Plaintiff's entity status or capacity even pled. As a threshold matter, then, it is unclear exactly who the Plaintiff is and how it may avail itself to the jurisdiction of this Court. 66. By failing to allege the grounds upon which this Court’s jurisdiction depends, and by failing to plead or specify in what capacity the Plaintiff brings the instant lawsuit, the Plaintiff id not plead that it has the “absence of legal disability to sue”. 67. Rule 1.120(@) provides for the specific procedures defense counsel must use to challenge the issue of the PlaintifP’s capacity, i.e. specific negative averment. The Defendant therefore specifically asserted in Affirmative Defense III that the Plaintiff failed to plead any facts which identify its entity-status and therefore it could not claim that it had properly invoked the jurisdiction of this Court within the four comers of the Complaint. 68. Additionally, the Defendants’ counsel expressly represented to the Court a search of the to the Plaintiff. 69. Therefore, because the Plaintiff had adequately proved it had capacity to sue, and because the issue of capacity was put into play in the Defendants’ Affirmative Defenses, the Court erred in granting summary judgment to the Plaintiff. V. The Plaintiffs Motion for Summary Judgment should have been denied because the Court relied upon an inadmissible hearsay affidavit over objection of counsel a, Legal Standards a 70. As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that “affidavits shall be made on personal knowledge”); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 24 DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla.2d DCA 2005); In_re_Forefeiture of 1998 Ford Pickup, Identification _No. 1ETZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). 71. Additionally, a corporate officer's affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge. Nout v, All State Supply Co,, So. 2d 1204, 1205 (Fla, 1st DCA 1986). 72. Most importantly, an affiant should state in detail the facts showing that the affiant hhas personal knowledge, See Hoyt v. St. Lucie County, Bd. Of County Comm'rs, 705 So. 2d 119 (Fla 4th DCA 1998) (holding an afidavit legally insufcen where it failed to ref fats demonsrating how the affiant would possess personal knowledge of the matters at issue inthe case); Carter v. Cessna Fin. Corp. 498 So. 2d 1319 (Fla. 4th DCA 1986) (holding an affidavit fegally insufficient where the affiant failed to set out a factual basis to support a claim of personal knowledge of matter at issue inthe case and failed to make assertions based on personal knowledge.) 73, The Third District, in Alvarez.v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that “the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.” Id at 1232 (quoting Pawlik v, Bamett Bank of Columbia County, 528 So, 2d 965, 966 (Fla. Ist DCA 1988)) 74, This opposition to hearsay evidence has deep roots in Florida common law. In Capello v. Flea Market U.S.A. Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition ‘was not based upon personal knowledge and therefore contained inadmissible hearsay evidence.See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. Sth DCA 1989); Crosby _v. Paxson Electric Company, 534 So. 2d 787 (Fla. Ist DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA. 1969). Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge. 75. Fla. R. Civ. Pro. 1.510(e) also provides, in pertient part, that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” 76. Failure to attach such papers is grounds for reversal of summary judgment decisions. In SX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) the Second District reversed summary judgment granted below, in part, because the affiant based his statements on reports but failed to attach same to the affidavit. 71. The Second District noted that because these statements were based upon said reports, they were consequently not based upon the affiant’s personal knowledge, and were therefore inadmissible hearsay statements. Id at 759. 78. Florida Statue §90.901 (1989) states, in pertinent part, that “[ajuthentication or identification of evidence is required as a condition precedent to its admissibility.” 79. The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that “affidavits...shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records renderedaffiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein). 80.A “custodian” is identified “a person or institution that has charge or custody (of...papers).” See Black's Law Dictionary, 8th ed. 2004, custodian. 81. Finally, this Court must note that Circuit Courts in the Sixth Judicial Circuit have granted Motions for Rehearing and vacated final judgments in contested foreclosure cases where the affidavit relied upon contained inadmissible hearsay. See e.g. GMAC Mortgage, LLC v. Debbie Visicaro, Case No. 07-013084-CI-13 (Fla. 6th Jud. Cir., Pinellas County, 2010). b. Argument 82. Here, despite the fact that the Defendants’ counsel objected to its introduction, the Court admitted into evidence an inadmissible hearsay affidavit. As such, awarding the Plaintiff summary judgment constitutes a reversible error. "33. Simply’ put, the Affiant’s barebones statement that the Affidavit is made upon the ‘Aifiant’s personal knowledge is not enough to meet the requirements for factually determining personal knowledge as articulated by various Florida ‘case law. See e.g. Hoyt v. St. Lucie County, Bd. Of County Comm’rs, supra; Carter v. Cessna Fin. Corp., supra. 84. At best, then, the Affiant only averred that the Affiant had examined some records prepared by someone other than himself. Thus, the Affiant has failed to state in detail the facts showing that he has personal knowledge as required by the Florida case law.85. Because the Affiant has no personal knowledge of the underlying transaction between the Plaintiff and the Defendants, any statement he gives which references this underlying transaction is, by its very nature, hearsay. 86. The Florida Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla. Stat. §90.801(1)(c) (2007). 87. Here the Affiant is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely, the individuals who created the purported records) and is offering this as proof of the matter asserted (that the Plaintiff is entitled to summary judgment). 88. The Plaintiff may argue that while the Affiant’s statements may be hearsay, they should nevertheless be admitied under the “Records of Regularly Conducted Business Activity” exception, Fla, Stat. §90.803(6) (2007). 89. This rule provides that notwithstanding the provision of §90.802 (which renders hearsay statements inadmissible), hearsay statements are ‘nevertheless admissible, even though the declarant is available as a witness, ifthe statement is ort, record, or ympilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of 2 Fegularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90,902(11), unless the sources. of information or other circumstances show lack of trustworthiness. Bold emphasis added. 90. There are, however, several problems with this argument. To begin, no memorandums, reports, records, or data compilations have been offered by the Plaintiff.91. Additionally, the Affiant’s failure to attach any of the documents he refers to shows a lack of trustworthiness. 92. The Affiant has also failed to attach a certification made under penalty of perjury and pursuant to Fla, Stat. §90.902(11) that the records she referred to are in fact business records. See also Yisrael v, State, 993 So. 2d 952, 957 (Fla. 2008) (providing that the proponent of a business record may establish a business record predicate through a certification or declaration, under penalty of perjury, that complies with Fla. Stat. §90.902(11)). 93, Furthermore, on information and belief, the Affiant has failed to identify himself as the custodian of the records or aver to any specific facts which shows he is a qualified witness as required by the Statute. 94, As such, the Affidavit was based entirely on inadmissible hearsay statements. Granting the Plaintiff's Motion for Summary Judgment was therefore improper pursuant to the authority of Capello, supra and its progeny. 95. As if this was not enough, the Affiant failed to attach the purported records were to the Affidavit, 96. Therefore, ‘the Affiant, just as the affiant in CSX Transp.. Inc., was relying on inadmissible hearsay statements. Admission of such an affidavit, then, is grounds for reversal of summary judgment ees 97. Even farther, because, upon information and belief, the Affiant was not the custodian of the purported business records, she failed to authenticate them within meaning of Fla. Stat. §90.901.98. Finally, the facts at issue here are also directly on point with the facts of the GMAC Mortgage, LLC v. Debbie Visicaro, supra. Granting Summary Judgment in favor of the Plaintiff was therefore improper. VI. Summary Judgment was improperly entered because the Plaintiff did not amend its Complaint a. Legal Standards 99. Fla, R. Civ. Pro. 1.190(a) provides, in pertinent part, that “fa] party may amend a pleading once as a matter of course at any time before a responsive pleading is served...fo]therwise, a party may amend a pleading only by leave of court or by written consent of the adverse party.” 100. Moreover, “[t]he proper method of deleting less than all counts from_a pleading is amendment of the pleading pursuant to Fla.R.Civ.P. 1.190.” Deseret Ranches of Florida, Inc. v. Bowman, 340 So.2d 1232, 1233 (Fla. 4th DCA 1976) cert. denied, 349 So.2d 155 (Fla, 1977).. Bold emphasis added. 101. This is because “it is well-settled that only an entire action may be voluntarily dismissed under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes of action.” Marine Contractors, Inc. v. Armco, Inc., 452 So.2d 77, 80 (Fla. 2d DCA 1984). 102. Finally, any attempt to voluntarily dismiss less than an entire action is a nullity. ‘See Murillo v. Tri-State Employment Services, Inc., 925 $o.2d 376 (Fla. 1st DCA 2006); Perez v. Winn-Dixie, 639 So.2d 109 (Fla. 1s t DCA 1994); See also'generally Marine Contractors, Inc. ViAiméo, Ine., 452 $o.2d 77, 80 (Fla. 24 DCA“1984); Deseret Ranches of Florida, In. v. Bowman, 340 So.2d 1232, 1233 (Fla. 4th DCA 1976) cert. denied, 349 So.2d 155 (Fla. 1977). b. Argument103. Here, the Plaintiff's original complaint pled for two counts: one for reestablishment of a lost promissory note and two for foreclosure of a mortgage. Additionally, the Defendants’ counsel objected to the introduction of the purported “original” note at the summary judgment hearing. Nevertheless, this purported original instrument was admitted into evidence even though it was directly repugnant to its reestablishment count. 104. Additionally, the docket reveals that the Plaintiff has apparently filed an affidavit which avers that the subject note had been lost, stolen, or destroyed on or about Tune 30,2009. 105. The Plaintiff never elected to file an Amended Complaint which would have dropped all but the desired mortgage foreclosure count. Therefore, at the February 15" hearing, the Plaintiff was required to show that there was no genuine issue of material fact that the subject note had been lost, stolen, or destroyed. 106. Consequently, the admission into evidence of the purported original note was a repugnancy to this material allegation and the Plaintiff's Motion for Summary Judgment should have been dismissed. WHEREFORE, based upon the foregoing, the Defendants respectfully request this Court grant their Motion for Reconsideration/Motion for Rehearing, vacate the summary judgment entered against them, vacate any final judgment entered against them, cancel any pending foreclosure sale, award attorney’s fees to the Defendants, and any other relief the Court deems just and proper. CERTIFICATE OF SERVICETHEREBY CERTIFY that a true and correct copy ofthe foregoing has been fumished by Le U.S. Mail on this _- day of February, 2011 to KELLY A. CRAMER, Law Offices of Daniel C. Consuegra, 9204 King Palm Drive, Tampa, FL 33619-1328. TTHEW D. WEIDNER ‘Attorney for Defendants 1229 Central Avenue St. Petersburg, FL 33705 (727) 894-3159 FBN: 0185957IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY SAXON MORTGAGE SERVICES, INC., Plaintiff, vs. Case No.: 2009-CA-002709-ES BREGINIA DARLENE JORDAN, et al., Defendants. / PROCEEDINGS: Hearing held before the HONORABLE SR. JUDGE WAYNE L. COBB DATE: February 15, 2011 TIME: 9:00 a.m, to 9:12 a.m. PLACE: Pasco County Courthouse 38053 Live Oak Avenue Dade City, Florida REPORTED BY: Judy A. Anderson, RPR, FPR Notary Public State of Florida at Large ANDERSON COURT REPORTING 14150 Third Street P. 0. Box 2426 Dade City, FL 33526-2426 Phone (352) 567-5484 Fax (352) 567-9151 A EXHIBIT“10 uw 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: KELLEY A. CRAMER, ESQUIRE Law Offices of Daniel C. Consuegra, P.L. 9204 King Palm Drive Tampa, Florida 33619-1328 (813) 915-8660 Attorney for Plaintiff Appearing Via Telephone MATTHEW D. WEIDNER, ESQUIRE Matthew D. Weidner, P.A. 1229 Central Avenue St. Petersburg, Florida 33705 (727) 213-6235 Attorney for Defendants INDEX Page Certificate of Reporter 19 EXHIBITS (None)10 a 12 13 14 1s 16 a7 18 19 20 21 22 23 24 25 PROCEEDINGS THE COURT: Hello? MS. CRAMER: Hi. Good morning, Your Honor. THE COURT: Good morning. You are? MS. CRAMER: Kelley Cramer from the Law Offices of Daniel Consuegra. THE COURT: Okay. Mr. Weidner is here. MS. CRAMER: Okay. THE COURT: There's not -~ Pasco County's not really involved, are they anymore? MR. WEIDNER: I'm not aware, Your Honor. In what manner? THE COURT: Well, they were named a defendant. MR. WEIDNER: If we haven't gotten service on them, then I don't think we can proceed. THE COURT: Well, I think there was service. They filed an answer. But I'm just wondering if we can go ahead. MR. WEIDNER: I don't -- Do we have notice on them? THE COURT: Ms. Kelley, is Pasco County still involved in this case? MS. CRAMER: I'm looking at their They filed an answer. THE COURT: Right.10 a 12 13 4 15 16 17 18 19 20 21 22 23 24 25 MS. CRAMER: They just have a - They just have a judgment against the defendant. THE COURT: Okay. So I assume they won't be here. This is your motion for summary judgment; is that correct? MS. CRAMER: Yes. THE COURT: Mr. Weidner, do the Jordans have objection to that? MR. WEIDNER: Oh, yes, sir, Your Honor, we do. THE COURT: Okay. MR. WEIDNER: May I make some initial objections I'd like to get on before plaintiff goes forward? THE COUR’ Okay. MR. WEIDNER: The initial objection that I make regard to the senior judge division and the implementation of it in contested matters. The Florida Supreme Court has issued several opinions. The two controlling ones are Physicians Healthcare and Dozier. The primary problem that we have, Your Honor, is that the Constitution contemplates that decisions will be made by elected judges and that when we enter into matters that are contested, they can be done only10 qt 12 13 14 15 16 aq 18 1g 20 21 22 23 24 25 under a very limited circumstance by the senior judge system. What's happened now is the senior judge system that has expanded across the state I believe exceeds the parameters allowed by the Constitution as defined and described in Florida Physicians. The primary arguments raised in Florida Physicians are under article five, again, a citizen is entitled to suffrage or the right to have a decision made by an elected judge. In examining whether or not the senior judge designation exceeds those constitutional parameters there are three factors. The first one is the nature of the assignment, the second is the type of cases covered, and the practical effect of the assignment. Now, the only real safe harbor is the temporary nature, but we have legislation that's been introduced now in front of the legislature which would expand the senior judge system to allow a different class, so that eliminates that argument. I just want to state that for the record and I want the record to be clear about that that under the factors that are articulated in Physicians Healthcare, that's 846 So.2d 1129, and10 ri 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 in Wild versus Dozier, that's 6772 So.2d 16, there's a problem I think with hearing contested matters. I believe there's a place, obviously, but I think the place is uncontested. Having said that, the second structural objection that I want to raise is the fact that plaintiff's counsel is appearing by telephone. Now, I'm going to be objecting to everything that plaintiff might attempt to introduce into record here. In order for this plaintiff to proceed in this case, they have to propone their evidence, and as the proponent of the evidence they mist be here to physically perform that act. The problem that we have here is to the extent that plaintiff is going to assert that they're entitled to judgment, they're going to make assertions based upon evidence that they don't have. They're gonna ask presumably the court to be the proponent of the evidence or to assist them in that. It's another one of the structural problems with what we have before us. I had to drive here in order to protect my clients' rights, in order to ensure that my client had their due process rights. The proposition before the court is that if this plaintiff wants10 qt 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 this court sitting at equity to grant it judgment, this plaintiff should be here with their evidence and this plaintiff should be moving the evidence and proponing the evidence, not relying on the court to sit here and interpret what might be in that file. With all due respect, counsel sitting in an office wherever she is has no idea what's in front of the judge, so how can counsel assert that this judge should grant judgment to her? THE COURT: Anything else? MR. WEIDNER: As those initial objections, I will just state the standing objection to anything they'll introduce. THE COURT: Okay. I'm gonna deny those. MR. WEIDNER: Yes, Your Honor. (Brief off-the-record discussion with an attorney on the speaker phone who was not, associated with this case.) THE COURT: Ms. Kelley? Yes, Your Honor. You want to argue your motion? MS. CRAMER: Yes, Your Honor. I just wanted to state that all of our pleadings and our evidence are in the court file. We did file the original10 ua 12 13 14 15 16 a7 18 19 20 2. 22 23 24 25 note and the original mortgage with the court, and those should be in the file. The default date on this loan is April 1, 2008. We filed all of our affidavits as to costs and attorney's fees as well as our motion for summary judgment. Our client affidavit was filed in July of last year. All defendants were properly noticed and served. They were either defaulted or dropped. And we are seeking final judgment in the amount of $300,252.37. That includes $1,200 in attorney's fees. Additionally, Your Honor, there is a -- I spoke to opposing counsel yesterday on this file, and there is a pending short sale on the property. So I would be willing to extend the sale date, you know, maybe 120 days just to get -- just to get that, you know, taken care of and dismiss it if this short sale goes through. THE COURT: Okay. Mr. Weidner? MR. WEIDNER: Please the court, Your Honor. I would again restate my objection to counsel's representation about anything that's in the court file. Counsel, isn't here. Counsel does not know what's in -- I've already overruled that.10 Sey 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 MR. WEIDNER: Okay. The next issue we're gonna get to is exactly who is the plaintiff that's before the court. The style on this case is Taylor, Bean and Whitaker Mortgage Corporation. However, at some point in time there was an improper attempt to substitute in another party. I'm gonna quote for the court the standard regarding substitution under 1.260(c), but I want to state for the court the standard for summary judgment that is applicable in this circuit is Tamm versus Bradley. It's a 1997 case out of the second. And Tamm is very clear. It says that if the record reflects the existence of any genuine issue of material fact, or the possibility of issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. And I think that's important to keep in mind. Anytime that we have any question about facts, summary judgment just is not even proper. I'm gonna roll down a whole slew of facts here any one of which leads us that we must not grant summary judgment. But again I'm gonna tick off a whole bunch of them. So, again, there's the standard, Tamm versus Bradley. It's the controlling case on the jurisdiction. Do you care10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 for it? THE COURT: (Shook head.) MR. WEIDNER: Thank you, sir. Next again getting to this issue of the improper attempt to substitute a party plaintifs. At some point in time some motion was filed where counsel asserted that the named plaintiff Taylor, Bean and Whitaker was no longer the proper party. It's important to note from the docket that no hearing was held on that matter. I'm gonna quote the Rule 1.260 which asserts the proposition that a motion for substitution may be made by any party or deceased party, and together with the notice of hearing shall be served on all parties. Again, together with the notice of hearing. The key issue here, Your Honor, is there was an improper attempt to substitute party plaintiff. There was no notice of hearing. A case that I'11 cite for that is Pro-Art Dental Lab versus V-Strategic. That's 986 So.2d 1244. The quote that's important out of there is Florida law clearly holds the trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice, and to allow a court to rule on a matter without proper10 aa 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ua pleadings and notice is a violation of a party's due process rights. The second case that I want to cite for that, Your Honor, is Mangonia -- Tinsley versus Mangonia Residence. That case again, 937 So.2d 178, there's an improper attempt to substitute. However, the motion was not called up for hearing. This case again cites the Rule 1.260 and the filing of motion and the rule that it's supposed to follow and that includes notice of hearing. The point here is, Your Honor, we really don't know who the plaintiff is. The only proper plaintiff before the court is Taylor, Bean and Whitaker, and somehow we got an interloper in here improperly. But getting now to more of the substance before the court, the plaintiff propones to go forward and asserts that there's no issue of material fact. However, we've got an affidavit in there which counters the suggestions that they've made in their affidavit and they have not countered our affidavit. Moreover, we have affirmative defenses, which although they have filed a response to affirmative defenses, they have not factually refuted10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 affirmative defenses. Therefore, based on Frost versus Regions Bank, which is a relatively recent case that's 15 So.3d 905, it says summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories and affidavits, if any, conclusively show that there is no genuine issue of material fact and moving party is entitled to summary judgment as a matter of law. They simply have not even gotten close to that. An earlier case that's Morroni versus Household Finance, again it stands for the proposition that if the plaintiff doesn't factually refute the affirmative defenses, summary judgment is not proper. They have not done that in this case, Your Honor, and it's not proper. Let's talk about another one of the significant affirmative defenses that's raised in this.case, Your Honor. It's pled both as an affirmative defense and as part of our objection to summary judgment and that is the capacity of the party to bring this action. If we're standing in a county courtroom and a foreign corporation's suing on a credit card and I say, "Your Honor, Nevada corporation. They're not registered here in the state of Florida," that case10 a 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 13 gets dismissed until they register. Well, the very same thing applies in circuit court and every court, Your Honor. Party must have proper capacity to unlock the doors of the courthouse. Capacity refers both to their legal authority to proceed on behalf of whomever they're proceeding but also their ability to invoke the jurisdiction of the court. I don't know whether we're dealing with Taylor, Bean and Whitaker or whether it's Saxon, but apparently they're moving for summary judgment on behalf of Saxon, and I've got a printout here from the Division of Corporations and there is no Saxon Mortgage Services that is registered to do business in the state of Florida. So, and they might assert that perhaps they don't need to register or whatever, but the fact of the matter is this is a pleading matter and pleading is a threshold matter. If they have not pled their right to invoke the jurisdiction of the court, then they may not invoke the jurisdiction of court. If counsel is going to assert some sort of exception, preemption or exemption from federal law which they do sometimes, they must plead within the complaint, (A) their capacity, and (B) their entitlement to10 qn 12 13 14 15 16 wy 18 19 20 21 22 23 24 25 14 travel under the exemption that they try. As they get into the evidence that they purport to introduce, I've got a problem here because I don't know what their evidence is. I am entitled to know what is in the court file. She's made -- THE COURT: You could have looked at court file anytime you wanted, Mr. Weidner. MR. WEIDNER: Okay. So at this point in time -- THE COURT: You know that. MR. WEIDNER: Understood. But at this point in time we're in the trial and she's proponed evidence that T haven't had the benefit of seeing. THE COURT: Sure you could. You could have looked at it anytime. MR. WEIDNER: Okay. Well, I'd like to look at it now, ox even without even looking at it I will assert that the affidavit does not meet the standard for summary judgment under 1.510, I'll object to that on hearsay, but I'll also object to it based on the fact that the books and records that are required to.be attached to that affidavit under the standard for summary judgment are not attached there. So, again, they haven't met a10 at 12 13 14 15 16 a7 18 19 20 2a 22 23 24 25 15 threshold which is quite clearly black and white under the rules of summary procedure, if they're going to rely on an affidavit and support judgment, they must attach the records. Not just the records but sworn or certified copies of the records. They haven't done so. Not entitled even under the affidavit they have. So they don't even have admissible evidence upon which you can grant summary judgment if you wanted to. Second element regarding the note, now, I don't see an original note. Is there an original note there? THE COURT: Yes. MS. CRAMER: Yes, there is an original note. It was filed on MR. WEIDNER: May I see it? Because, again, this gets to the problem that THE COURT: You've had plenty of time to look at it. MR. WEIDNER: Well, I'm here now, and if the court is considering evidence that's being presented by somebody over the phone, I am entitled to see it because I've got an objection to make about that. MS. CRAMER: All the pleadings were sent to10 uw 12 13 1a 15 16 17 18 19 20 21 22 23 24 25 16 all parties. MR. WEIDNER: It's not the pleading, Your Honor. It's the original document. Under the uniform ~~ MS. CRAMER: Copies were sent to all parties ~~ THE COURT: Mr. Weidner, are you through? MS. CRAMER: of everything that we filed with the court. MR. WEIDNER: The next objection I'm going to make is the presentation or asserted entitlement to attorney's fees based on affidavit. They may not do that when I won't accept affidavit. So I'm challenging their ability to assert entitlement to attorney's fees without having a witness here to testify as to the propriety of those attorney's fees. THE COURT: Anything else? MR. WEIDNER: If counsel is gonna respond, will I have an opportunity to respond after counsel makes argument? THE COURT: I find that there's not any facts in dispute, and I'm gonna grant the motion for summary judgment, Mr. Weidner. MR. WEIDNER: Yes, sir.10 a 12 13 14 15 16 7 18 19 20 2 22 23 24 25 17 THE COURT: I will grant the 120 days. MR. WEIDNER: I haven't even seen an original document, Your Honor. THE COURT: Well, you could have. MR. WEIDNER: T have. I mean, I've looked at the file. I'm talking about in these proceedings. I'm here as a proponent for my witness, for my client asking to see the evidence that the court is relying on, and I'm not being able to see that evidence. I find that improper, Your Honor. I don't know what the affidavit is that's being xelied-on by: the court. I don't know what documents are being relied on by the court. THE COURT: Okay. Well, you can look at the file, Mr. Weidner. It will be up in the clerk's office: about - this afternoon probably. MR. WEIDNER: Thank you, Your Honor. MS. CRAMER: Thank you, Your Honor. THE COURT: So I granted the 120 days, Ms. Kelley. MS. CRAMER: Thank you, Your Honor. MR. WEIDNER: I haven't even seen the judgment that's being entered. THE COURT: It will be up there too, and you'll get a copy probably week after next.10 i 12 13 14 15 16 47 18 19 20 2a 22 23 24 25 MR. WEIDNER: I need to get it within ten days. THE COURT: Then go to the clerk's office. MR. WEIDNER: Thank you, Your Honor. MS. CRAMER: The copy was sent to you, Mr. Weidner, of the proposed final judgment. MR. WEIDNER: TI don't know what the judge signed, Counsel. MS. CRAMER: It's the same one we sent to judge. THE COURT: Okay. Thank you. (Whereupon, the hearing concluded at 9:12 a.m.) has the 18CERTIFICATE OF REPORTER STATE OF FLORIDA) COUNTY OF PASCO ) I, Judy A. Anderson, Registered Professional Reporter, Florida Professional Reporter, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true 10 un 12 13 1a 15 16 ay 18 19 20 2a 22 23 24 25 and complete record of my stenographic notes. Dated this 15th day of February, JUDY A. ANDERSON, RPR, 2011. FPRa ability 13:7 16:14 able 17:9 accept 16:13 act 6:13 action 12:21 ‘Additionally 8:12 admissible 15:8 affidavit 8:6 11:19 11:21,22 14:19,23 1537 1612.13 rai affidavits 8:4 12:6 affirmative 1:23 11:24 12:1,13,17 12:19 afternoon 17:16 ahead 3:18 alk? allow 5:20 10:24 allowed 5:5 amount 8:10 ‘Anderson 1:18,22 19:6,13 answer 3:17.24 answers 12:5 anymore 3:10 anytime 9:18 14:8 14:16 apparently 13:11 ‘ARPEARANCES 21 appearing 2:5 6:7 applicable 9:10 applies 13:2 Aprils:3 argue 7:22 argument 5:22 1621 arguments 5:7 article 5:3 articulated 5:24 asking 17:8 ascert 6:15 7.9 13:16,22 14:19 ted apgerted 10:7 16:11 assertions 6:17 asgerts 10:11 11:18 assignment 5:14,16 assist 6:19 associated 7:19 assume 4:3 attach 15:4 attached 14:23,25 attempt 6:9 9:6 105,17 11:6 ajiprney 2:48 7:18 attorney's 8:5,11 16:12,15,16 authorized 19:8 ‘Avenue 1:16 2:7 aware 3:11 am 1:14,14 18:13 mee B23 13:25 Bank 12:2 based 6:17 12:1 14:22 16:12 Bean 9:4 10:8 11:13, 13:10 Deball 13:6,12 Delieve 5:46:3 benefit 14:14 Diack 15:1 ‘books 14:22 Box 1:23, Bradley 9:11,24 BREGINIA 1:6 Brief 7:17 bring 12:21 bunch 9:23 ‘business 13:15 € 2234 called 11:7 capacity 12:20 13:3, 13425 card 12:23 care 8:179:25 ‘ease 1:5 3:22 6:11 7:19 933,11,25 10:18 113,57 12:3,10,15,18,25 ‘cases 5:15 Central 2:7 Certificate 2:12 19:1 certified 15:5 certify 19:7 ing 16:14 circuit 1:1,1 9:10 132 dreumstance 5:1 ite 10:19 11:3, ites 11:8 citizen 5:8 City 1:16,23 lass 5:21 clear 5:23 9:12 ‘leary 10:22 15:1 clerk's 17:15 18:3 client 6:23 8:6 17:8 clients 6:23 lose 12:9 COBB 1:11 complaint 13:24 ‘complete 19:10 ‘concluded 18:12 ‘conclusively 12: ‘considering 15:21 Constitution 4:22 55 ‘constitutional 5:12 Consuegra 2:2 3:6 ‘contemplates 4:23, contested 4:18,25, copies 15:5 16:5 ‘copy 17:25 18:5 corporation 9:4 12:24 ‘Corporations 13:13 corporation's 12:23 correct 4:6 costs 8:4 counsel 6:77:79 8:13,23,23 10.7 13:22 16:19,20 188 counsel's 8:21 ‘countered 11:21 ‘counters 11:20 ‘county 1:1,15 3:21 12:22 19:4 County's 3:9 ‘court 1:1,223:2,4,7 3:9,13,16,21,25 43,8,11,15,19 6:18,257:1,5,11 715,202.35 8:1 8:19,20,22,25 9:3 9:79 10:2,22,25 17 13:2,3.8 13:2021 14:5,7,7 weaLis 15138 1859 credit 12:23 DARLENE 1:6 date 1:12 83,15, Dated 19:11 day 19:11 days 8:16 17:1,19 182 dealing 13:9 deceased 10:13, decision 5:10 decisions 4:23 default 8:3 defaulted 8:8 defendant 3:13 42 defendants 1:8 2:8 87 defense 12:19 defenses 11: 12411317 defined 5:6 Dental 10:19 deny 7:15 ‘depositions 12:5 described 5:6 designation 5:12 determine 10:23 different 5:21 discussion 7:17 ismiss 8:17 dismissed 13:1 dispute 16:23 division 4:17 13:13 docket 10:9 document 16:3 17:3, documents 17:13, doors 13:4 25 Dorier 4:21 6:1 drive 2:3 6:22 dropped 8:9. ue 6:24 7-7 11:2 E 13 31,1 earlier 12:10 effect 5:15 either 8:8 lected 4:24 5:10 ‘element 15:10 eliminates 5:21 ensure 6:23 center 4: centered 17.23 entitled 5:9 6:16 128 14:5 15:6,22 entitlement 13:25 1G:1114 evidence 6:11,12,17 Page 20 6:19 7:2,3,4,24 1424.14 15:8,21 178,10 exactly 9:2 ‘examining 5:11 exceeds 55,12 exception 13:22 exemption 13:23, 14:1 exist 9:16 existence 9:13, expand 5:20 expanded 5:4 extend 8:15, extent 6:14 Fo fact 6:6 9:14 11:19 12:7 13:17 14:22 factors 5:13.24 facts 9:19,20 16:22 factually 11:25 1212 Fax 1:24 February 1:12 19:11 federal 13:23 fees 8:5,11 16:12,15 1617 file 7:6,25,25 8:2,13 823.1458 1756 ITS filed 3:17,24 8:46, 10,6 11:24 15:15 168 filing 11:8 final 8:9 18:6 Finance 12:11 find 16:22 17:10 first 5:13 five 5:8 L123 Florida 1:1,16,19 23,7 4:19 5:67 40:21 1225 13:15 1937 follow 11:9 foregoing 19:9 foreign 12:23 forward 4:14 11:18 FPR 1:18 19:13, front 5:19 7:8 Frost 12:1 Ga genuine 9:13 12:7 getting 10:4 11:16 03:18 11:17 183 oes 4:13 8:18Page 21 going 68,15,16 1322 15:3 1610 gonna 6:18 715 9:2 9:720,22 10:10 16:19,33 6008 334 gotten 3:4 129 grant 7:1,10921 158 16:23 17:1 ranted 12:4 1719 a Ha happened 5:3 harbor 5:17 bead 10:2 Healtheare 4:21 5:25 bear 10:23 bearing 1:1062 10:10,14,15,18 117,10 18:12 hearsay 14:21 held 1:10 10:10 Hello3:2 Hi33 holds 10:22 Honor 3:3,11 4:10 4:22 7:16,21,23 8:12,20 10:16 U4 1112:15,18 12:24 133 16: 173,10,17,18,21 184 HONORABLE on Household 12:11 igs 4:18 important 9:17 10:9 1021 Improper 9:6,17 105,17 11:6 1710 Improperly 11:15 ineludes 8:10 11:10 initial 4:12,16 7:12 {nterloper 11:14 interpret 7:5 interrogatories 125 introduce 6:9 7:14 143 introduced 5:19 Invoke 13:7,20,21 involved 3:10,22 issue 9:1,14,15,16 104,16 11:18 127 issued 4:19 I - JORDAN 16 Jordans 48 Judge 1:11 41752 53,10,11,20 79 710 187,10 judges 4:24 Judgment 42.5 616 7:1,10 8:69 9:10,16,19.22 12:3,8,13,20 1:1 142024 1539 1624 17:22 186 IUDICIAL 1:1 Tody 1:18 19:6,13 July 8:7 9:25, Jurisdiction 10:22 13:720,21 9: Kelley 2:2 3:5,21 7:20 17:20 key 10:16 King 2:3 Imnow 8:16,17,23 1112 139 14:45 14:11 17:11,12 187 Liat Lab 10:19 Incks 10:22 Large 1:19 Jaw 223:5 10:21, 128 13:23 Jeads 9:21 legal 13:5 legislation 5:18, legislature 5:19 Let's 12:16 limited 5:1 Live 1:16 Jean 8:3 longer 10:8 ook 14:17 15:18 17:14 looked 14:7,16 17:5, looking 3:23 14:18 a ‘Mangonia 1:44 ‘manner 3:12 ‘material 9:14 11:19 127 matter 10:10,25 128 13:17,18,19 matters 4:18.25 6:3 10:23, Matthew 2:6,6 mean 17:5 meet 14:19 met 14:25 mind 9:18 morning 3:3,4 ‘Moroni 12:10 mortgage 9:4 13:14 motion 4:5 7:22 8:5 10%6,12 11.7.8, 1623 ‘moving 7:3 12:7 1a N2A034 named 3:13 10:7 nature 5:14,18 need 13:16 18:1 Nevada 12:24 Notary 1:18 note 8:1 10:9 15:10 15:11,12,14 notes 19:10 notice 3:19 10:13 18,24 111 11:10 noticed 8:8 Oak 1316 object 14:21,21 objecting 6:8 objection 4:9,16 6:6 73 821 12:19 15:23 16:10 objections 4:13, Tad obviously 6:3 office 7:8 17:16 Offices 2:2 3:6 off-the-record 7:17 On4:10 Okay 3:7,8 4:3,11 415 7:15 8:19 921 1491717514 18:11 ‘ones 4:20 ‘opinions 4:20 ‘opportunity 16:20 ing 8:13 opposing 8: order 6:10,22,23 original 7:25 8:1 15:11,11,14 163 172, overruled 8:25 P P1233 Page 2:11 Palm 2:3 parameters 5:5,12 part 12:19 parties 10:14 16:1,6 arty 9:6 10:5,8,12 10:13,17 12:7,21 33) party's 11:1 Pasco 1:1,153:9,21 194 pending 8:14 perform 6:13 Petersburg 2:7 hone 1:24 7:18, 15:22 physically 6:13. 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BREGINIA DARLENE JORDAN AND MICHAEL ANTHONY JORDAN, DEFENDANTS. DEFENDANTS’ OBJECTION TO PLAINTIFF'S MOTION FOR SUMM. JUDGMENT, ‘COMES NOW, the Defendants BREGINIA DARLENE JORDAN and MICHAEL ANTHONY JORDAN (hereinafter “Defendants"), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully files this OBJECTION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, pursuant to Fla. R. Civ. Pro. 1.510 and precedent case law, and in support thereof states as follows: FACTS 1, This is an action for foreclosure of residential real property owned by the Defendants. 2. The named Plaintiff in this case is SAXON MORTGAGE SERVICES, INC. (hereinafter “Plaintiff”). However, the instant action was initiated by another party, namely TAYLOR, BEAN & WHITAKER MORTGAGE CORPORATION (hereinafter “Taylor, Bean & Whitaker’). 3. Taylor. Bean & Whitaker is the original mortgagee of the subject mortgage. 4. On or about August 7, 2009 the State of Florida, Office of Financial Regulation, pursuant to Fla. Stat. §494, filed an Emergency Order to Cease and Desist and Notice of Rights(hereinafter “Office of Financial Regulation’s Order”) against Taylor, Bean & Whitaker. See Emergency Order to Cease and Desist and Notice of Rights, attached hereto and incorporated as Exhibit “A”. 5. The Office of Fit iancial Regulation’s Order provided that the emergency cease and desist against Taylor, Bean & Whitaker because the Office of Financial Regulation “found that an immediate and serious danger to the public welfare flows from the unlawful activities of Taylor Bean & Whitaker Mortgage Corp.” Bold emphasis added. See Emergence} ler to Cease Desist and Notice of Rights at 1. 6. The findings of fact articulated in the Office of Financial Regulations Order included, amongst other things, the following: a. That on August 4, 2009 the Federal Housing Administration (hereinafter “FHA” had suspended Taylor, Bean & Whitaker from originating loans insured by the FHA; b. That on August 4, 2009 the Government National Mortgage Association (hereinafter “Ginnie Mae”) was defaulting and terminating Taylor, Bean & Whitaker as an issuer in Ginnie Mae’s mortgage backed security program as well as Taylor, Bean & Whitaker's ability to continue to service Ginnie Mae securities; ¢. That on August 4, 2009 the Mortgage Review Board of the U.S. Department of Housing and Urban Development notified Taylor, Bean & Whitaker of the immediate suspension of its originating and underwriting approval; d. That several state agencies that regulate banking and mortgage lenders have entered adverse administrative orders acting against the licenses held by Taylor, Bean & Whitaker, and finally¢. That the Office of Financial Regulation found it necessary to take emergency and immediate action against Taylor, Bean & Whitaker to avoid irreparable harm to Florida consumers resulting from “[Taylor, Bean & Whitaker's] ongoing inability to fund agreements that it has entered into with Florida consumers, including loans that have already closed.” Bold emphasis added. See Emergency Order to ‘Cease and Desist and Notice of Rights at 1. 7. The Office of Financial Regulation ultimately stripped Taylor, Bean & Whitaker of its license to engage in business in the State of Florida based upon the fraudulent actions perpetrated by it in originating loans to consumers such as the Defendants, 8. Finally, with respect to the current named Plaintiff, while Plaintiff's name is asserted in the caption of several recent court filings, nowhere in the body of Plaintif?'s complaint or in any other pleading or filing does the Plaintiff set off or describe in any way the structure of the entity so described nor does the Plaintiff assert in what capacity does the Plaintiff contend it may avail itself to the jurisdiction of this Court. Nowhere in the body of Plaintiff's complaint does it assert the basis for its entity-existence or explain in any way the form of the entity that presents itself before the court. Moreover, a search of the Florida Division of Corporations reveals that no license, either active or inactive, has ever been issued to the Plaintiff. It is therefore unclear who the Plaintiff even is. STANDARD OF REVIEW 9. Under Florida law, summary judgment is proper if, and only if, based on an examination of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See The Florida Bar v. Green, 926 So. 2d 1195, 1200 (Fla. 2006); Volusia County vv. Aberdeen at Ormond Beach, L.P., 760 So. 24 126, 130 (Fla. 2000).IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PASCO COUNTY, FLORIDA CIVIL DIVISION SAXON MORTGAGE SERVICES, INC., CASE NO. 2009-CA-002709-ES PLAINTIFF, BREGINIA DARLENE JORDAN AND MICHAEL ANTHONY JORDAN, DEFENDANTS. DEFENDANTS’ OBJECTION TO Pi FI JUDGMENT FOR SUMMARY COMES NOW, the Defendants BREGINIA DARLENE JORDAN and MICHAEL ANTHONY JORDAN (hereinafter “Defendants”), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully files this OBJECTION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, pursuant to Fla. R. Civ. Pro. 1.510 and precedent ‘case law, and in support thereof states as follows: FACTS 1. This is an action for foreclosure of residential real property owned by the Defendants. 2. The named Plaintiff in this case is SAXON MORTGAGE SERVICES, INC. (hereinafter “Plaintif”). However, the instant action was initiated by another party, namely TAYLOR, BEAN & WHITAKER MORTGAGE CORPORATION (hereinafter “Taylor, Bean & Whitaker”). 3. Taylor. Bean & Whitaker is the original mortgagee of the subject mortgage. 4. On or about August 7, 2009 the State of Florida, Office of Financial Regulation, pursuant to Fla, Stat, §494, filed an Emergency Order to Cease and Desist and Notice of Rights(hereinafter “Office of Financial Regulation’s Order”) against Taylor, Bean & Whitaker. See Emergency Order to Cease and Desist and Notice of Rights, attached hereto and incorporated as Exhibit “A”. 5, The Office of Financial Regulation’s Order provided that the emergency cease and desist was being levied against Taylor, Bean & Whitaker because the Office of Financial Regulation “found that an immediate and serious danger to the public welfare flows from the unlawful tivities of Taylor Bean & Whitaker Corp.” Bold emphasis added. See Emergency Order to Cease and Desist and Notice of Rights at 1. 6. The findings of fact articulated in the Office of Financial Regulation’s Order included, amongst other things, the following: a. That on August 4, 2009 the Federal Housing Administration (hereinafter “FHA”) had suspended Taylor, Bean & Whitaker from originating loans insured by the FHA; b. That on August 4, 2009 the Government National Mortgage Association (hereinafter “Ginnie Mae”) was defaulting and terminating Taylor, Bean & Whitaker as an issuer in Ginnie Mae's mortgage backed security program as well as Taylor, Bean & Whitaker's ability to continue to service Ginnie Mae securities; c. That on August 4, 2009 the Mortgage Review Board of the U.S. Department of Housing and Urban Development notified Taylor, Bean & Whitaker of the immediate suspension of its originating and underwriting approval; d. That several state agencies that regulate banking and mortgage lenders have entered adverse administrative orders acting against the licenses held by Taylor, Bean & Whitaker; and finally¢. That the Office of Financial Regulation found it necessary to take emergency and immediate action against Taylor, Bean & Whitaker to avoid irreparable harm to Florida consumers resulting from “[Taylor, Bean & Whitaker's] ongoing inal fund agreements that it has entered into with Florida luc Joans that have already closed.” Bold emphasis added. See Emergency Order to Cease and Desist and Notice of Rights at 1. 7. The Office of Financial Regulation ultimately stripped Taylor, Bean & Whitaker of its license to engage in business in the State of Florida based upon the fraudulent actions perpetrated by it in originating loans to consumers such as the Defendants. 8. Finally, with respect to the current named Plaintiff, while Plaintiff's name is asserted in the caption of several recent court filings, nowhere in the body of Plaintif's complaint or in any other pleading or filing does the Plaintiff set off or describe in any way the structure of the entity so described nor does the Plaintiff assert in what capacity does the Plaintiff contend it may avail itself to the jurisdiction of this Court. Nowhere in the body of Plaintiff's complaint does it assert the basis for its entity-existence or explain in any way the form of the entity that presents itself before the court. Moreover, a search of the Florida Division of Corporations reveals that no license, either active or inactive, has ever been issued to the Plaintiff. It is therefore unclear who the Plaintiff even is. STANDARD OF REVIEW 9. Under Florida law, summary judgment is proper if, and only if, based on an examination of evidence, no genuin sue of material fact exists and the movant is entitled to judgment as a matter of law. See The Florida Bar v. Green, 926 So. 2d 1195, 1200 (Fla. 2006); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).10. Furthermore, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, a Court may grant summary judgment if, and only if, “the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(0). 11. Finally, the Court must take all the facts that the non-movant states as true and must draw all reasonable inferences in favor of the non-moving party. See Bradford v. Bemstein, 510 So.2d 1204 (Fla. 2d DCA 1987); Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502 (Fla. Sth DCA 2005). MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S OBJECTION I. The Plaintiff's Motion for Summary Judgment should be denied because ‘equitable defenses are available to the Defendants a, Legal Standards 12, By both statutory order and case law, foreclosure proceedings are actions in equity. See Fla, Stat. §702.01 (2009) (providing, in pertinent part, that “[a}ll mortgages shall be foreclosed in quity.” Bold emphasis added). Swan Landing Development, LLC v. Florida Capital Bank, LA. 19 $0.34 1068, 1072 (Fla. 2d DCA 2009) (providing that “[fJoreclosure of a mortgage is ‘an equitable remedy”). See also, Singleton v. Greymar Assocs., 882 So.2d 1004, 1008 (Fla.2004); Smiley v. Manufa Hous, Assocs. III L ip. 679 So.2d 1229, 1232 (Fla. 2d DCA 1996). 13.Ina wre suit, the existence of a material issue of fact whether an ‘equitable defense is available to the Defendant precludes summary judgment. Cross v. Federal Mortgage Association, 359 So.2d 464 (Fla. 4th DCA 1978). In Cross, the Fourth District held that material issue of fact existed precluding summary judgment as to whether an equitabledefense was available to mortgagors for mortgagee’s failure to follow Department of Housing and Urban Development guidelines. The Fourth District explicitly noted that “a mortgage foreclosure is an equitable action and thus equitable defenses are most appropriate.” Id at 465. Bold emphasis added. 14. Moreover, because foreclosure is an equitable remedy, “[it] may be denied if the holder of the note comes to the court with unclean hands or the foreclosure would be unconscionable.” Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995). b. Argument 15. Here, equitable defenses abound which should preclude an entry of summary judgment in favor of the Plaintiff. 16. Specifically, it is highly questionable whether Taylor, Bean & Whitaker, the original ‘mortgagee and Plaintiff in this case, even had the power to pursue the instant litigation based upon the numerous abuses committed by the firm and highlighted in the Office of Financial Regulation’s Order. 17, Ultimately, Taylor, Bean & Whitaker’s actions against Florida consumers forced the Office of Financial Regulation to suspend its license to engage in business in this State. 18. As the original mortgagee of the subject mortgage, the penalties leveled against Taylor, Bean & Whitaker by both the Florida Office of Financial Regulation and various other state and federal agencies go straight at the heart of the instant litigation which creates the existence of a material issue as to whether an equitable defense is available to the Defendants. The existence of same is grounds for the denial of summary judgment as articulated by the Fourth District in Cross v. Federal Mortgage Association, supra.19. Finally, to grant foreclosure where the original mortgagee and Plaintiff came to this Court with unclean hands would violate the principles laid down by the Fourth District in Knight Energy Services, Ine. v. Amoco Oil Co., supra. WHEREFORE, based upon the foregoing, the Defendants respectfully request this Court deny the Plaintiff its Motion for Summary judgment and any other relief the Court deems just and proper. Il. The Plaintiff's Motion for Summary Judgment Should be Denied Because of its Failure to Pled its Capacity a, Legal Standards 20. Fla. R. Civ. Pro. 1.120(a) provides that [ilt is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. (emphasis added)The initial pleading served on behalf of a minor party shall specifically aver the age of the anc ary. When a party ens rain am anus ae nce eal exes of to sue or. the authority of a tos serene resentative cay that shall ch sh rticulars are ii ret within the Seder Knowledge, Bold: eee added. 21. “Capacity to sue” is an absence of legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties § 31 (1971). This is in contrast to “standing” which requires an entity have sufficient interest in the outcome of litigation to warrant the court's consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla. 4th DCA 1982). 22. The issue of capacity to sue may be raised by motion to dismiss where the defect appears ‘on the face of the complaint. See Hershel California Fruit Products Co. v. Hunt Foods, 111 F.‘Supp. 603 (1975), quoting Cobum v. Coleman 75 F. Supp. 107 (1974); Klebano v, New York Produce Exchange, 344 F.2d (2nd Cir. 1965). 23. The failure to adequately plead capacity has been grounds for dismissals of lawsuits in Florida state courts. See e.g. Asociacion de Perjudiacados v. Citibank, 770 So. 2d 1267 (Fla. 34 DCA 2000) (dis 1g case for lack of capacity as distinguished from lack of standing). 24, Furthermore, the Comment to the Rule (2004 Version), states that “if a party involved in a suit in other than his individual capacity, the capacity in which he is a party should be indicated in the caption and the pleadings.” Bold emphasis added. 25. With respect to corporations, Fla. Stat. $607.0501 (5) provides that “[a] corporation may not maintain any action in a court in this state until the corporation complies with the provisions of this section or s. 607.1507, as applicable, and pays to the Department of State a penalty of $5 for each day it has failed to so comply or $500, whichever is less.” 26. Section 607.0501 requires that the corporation have and continuously maintain in Florida: (1) a registered office; and (2) a registered agent. See Fla, Stat. §607.0501(1). 27. Section 607.1507 requires this same rule for a foreign corporation. See Fla, Stat, §607.1507. 28. . Furthermore, Fla. Stat. §865.09(3) provides that a person may not engage in a business under a fictitious name unless the person first registers with the division by filing a swom statement listing: (a); the name to bbe registered; (b) the mailing address of the business: (c) the name and address of each owner and, if a corporation, its federal employer’s identification number and Florida incorporation or registration number; (d) certification by the applicant that the intention to register such fictitious name has been advertised at least once in a newspaper as defined in chapter 50 in the county where the principal place of ‘business of the applicant will be located; and (e) any other information the division may deem necessary to adequately inform other governmental agencies and the public as to the persons conducting business.29. Finally, although the capacity issue is new, it is important to note that judges in this Circuit (and presumably in other circuits) have routinely recognized the legitimacy of the capacity argument and are routinely granting Defendant's Motion to Dismiss based on these grounds. See HSBC v. Montgomery, Pinellas Case 52-2009-CA-005696; Wachovia_v. Matacchiero, Pinellas Case No. 52-2009-16936-CI-13; Bolin v. HSBC, Pinellas Case 09- 005190-CI-19, b. Argument 30. While the current Plaintiff's name is identified in the caption of several recent court filings, nowhere else in any of the Plaintiff's pleadings is the Plaintiff's entity status or capacity even pled. As a threshold matter, then, itis unclear exactly who the Plaintiff even is 31. Moreover, tothe extent that the Plaintiff is a corporation, the Plaintiff has not indicated in cither the caption or in its pleadings that it has, and has continuously maintained, a registered office and a registered agent in this State. 32. To the extent the Plaintiff argues that it is doing business under a fictitious name, the Plaintif’s pleadings are completely devoid of the swom statement required by such entities under Fla. Stat, §865.09(3). 33. Most importantly, a search of the Florida Division of Corporations reveals that no license, either active or inactive, has ever been issued to the Plaintiff. 34, The Plaintiff's failure to properly identify itself and thus plead its capacity ©. “XYZ, Incorporated is a Delaware registered corporation properly registered as a foreign corporation with the Florida Secretary of State”) prohibits the Plaintiff from asserting that it has established its capacity and it events the Defendant from properly asserting defenses to this action which may prevent this Plaintiff from maintaining the instant lawsuit from the outset.35. Since genuine issues of material fact regarding the Plaintiff's ability to even bring this action before this Court exist, summary judgment at this time would be improper. WHEREFORE, based upon the foregoing, the Defendant respectfully request this Court deny the Plaintiff its Motion for Summary Judgment and any other relief the Court deems just ‘and proper. CERTIFICATE OF SERVICE THEREBY CERTIFY that tre and comes opy ofthe forepng hasbeen fished by U.S. Mail on this aay ‘September, 2010 to KELLY A. CRAMER, Law Offices of Daniel C. Consuegra, 9204 King Palm Drive, Tampa, FL 33619-1328. [ATTHEW D. WEIDNER ‘Attomey for Defendants 1229 Central Avenue St. Petersburg, FL 33705 (727) 894-3159 FBN: 0185957