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Motion To Dismiss - Capacity US Bank - PITA NoA Cost Bond
Motion To Dismiss - Capacity US Bank - PITA NoA Cost Bond
PLAINTIFF,
v.
ANTHONY J. PITA,
DEFENDANT.
_________________________________________/
through the undersigned counsel, and respectfully files with this Court DEFENDANT’S
MOTION TO DISMISS ACTION, pursuant to Rules 1.120(a), 1.140(b)(6), and 1.120(c), Fla. R.
Civ. P., and precedent case law, and in support 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 U.S. BANK NATIONAL ASSOCIATION (hereinafter
“Plaintiff”). The Plaintiff initiated this action when it filed its Complaint on or about June 29,
2009.
3. There are, however, three defects in the Plaintiff’s Complaint which prove fatal to its
cause. The facts surrounding each defect are explained in detail below.
Defect I –Failure to Plead Capacity
4. To begin, 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
5. Additionally, 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.
6. Therefore, the Plaintiff has failed to plead its capacity to the extent necessary to show the
7. The Plaintiff’s failure to plead its standing is bundled up in its failure to plead that it
owns the subject note and mortgage which it has foreclosed upon.
8. With respect to ownership of the note and mortgage, it is imperative that this Court note
that the Plaintiff’s Complaint is a one-count in rem action in equity to foreclose a mortgage and
not an in personam action at law for enforcement of the note and for money damages. See
SunTrust Mortgage v. Fullerton, 16 Fla. L. Weekly Supp. 1146b (6th Judicial Circuit, Pinellas
9. In paragraph six (6) of its Complaint, Plaintiff alleges that it is the legal and equitable
owner of the debt “via an assignment from Taylor, Bean & Whitaker Corp.” However, the
10. To begin, the assignment is executed by “American Home Mortgage Servicing, Inc. as
[Taylor, Bean’s] true and lawful attorney-in-fact”. However, since: (1) American Home
Mortgage is not a natural person; (2) there is no allegation that American Home Mortgage is a
financial institution; and (3) there is no allegation that American Home Mortgage has trust
powers and is authorized to conduct trust business in this State, the assignment is invalid and
therefore a nullity.
11. Because the assignment is a nullity, Plaintiff’s allegation that it owns the subject debt via
this purported assignment is also a nullity. Consequently, it has failed to plead that it both owns
and holds the note and mortgage in question and has therefore failed to meet the standing
12. As such, the Plaintiff has failed to state a cause of action upon which relief may be
13. While the Plaintiff alleges generally in paragraph 9 of its Complaint that “[a]ll conditions
precedent to the acceleration of the Note and Mortgage and/or the filing of the instant foreclosure
complaint has been fulfilled”, the mortgage attached to the Plaintiff’s Complaint materially
15. Despite this clear contractual language, the Plaintiff has failed to either: (1) attach a copy
of the requisite notice as an exhibit to its Complaint; or (2) provide a statement of ultimate fact
STANDARD OF REVIEW
17. “The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good
18. In ruling on a defendant’s motion to dismiss, a trial court is limited to the four corners of
the Complaint, and it must accept all the allegations in the Complaint as true. See Lutz Lake Fern
Rd. Neighborhood Groups, Inc. v. Hillsborough County, 779 So.2d 380, 383 (Fla. 2d DCA
2000).
19. However, exhibits attached to a Complaint are a part of the Complaint. See Bott v. City
of Marathon, 949 So.2d 295 (Fla 3rd DCA 2007) (“when considering a motion to dismiss, a trial
court is required to consider any exhibit attached to, or incorporated in the pleading”). See also
Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3rd DCA 1971) (stating “[i]n
considering a motion to dismiss the trial court was required to consider the exhibit . . . attached
to and incorporated in the amended complaint” and quoting Florida Rule of Civil Procedure
1.130(b), providing that “[a]ny exhibit attached to a pleading shall be considered a part thereof
20. As such, an exhibit attached to a Complaint is a part of the Complaint and may be
considered when ruling on a motion to dismiss and considering exhibits attached to a Complaint
21. Further, exhibits attached to a Complaint must agree with the allegations of the
Complaint, and where to two do not agree, the exhibits control. See also, Geico Gen. Ins. Co.
V. Graci, 849 So.2d 1196 (Fla. 4th DCA 2003) and Ginsberg v. Lennar Fla. Holdings, Inc. 645
So.2d 490, 494 (Fla. 3d DCA 1994) (where exhibits contradict complaint allegations, plain
meaning of exhibits control). Harry Pepper & Associates V. Lasseter, 247 So.2d 736 (Fla. 3d
DCA 1971) and see Hlt Application Sys. V. Hartford Life, 381 So.2d 294 (Fla. 1st DCA 1980).
I. The Plaintiff’s action must be dismissed because of its failure to plead capacity
to maintain the instant litigation
a. Legal Standards
22. “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.
v. Martin Cos., 881 So. 2d 677, 680 (Fla. 5th DCA 2004).
23. “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.
24. “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. 5th DCA 2003) (citing
Arky, Freed, Stearns, Watson, Greer Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537
[i]t 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 party, the capacity of any party to sue or be sued, or the authority of a
party to sue or be sued in a representative capacity, that party shall do so by
specific negative averment which shall include such supporting particulars as
are peculiarly within the pleader's knowledge. Bold emphasis added.
26. Fla. R. Civ. Pro. 1.110(b) requires that a complaint include a “short and plain statement
27. “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).
28. 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 Coburn v. Coleman 75 F. Supp. 107 (1974); Klebano v. New York
29. 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. 3d
DCA 2000) (dismissing case for lack of capacity as distinguished from lack of standing).
30. 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
31. “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. 5th 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
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-
33. 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
[t]his is a very, very simple pleading matter than can be easily corrected, but must
be correct because I 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…I 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-CI-15 (Hon. William P. Levens/October 28, 2010).
b. Argument
34. Here, while the Plaintiff’s name is identified in the caption of its Complaint, nowhere else
the Plaintiff’s pleading 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
35. 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
has not plead that it has the “absence of legal disability to sue”.
36. Rule 1.120(a) provides for the specific procedures defense counsel must use to challenge
the issue of the Plaintiff’s capacity, i.e. specific negative averment. The Defendant therefore
specifically asserts that the Plaintiff has failed to plead any facts which identify its entity-status
and therefore it cannot claim that it has properly invoked the jurisdiction of this Court within the
37. The Plaintiff’s failure to properly identify itself and thus plead its capacity (i.e. “XYZ,
with the Florida Secretary of State”) prohibits the Plaintiff from asserting that it has established
its ability to invoke this Court’s jurisdiction and it events the Defendant from properly asserting
defenses to this action which may prevent this Plaintiff from maintaining this instant suit from
the outset.
WHEREFORE, based upon the foregoing, the Defendant respectfully requests this
Court dismiss the instant action, award attorney’s fees to the Defendant pursuant to Fla. Stat.
§57.105(7) and the subject loan documents for such fees so wrongfully incurred by the necessity
of defense, and any other relief the Court deems just and proper.
II. The Plaintiff’s action must be dismissed because it has failed to plead it has
standing to sue
a. Legal Standards
38. Fla. R. Civ. Pro. 1.140(b)(6) provides, in pertinent part, that “the following defenses may
be made by motion at the option of the pleader…failure to state a cause of action…A motion
making any of these defenses shall be made before pleading if a further pleading is permitted.”
39. Standing 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.
Authority v. IMC Phosphates, 18 So.3d 1079 (Fla. 2d DCA 2009); Hillsborough County v.
Florida Restaurant Ass’n, Inc., 603 So.2d 587 (Fla. 2d DCA 1992); Miller v. Publicker
41. Fla. R. Civ. Pro. 1.110(b) provides, in pertinent part, that “[a] pleading which sets forth a
claim for relief…must state a cause of action and shall contain…a short and plain statement of
42. With respect to mortgage foreclosures“[t]he 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.” Verizzo v. Bank of N.Y., 28 So. 3d 976, 978 (Fla. 2d DCA 2010). Bold
emphasis added. See also South Bay Lakes Homeowners Association, Inc. v. Wells Fargo Bank.
N.A., Case No. 2D10-148 (Fla. 2d DCA February 18, 2011); Lizio v. McCullom, 36 So. 3d 927
43. Additionally, “[w]here the defendant denies that the party seeking foreclosure has an
ownership interest in the mortgage, the issue of ownership becomes an issue the plaintiff must
prove.” Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010) (quoting Carapezza v.
44. This is because “[t]o grant summary judgment of foreclosure in favor of the
[plaintiff], the trial court would have to find, among other things, that the [plaintiff] owned
the mortgage and had performed all conditions precedent, if any to enforce the mortgage.”
Dykes v. Trustbank Sav., FSB, 567 So. 2d 958, 959 (Fla. 2d DCA 1990). Bold emphasis added.
45. The standing requirement that the foreclosing party must both own and hold the mortgage
ownership are two different concepts; by way of example, thief who steals a check payable to
bearer becomes holder of the check, but does not become owner of it. See Fla. Stat. §673.2031,
Comment 1.
47. In fact, Fla. Stat. §673.2031, Comment 1 expressly provides that “[a]lthough transfer of
an instrument might mean in a particular case that title to the instrument passes to the transferee,
that result does not follow in all cases. The right to enforce an instrument and ownership of
48. Finally, with respect to the designated title “attorney-in-fact”, Fla. Stat. §709.08(2)
the attorney in fact must be a natural person who is 18 years of age or older
and is of sound mind, or a financial institution, as defined in chapter 655, with
trust powers, having a place of business in this state and authorized to conduct
trust business in this state.
state or federal savings or thrift association, bank, savings bank, trust company,
international bank agency, international banking corporation, international branch,
international representative office, international administrative office,
international trust company representative office, or credit union, or an agreement
corporation operating pursuant to s. 25 of the Federal Reserve Act, 12 U.S.C. ss.
601 et seq. or Edge Act corporation organized pursuant to s. 25(a) of the Federal
Reserve Act, 12 U.S.C. ss. 611 et seq.
b. Argument
50. Here, while the Plaintiff has alleged that it is the legal and equitable owner of the note
and mortgage based upon an assignment from Taylor, Bean, the assignment attached to its
American Home Mortgage is either: (1) a natural person over the age of 18; (2) a financial
institution as defined in Fla. Stat. §655.005(h); or (3) authorized to conduct trust business in this
State.
52. American Home Mortgage therefore fails to meet the statutory requirement of who may
be designated an attorney-in-fact. Because it has failed to meet this statutory definition, the
assignment is a nullity and Plaintiff’s allegation that it owns the subject debt via this assignment
is also a nullity.
53. Moreover, it is imperative that this Court note that the mere existence of an endorsement
on the note is not proof that the Plaintiff owns the note. It merely represents that the Plaintiff,
like the thief who steals the blank check, has the right to enforce the note.
54. This distinction is important because, as noted in paragraph 8, supra, this is an action in
equity to foreclose a mortgage and not an action at law for enforcement of the note.
55. Therefore, the Plaintiff has failed to include in its Complaint a short and plain statement
of the ultimate facts showing why it is entitled to foreclose the subject mortgage. Dismissal of
WHEREFORE, based upon the foregoing, the Defendant respectfully requests this
Court dismiss the instant action, award attorney’s fees to the Defendant pursuant to Fla. Stat.
§57.105(7) and the subject loan documents for such fees so wrongfully incurred by the necessity
of defense, and any other relief the Court deems just and proper.
III. The Plaintiff’s action must be dismissed because of its failure to comply with the
notice provision of the subject mortgage
a. Legal Standards
56. Fla. R. Civ. Pro. 1.120(c) provides, in pertinent part, that “[i]n pleading the performance
57. Moreover, nonperformance of a condition precedent must be pled “specifically and with
particularity,” or it will be deemed waived. See Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991).
58. However, a Plaintiff’s cause of action does not accrue until if fulfills conditions precedent
to maintaining that cause of action. See Pro. Plastering V. Bridgeport, 940 So.2d 444 (Fla. 5th
DCA 2006), quoting Bridgeport, Inc. V. Tampa Roofing Co., 903 So.2d 306 (Fla. 2d DCA 2005)
(finding that failing to fulfill notice requirements of statute was prerequisite to maintaining suit
for recovery).
59. Assuming that the Defendant has made a specific denial of a condition precedent to a
contract, the burden reverts to the Plaintiff to prove the satisfaction of the condition precedent.
See Griffin v. American General Life and Acc. Ins. Co., 752 So.2d 621 (Fla. 2 DCA 1999).
60. With respect to mortgage foreclosures, in Rashid v. Newberry Federal Savings & Loan
Association, 526 So. 2d 772 (Fla. 3d DCA 1988), the Third District held that
In Rashid v. Newberry Federal Savings & Loan Ass'n, 502 So.2d 1316 (Fla. 3d
DCA 1987), we reversed a final summary judgment in favor of the mortgagee
because of its failure to give the required notice of default to the mortgagor prior
to the institution of the mortgage foreclosure proceeding. Implicit in our opinion
was the requirement that upon remand the proceeding be dismissed.
Bold emphasis added. Consequently, the failure to give the required notice of default is not only
grounds for the denial of summary judgment, but is also grounds for dismissal of the entire
action.
b. Argument
61. A pre-suit condition precedent, namely the failure of the Plaintiff to comply with the
notice provision of the subject mortgage, has not been met which warrants the dismissal of the
instant action.
63. Notwithstanding the language of this paragraph, the Plaintiff has failed to either: (1)
attach a copy of the requisite notice as an exhibit to its Complaint; or (2) provide a statement of
ultimate fact that purports to show that the requisite notice as given.
64. As the Defendant has now made a specific denial of a condition precedent to the alleged
contract between the Plaintiff and the Defendant, the burden reverts to the Plaintiff to prove the
satisfaction of same which it cannot do within the four corners of the Complaint.
65. Consequently, dismissal of the action is warranted based upon the authority of Rashid,
supra.
WHEREFORE, based upon the foregoing, the Defendant respectfully requests this
Court dismiss the instant ACTION, award attorney’s fees to the Defendant pursuant to Fla. Stat.
§57.105(7) and the subject loan documents for such fees so wrongfully incurred by the necessity
of defense, and any other relief the Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
U.S. Mail on this ____ day of May, 2011 to JESSICA CONTE, Esq., Attorney for Plaintiff,
Shapiro, Fishman & Gache, LLP, 4630 Woodland Corporate Blvd., Suite 100, Tampa, FL
33614.
By:__________________________
MICHAEL P. FUINO, Esq.
Matthew D. Weidner, P.A.
Attorney for Defendant
1229 Central Avenue
St. Petersburg, FL 33705
(727) 894-3159
FBN: 84191
IN THE CIRCUIT COURT OF THE 13TH JUDICIAL CIRCUIT,
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
PLAINTIFF,
v.
ANTHONY J. PITA,
DEFENDANT.
_________________________________________/
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
U.S. Mail on this ____ day of May, 2011 to JESSICA CONTE, Esq., Attorney for Plaintiff,
Shapiro, Fishman & Gache, LLP, 4630 Woodland Corporate Blvd., Suite 100, Tampa, FL
33614.
By:__________________________
MICHAEL P. FUINO, Esq.
Matthew D. Weidner, P.A.
Attorney for Defendant
1229 Central Avenue
St. Petersburg, FL 33705
(727) 894-3159
FBN: 84191
IN THE CIRCUIT COURT OF THE 13TH JUDICIAL CIRCUIT,
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
PLAINTIFF,
v.
ANTHONY J. PITA,
DEFENDANT.
_________________________________________/
COMES NOW the Defendant ANTHONY J. PITA (hereinafter “Defendants”), by and through
undersigned counsel MATTHEW D. WEIDNER, and hereby requests that his attorney of record
be listed as
MATTHEW D. WEIDNER
Attorney for Defendant
1229 Central Avenue
St. Petersburg, FL 33705
(727) 894-3159
FBN: 0185957
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
U.S. Mail on this ____ day of May, 2011 to JESSICA CONTE, Esq., Attorney for Plaintiff,
Shapiro, Fishman & Gache, LLP, 4630 Woodland Corporate Blvd., Suite 100, Tampa, FL
33614.
By:__________________________
MATTHEW D. WEIDNER, Esq
Matthew D. Weidner, P.A.
Attorney for Defendant
1229 Central Avenue
St. Petersburg, FL 33705
(727) 894-3159
FBN: 0185957