April 21, 2011
Judge Lynn Tepper of the Pasco County (6th Judicial Circuit), Florida Circuit Court has dismissed, on the same day, two separate foreclosure actions filed by SunTrust. Both of the March 15, 2011 Orders require SunTrust, on the filing of any Amended Complaint, to do the following:
(a) Plead a chain of ownership and holdership to establish its standing to sue at the inception of the case, and in so doing, SunTrust must remedy the inconsistencies contained in the original Complaint; and
(b) Plead its capacity to sue and its ability to maintain an action within the Court’s jurisdiction; and
(c) If SunTrust is not the owner of the note, it must specifically plead ultimate facts identifying the owner and SunTrust’s authority to act as representative for said owner, attaching proof of said representative authority; and
(d) If SunTrust has accelerated the note at issue it must attach a copy of the notice of acceleration upon which it relies; and
(e) If not previously filed, SunTrust must post the required cost bond (under the Florida statute cited.)
The Order also and further requires SunTrust to comply with the amended version of Rule 110(b) of the Florida Rules of Civil Procedure and Florida Statute 92.525 which requires that the Amended Complaint be properly verified as part of the Complaint and not as a separate pleading.
Bravo and kudos to Judge Tepper for: (i) upholding the form and substance requirements of verification of mortgage foreclosure actions enunciated by the Supreme Court of Florida and Florida decisional law; (ii) upholding the ultimate fact pleading requirements for civil cases in Florida; and (iii) requiring SunTrust to plead facts to establish standing to sue at the outset of the case, and not by post-filing “cleanup” or other method. We are currently representing borrowers who are in foreclosure litigation with SunTrust or who have been threatened with foreclosure by SunTrust where SunTrust has admitted that it does not own the note and where the note is (allegedly) owned by FNMA, with SunTrust claiming that it has “authority” to act for FNMA as alleged “owner” of the note.
The Orders were entered in Pasco County, Florida case numbers 2010-CA-1339 ES and 51-10-CA-1306 ES. We thank one of our dedicated readers for providing this important update in Florida.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com