boa v bernard -- judge wilkes order

8/6/2019 BOA v Bernard -- Judge Wilkes Order

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3/23/20108:18 AM James B. Jett Page 1 IN THE CIRCUIT COURT, FOURTHJUDICIAL CIRCUIT IN AND FORCLAY COUNTY, FLORIDA

BANK OF AMERICA, NAT'L ASSOC. ASSUCCESSORBY MERGER TO LASALLEBANK NAT'L ASSOC., AS TRUSTEE FORCERTIFICATE HOLDERBEAR STEARNSASSET BACKED SECURITIES I LLC, ASSETBACKED CERTIFICATES, SERIES 2007-HE7,

Plaintiff(s),vs.ROBERT BERNARD, et aI.,

Defendant(s).

CASE NO.:DIVISION:

2009-310-CAB

ORDER GRANTING DEFENDANT'SMOTIONTO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT

This mater having come on to be heard upon the Defendant Robert Bernard's Motion toDismiss Plaintiff's SecondAmendedComplaint" and the Court having heard argument of counsel,and otherwise being fully advised in the premises, it is hereby

ORDERED AND ADJUDGED as follows:1. Defendant filed his Motion to Dismiss the Second Amended Complaint in this

foreclosure action based upon the Defendant's failure to plead that it is the "owner" of the note andmortgage.

2. The Plaintiffurges that amere holder ofthenote has standing to pursue a foreclosureaction based upon Chemical Residential Mortg. v. Rector, 742 So. 2d 300 (Fla. pt DCA 1998) andits progeny, such as Philogene v. ABNAmroMortgageGroup, Inc., 948 So.2d 45, 46 (Fla. 4th DAC


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3/23/20108:18 AM James B. Jett Page 2 2006). The Plaintiffs argument is without merit. The Rector opinion was premised upon thedefault of the defendant, as made clear by the following language:

We find that the complaint properly stated a cause of action forforeclosure by the holderofthe note andmortgage.When they [TheRectors] did not timely respond to the complaint, theappellees/mortgagees waived any denial of its allegations that theappellant was the owner and holder of the note and mortgage andthat the appellees had defaulted on the note and mortgage.

Rector at 300 (emphasis added). That is, what Rector and its progeny stand for is the propositionthat when a plaintiffhas alleged it is the "owner and holder" of the note and the defendant defaults,that the defendant cannot later claim the plaintiff was not the owner of the note because of thedefendant's default.

3. Likewise any reliance on Mortgage Electronic Registration Systems, Inc. v. Azize"965 So. 2d 151 (Fla. 2d DCA 2007), for the proposition that a mere holder is entitled to forecloseon a mortgage is also misplaced. InAzize, the plaintiffalleged it was the "owner and holder" of thenote. The Azize decision merely addressedwhether a legal ownership interestwas sufficient in theabsence of a lack of beneficial ownership, concluding that legal ownership was sufficient.

4. It is clear that in order to state a cause of action for foreclosure, the Plaintiffmustplead that it "owns and holds" the note and mortgage. See Your Constr. Center, Inc. v. Gross, 316So. 2d 596 (Fla. 1975)"([W]hen plaintiff files his complaint, he must necessarily allege he is theowner andholder ofthe note andmortgage inquestion. 22Fla.Jur., Mortgages 314 (1958). Should

defendants have any allegation to the contrary they may join issue on it, and obtain adjudication asto the ownership."); LawOffice ofDavid 1. Stern, P.A. v. Sec. Nat'l Servicing Corp., 969 So. 2d 962(Fla. 2007)(Lewis, C.J., concurring in result only)("Amortgage foreclosure actionrequires only that

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3/23/20108:18 AM James B. Jett Page 3 the claimant be the owner and holder of the note and mortgage and that the mortgagee has defaultedon that note and mortgage.") citing Chemical Residential Mortgage v. Rector, 742 So. 2d 300, 300(Fla. 1st DCA 1998); BAC Funding Consortium Inc. v. Jean-Jacques, - So.3d -, 35 Fla. L.WeeklyD 369 (Fla. 2dDCA February 12, 201 O)(In reversing summary judgment stating: "Further,it did not file any supporting affidavits or deposition testimony to establish that it owns and holdsthe note andmortgage. Accordingly, the documents before the trial court at the summary judgmenthearing did not establish U.S. Bank's standing to foreclose the note and mortgage....")(emphasisadded).; Form 1.944, Florida Rules of Civil Procedure; Florida Supreme Court's AdministrativeOrder No. AOSC09-54, In Re Final Report and Recommendations on Residential MortgageForeclosure Cases (discussing issues of the underlying ownership ofnotes as it relates to documentexchange for managed mediation program in foreclosure cases).

5. The Defendant further argues that by pleading "it is entitled to enforce the note andmortgage" that it is not necessary for it to make any allegations regarding ownership. However,this argument ignores the requirement for a plaintiffto plead ultimate facts in its complaint. To theextent that the Defendant relies on this allegation to prove its ownership of the note, the allegationis an impermissible pleading ofa legal conclusion. See Maiden v. Carter, 234 So. 2d 168, 170 (Fla.1stDCA 1970) ("It is a fundamental principle ofpleading that the complaint, to be sufficient, mustallege ultimate facts as distinguished from legal conclusions which, if proved, would establish acause of action for which reliefmay be granted.If); Agrofollajes v. E.!. Du Pont de Nemours & Co.,- So.3d - , 34 Fla. L. Weekly D 2578 (Fla. 3rd DCA Dec. 16, 2009) citingMaiden, supra. To theextent that the Plaintiff suggests that this allegation is sufficient to allege a third-party owner hasauthorized it to bring this action, this argument assumes that status of owner and holder of the note

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3/23/20108:18 AM James B. Jett Page 4

,2010.

can be bifurcated, and that a cause of action can be brought jointly by the owner and by the separateholder. Even if this is the case, the third-party owner would be a real party in interest who musteither bejoined in the action, or, the holder would other be required to fall within the list ofpartiesable to bring the claim on behalfofthe owner in its ownname byvirtueof the plain language ofRule1.120, FloridaRules ofCivil Procedure. The Plaintiffhas failed to allege any allegation that it fallswithin the list ofparties able to bring the claim on behalfof the owner in its ownname by virtue ofthe plain language ofRule 1.120.

6. Accordingly, the Plaintiff s failure to allege that it is the owner of the note in theinstant case is fatal to its ability to state a cause of action for foreclosure.

7. Accordingly, Defendants' Motion to Dismiss the Second Amended Complaint isGRANTED without prejudice.

8. IfPlaintiffwishes to proceed with this action, Plaintiffmust file a Third AmendedComplaint within thirty (30) days from the date ofthis Order.

9. Defendant shall have thirty (30) days following the receipt of the Third AmendedComplaint to file a response thereto.

DONE AND ORDERED in Chambers, in Green Cov Springs, Clay County, Florida, thisZ ~ a y of !tAd

Copies:Scott Griffith, EsquireFlorida Default Law GroupPost Office Box 25018

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3/23/20108:18 AM James B. Jett Page 5Tampa, Florida 33622-5018.Steven P. Combs, EsquireSmith Greene & Combs3217 Atlantic BoulevardJacksonville, Florida 32207Counsel for Defendants

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boa v bernard -- judge wilkes order

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