DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2007-AR17 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-AR17, UNDER THE POOLING AND SERVICING AGREEMENT DATED JUNE 1, 2007, Plaintiff, vs. KYAW HTAY, et. al, Defendant(s). Circuit Court, 20th Judicial Circuit in and for Collier County. Case No. 11-00045-CA. September 29, 2011.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. In paragraph 3 of the Complaint, the Plaintiff alleges:
Plaintiff is entitled to enforce the Promissory Note and Mortgage.
2. This allegation is ambiguous as to whether the Plaintiff is claiming that it is the “holder” of the Note or otherwise entitled to enforce the instrument under Florida Statutes §673.3011.
3. The Plaintiff also does not allege whether it owns the Note and the Mortgage.
4. The Complaint thus fails to meet the threshold for fact pleading set by Florida Rule of Civil Procedure 1.110(b)(2), which requires “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” (Emphasis added.)
5. As to the issue of the Plaintiff’s capacity, Florida Rule of Civil Procedure 1.120(a) provides that
(a) Capacity. It 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. . . . 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 pleaders knowledge.
6. Florida Rule of Civil Procedure 1.110(b)(1) requires that a complaint include a “short and plain statement of the grounds upon which the court’s jurisdiction depends . . . .”
7. The body of the Complaint offers no identification or legal description of the Plaintiff.
8. By failing to properly identify itself in the body of the Complaint, the Plaintiff has not pled that it has the capacity to maintain suit before this Court.
9. The Defendants have properly challenged the Plaintiff’s failure to plead capacity through a specific negative averment pursuant to Rule 1.120(a). The issue of capacity to sue may be raised by motion to dismiss where the defect appears on face of complaint. See Hershel California Fruit Products Co. v. Hunt Foods, 119 F.Supp. 603 (1954), quoting Coburn v. Coleman, 75 F. Supp. 107 (1947).
10. Finally, Plaintiff has attached to the Complaint a document with a separate caption entitled “FLA. R. CIV. P. 1.110 (b) VERIFICATION”.
11. The requirements for verification of residential foreclosure complaints are governed both by Florida Rule of Civil Procedure 1.110(b) and Florida Statutes §92.525(2), which provides that a verification “shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.” See Fla. Stat. §92.525(2).
12. The Plaintiff’s purported verification fails to comply with the clear requirement of the statute because it is not printed at the end of or immediately below the Complaint.
1. Defendants Motion to Dismiss is GRANTED.
2. The Plaintiff’s Complaint is hereby DISMISSED without prejudice.
Online Reference: FLWSUPP 1901DEUT