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IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA

IN AND FOR MIAMI DADE COUNTY

CASE NO.: 2008-CA-078533 [13]

MARATHON STRUCTURED,

Plaintiff
v.

AUDIN LOUIS, ET AL.,

Defendants
___________________________________/

DEFENDANT’S OBJECTION and MOTION TO STRIKE PLAINTIFF’S


EX-PARTE MOTION FOR SUBSTITUTION OF PARTY PLAINTIFF

COMES NOW, the Defendant AUDIN LOUIS by and through the

undersigned counsel and files this Objection and Motion to Strike Plaintiff’s Ex-

Parte Motion for Substitution of Party Plaintiff, and in support states:

1. The Plaintiff in this action is MARATHON STUCTURED and not

Marathon Structured Asset Solutions Trust.

2. Although at all the time of filing its Complaint, Plaintiff, MARATHON

STRUCTED maintained that it was the owner of the subject Note and Mortgage.

(Complaint, ¶¶ 3 & 12); it admitted in Defendant’s Request for Admission that

MARATHON STRUCTURED ASSET SOLUTIONS TRUST was the owner and

holder of the subject Note.

3. MARATHON STRUCTERED is not the same company as

MARATHON STRUCTURED ASSET SOLUTIONS TRUST.

4. Based on the facts above, Plaintiff is seeking to establish an

entirely new party as plaintiff and seeks to change the entire party responsible for

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bringing the foreclosure.

6. In truth, Plaintiff’s Complaint should have been dismissed as it did

not own or hold the note and mortgage it seeks to foreclosure as admitted by

Plaintiff MARATHON STRUCTURED in its Response to Request for Admissions.

THE PROPER PROCEDURE WHEN NAMING A NEW PARTY


IS TO DISMISS AND REFILE THE ACTION

8.. When naming an entirely new party to an action and dropping all

original parties, the appropriate process is to dismiss and refile the action. See

Trawick's Florida Practice and Procedure, 2007 edition, §4:11 at 64.

9. Substitution is not the appropriate remedy when the wrong party

brings an action, but instead, the proper procedure in this event is to dismiss the

action without prejudice under rule 1.420(a)(1) and to refile it naming the proper

parties. Id.

10. The cases allowing an amendment due to a misnomer are

distinguishable from the case at bar. First, this is not a case where the entity

suing and the entity that intended to sue were related companies functioning

through the same management structure. See e.g. Sexton v. Panning Lumber

Co., 260 So. 2d 898, 899, 903 (Fla. 4th DCA 1972). Nor is this a case where the

plaintiff sued under a fictitious name. See e.g. Royal Atlantic Health Spa, Inc. v.

B.L.N., Inc., 677 So. 2d 1385, 1386 (Fla. 4th DCA 1996). Third, this is not a case

where the error was a simple typographical error or transposition of letters.

MARATHON STRUCTURED and MARATHON STRUCTURED ASSET

SOLUTIONS TRUST are two entirely different corporation with no connection

whatsoever other than a similarity in the name.

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11. Naming two entirely different companies that do not share a close

alliance and that are completely separate and unrelated falls squarely outside of

the “misnomer” definition as defined by the court.

12. As stated above, MARATHON STRUCTURED has no connection

to the Note and Mortgage which was subsequently transferred and assigned to

KONDAUR CAPITAL CORPORATION by MARATHON STRUCTURED ASSET

SOLUTIONS TRUST. Therefore changing the name from MARATHON

STRUCTURED to KONDAUR CAPITAL CORPORATION should be considered

as substituting an entirely new party and should not be permitted.

ASSUMING ARGUENDO THAT THE PROPER PROCEDURE WAS


FOLLOWED, DEFENDANT MOVES TO DISMISS PLAINTIFF=S COMPLAINT,
OR IN THE ALTERNATIVE, MOVES FOR A MORE DEFINITE STATEMENT

18. The Defendants, by and though their undersigned attorney, files

this motion to dismiss the Plaintiff=s Complaint, or in the alternative, for more

definite statement, pursuant to Rules 1.210(a), 1.130(a), 1.140(b)(6), 1.140(b)(7),

and 1.140(e) of the Florida Rules of Civil Procedure and states:

19. The Defendant is the owner of the property which is the subject of

this Complaint.

20. The Defendant request the Court dismiss this action pursuant to

Rule 1.210(a) and 1.140(7), because it appears on the face of the Complaint that

a person other than the Plaintiff is the true owner of the claim sued upon and that

the Plaintiff is not the real party in interest and is not shown to be authorized to

bring this action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.

S.D. Fla. 1985) (Finding that “it is axiomatic that a suit cannot be prosecuted to

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foreclose a mortgage which secures the payment of a promissory note, unless

the Plaintiff actually holds the original note,” citing Downing v. First National Bank

of Lake City, 81 So. 2d 486 (Fla. 1955)). See also Davanzo v. Resolute

Insurance Company, et al., 346 So. 2d 1227, 1228 (Fla. 3d DCA 1977) (Holding

that “one who holds legal title to a mortgaged property is an indispensable party

in suit to foreclose a mortgage”).

21. The Plaintiff’s complaint is so vague and ambiguous the

Defendants cannot reasonably be required to frame a responsive pleading

because the complaint fails to attach any document to identify who or what

MARATHON STRUCTURED is; or who MARATHON STRUCTURED ASSET

SOLUTIONS TRUST or KONDAUR CAPITAL CORPORATION are; nor can

Defendant determine from the Plaintiff’s complaint upon what facts the Plaintiff is

claiming to be the real party in interest with standing to pursue this foreclosure

action on a promissory note which is required by the Florida Rules of Civil

Procedure.

22. Plaintiff attaches documents to its complaint that identify an entity

that is not the Plaintiff as the owner and holder of the mortgage and these

documents conflict with the Plaintiff’s allegations of material facts in the complaint

as to ownership of the subject note and mortgage.

23. The Plaintiff’s complaint fails to contain sufficient facts to establish

who the Plaintiff is or the plaintiff’s relationship to the Defendant, Audin Louis, or

the Plaintiff’s relationship or connection to the claim for foreclosure of a

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promissory note, including the failure to allege an assignment/endorsement of

the mortgage and note to the plaintiff.

24. Fla. R.Civ. P. Rule 1.130(a) requires a Plaintiff to attach copies of

all Abonds, notes, bills of exchange, contracts, accounts, or documents upon

which action may be brought to its complaint. The Plaintiff has attached a copy

of a mortgage payable to Option One Mortgage Corporation, Inc. The

documents attached to the Plaintiff’s Complaint conflict with the allegations in

Paragraph 3 & 12 of the Plaintiff’s Complaint in which it alleges it is the owner of

the subject Mortgage and Mortgage Note.

25. Fla. R. Civ. P. Rule 1.310(b) provides that all exhibits attached to

a pleading shall be considered a part of the pleading for all purposes. It appears

on the face of Plaintiff’s Complaint that it is not the proper party to bring this

action.

26. In this case, Plaintiff’s allegations of material fact claiming it is the

owner of the subject note are inconsistent with the documents attached to the

Complaint as well as inconsistent with the Plaintiff’s response to Request for

Admissions and Assignment of Mortgage Further, Plaintiff has alleged it does

not have the original promissory note. When exhibits are inconsistent with the

plaintiff’s allegations of material fact as to who the real party in interest is, such

allegations cancel each other out. Fladell v. Palm Beach County Canvassing

Bd., 772 So. 2d 1240, 1242 (Fla. 2000); Greenwald v. Triple D Properties, Inc.,

424 So. 2d 185, 187 (Fla. 4th DCA 1983).

27. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in


pertinent part:

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Every action may be prosecuted in the name of
the real party in interest, but a personal representative,
administrator, guardian, trustee of an express trust, a party
with whom or in whose name a contract has been made for
the benefit of another, or a party expressly authorized by
statute may sue in that person=s own name without joining
the party for whose benefit the action is brought . . .

The Plaintiff in this action meets none of these criteria.

28. Plaintiff does not have standing to pursue this action. “Standing

depends on whether a party has a sufficient stake in a justiciable controversy,

with a legally cognizable interest which would be affected by the outcome of the

litigation.” Nedeau v. Gallagher, 851 So. 2d 214, 215 (Fla.1st DCA 2003).

29. “Standing encompasses not only the ‘sufficient stake’ definition, but

the at least equally-important requirement that the claim be brought by or on

behalf of one who is recognized by the law and a ‘real party in interest,’ that is

‘the person in whom rests, by substantive law, the claim sought to be enforced.’”

Kumar Corp. v. Nopal Lines, 462 So. 2d 1178, 1183 (Fla. 3d DCA 1985).

30. Further, Defendant move to dismiss Plaintiff’s request for entry of

judgment confirming its right to enforce the lost note as it fails to state a cause of

action pursuant to the requirements of Fla. Stat. ' 673.3091.

31. Plaintiff cannot use § 673.3091 of Florida Statute to enforce this

Note because Chapter 673 only applies to negotiable instruments. Plaintiff has

not alleged the lost Note was a negotiable instrument.

32. By failing to comply with Fla. R. Civ. P. 1.130(a), the Plaintiff can

not comply with Florida Statute § 673.3091. Even if Plaintiff could allege that the

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Note was a negotiable instrument and that § 673.3091, Fla. Stat. was applicable,

Plaintiff has failed to allege one or more elements of that section.

33. Fla. Stat. ' 673.3091 sets out the prerequisites for pleading a

claim for the enforcement of a lost, destroyed, or stolen instrument and allows:

(1) A person not in possession of an instrument


is entitled to enforce the instrument if:
(a) The person seeking to enforce the
instrument was entitled to enforce the
instrument when loss of possession occurred,
or has directly or indirectly acquired ownership
of the instrument from a person who was
entitled to enforce the instrument when loss of
possession occurred;
(b) The loss of possession was not the result of
a transfer by the person or a lawful seizure;
and
(c) The person cannot reasonably obtain
possession of the instrument because the
instrument was destroyed, its whereabouts
cannot be determined, or it is in the
wrongful possession of an unknown person or
a person that cannot be found or is not
amenable to service of process.

34. The documents attached to the Complaint do not indicate that the

Plaintiff was ever entitled to enforce the instrument and therefore the Plaintiff can

not allege that it was entitled to enforce the note when the loss of possession

occurred or that it directly or indirectly acquired ownership of the instrument from

a person who was entitled to enforce it when it was lost.

WHEREFORE, Audin Louis requests this honorable Court to:

a. Set aside Plaintiff’s Order Granting Substitution of Parties.

b. Dismiss the Plaintiff’s Complaint,

c. Alternatively, to order the Plaintiff to make its Complaint more definite

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and certain in the particulars identified hereinabove,

And for an award of attorney’s fees and for all other relief to which this Defendant

proves himself entitled.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded via
U.S. Mail to: Angela Vittiglio, Esq., MARSHALL C. WATSON, PA, 1800 NW 49 Street,
Ste: 120, Ft. Lauderdale, Fl 33309 and Justin B. Lightly, Esq., FLORIDA
FORECLOSURE ATTORNEYS PLLC, 601 Cleveland Street, Ste: 690, Clearwater, Fl
33755 this September 20, 2010.

Carol C Asbury, Esquire


3601 W. Commercial Blvd Suite 18
Fort Lauderdale, FL 33309
Tel: (954) 677-8888

By: ____________________________
Carol C. Asbury, Esq.
Florida Bar: 393665