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IndyMac Rogers Pinellas

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rago62000
The court granted the defendant's motion to dismiss because the plaintiff, IndyMac Federal Bank, failed to establish that it had standing to bring the foreclosure case. Specifically, the documents showed the note was endorsed to another party, Citibank, and no assignment of the mortgage to IndyMac was presented. The plaintiff was given 20 days to file an amended complaint to properly establish it was the holder of the note and entitled to bring the case.

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93 views3 pages

IndyMac Rogers Pinellas

Uploaded by

rago62000
The court granted the defendant's motion to dismiss because the plaintiff, IndyMac Federal Bank, failed to establish that it had standing to bring the foreclosure case. Specifically, the documents showed the note was endorsed to another party, Citibank, and no assignment of the mortgage to IndyMac was presented. The plaintiff was given 20 days to file an amended complaint to properly establish it was the holder of the note and entitled to bring the case.

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Attribution Non-Commercial (BY-NC)
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IN CIRCUIT COURT OF THE SIXTH JUDCICAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

INDYMAC FEDERAL BANK, F.S.B. FIKI A


INDYMACBANK, FSB
PLAINTIFFF CASE NO. 08-1 5958-CI-20

V. RECEIVED
JOHN DAVID ROGERS, ET.AL MAR 032010
____~D=E=F~EN~D~AN~T____________~I
BY:::
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

THIS MATTER, having come on consideration from the Defendant's Motion to

Dismiss, submitted by counsel for Defendant Matthew D. Weidner, Esq., this Court,

having reviewed the file and after accepting the arguments of counsel it is hereby,

ORDERED AND ADJUDGED that:

I. Counsel for Defendant in his Motion to Dismiss argued that the case should

be dismissed because the Plaintiff failed to attach a copy or any evidence of the

promissory note that is alleged to be at issue in this case.

2. During the hearing on the Motion to Dismiss, counsel for Defendant noted

that the at the time of filing the complaint, the only document attached to the complaint

was a copy of a mortgage which indicates that the lender is, "ARK-LA-TEX Financial

Services, LLC".

3. Prior to the hearing on Defendant's Motion to Dismiss, the Plaintiff filed the

Original Note, but failed to file any assignment of mortgage.

4. Counsel for Defendant noted that the Original Note shows both an allonge
from "Ark-LA-TEX Financial Services" to "Indmac Bank, FSB" and an endorsement

which is permanently affixed to the original note which indicates that the note was

endorsed from "Indy mac Bank, FSB" to "Citbank, National Association, as Trustee".

5. Counsel for Defendant argued that Plaintiff is not the "holder" of the

promissory note at issue in this case pursuant to Florida Statutes §671.201(21) which

defines "Holder" as "The person in possession of a negotiable instrument that is payable

either to bearer or to an identified person that is the person in possession." While

Plaintiff may be the bearer of the instrument, the instrument before this Court is not

payable to bearer but rather to a third party namely, "Citibank, National Association" and

thus the Plaintiff fails the second prong of the definition. See Troupe V. Redner, 652

So.2d 394 (Fla.App. 2 Dist. 1995) and Booker V. Sarasota, Inc., 707 So.2d 886 (Fla.App.

I Dist. 1998)

6. While the Plaintiff makes the general assertion that it is "the holder of the

mortgage note and mortgage and/or is entitled to enforce the note and mortgage" in its

Complaint the exhibits which are attached to the Plaintiffs complaint and which are filed

now with the case by virtue of Plaintiffs Notice of Filing establish that a party other than

the named Plaintiff may be the real party in interest in this case. When there is a conflict

between the general allegations made within the pleadings and the exhibits which are

attached to the complaint, the exhibits control. See Geico Gen. Ins. Co. V. Graci, 849

So.2d 1196 (Fla.App. 4 Dist. 2003); See also Ginsberg V. Lennar Florida Holdings, 645

So.2d 490 (Fla.App. 3 Dist. 1994) Exhibits attached to the complaint are controlling,

where the allegations of the complaint are contradicted by the exhibits, the plain meaning

of the exhibits will control.


7. The Plaintiff has failed to attach any assignment of mortgage and failed to plead

that any equitable assignment of the mortgage occurred prior to filing the instant case.

The Plaintiffs failure to establish standing by virtue of exhibits attached to its complaint

or subsequently filed is a defect that may not be cured by the acquisition of standing after

the case is filed. See Progressive Exp. v. Mcgrath Chiro., 913 So.2d 1281 (Fla.App. 2

Dist. 2005) and Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla.AppA Dist.1990) See

also Credit Based, v. Hardy, 16 Fla. L. Weekly Supp. 1147a (14th

Jud.Cir.BayCty.8119109; =Sun=t:=..;:ru=s.=...t--,-V,;..-'_-,F:....;u=l=le=rt=o=n, 16 Fla. L. Weekly Supp.

1146b(6thJud.Cir.Pinellas Cty.lO/28/09 Edwin B. Jagger, Judge); U.S. Bank v. Rose and

Choquette, 16 Fla. L. Weekly Supp. 1044a (9thJud.Cir.OrangeCty.9114/09); Wachovia

Bank v. Norton, 16 Fla. L. Weekly Supp. 1043a (2ndJud.Cir.LeonCty.9/22/09); JP

Morgan v. Hussein, 16 Fla. L. Weekly Supp. 939b(4thJud.Cir.DuvaICty.8/4/09); Bank of

America v McKenna, 16 Fla. L. Weekly Supp. 833c

al,(6tWud. Cir.PinellasCty. 7113/09Anthony Rondolino, Judge).

WHEREFORE, for the reasons cited above it is ORDERED AND ADJUDGED

that the Defendant's Motion to Dismiss is GRANTED except that the Plaintiff shall have

twenty (20) days from the date of this Order to file an Amended Complaint. If the

Plaintiff files their Amended Complaint the case shall not be dismissed and the

Defendant shall file his response to the Amended Complaint within twenty days (20) of

receipt.
! ' ',~.J!!

DONE AND ORDERED in Chambers on this the . day of December,


2009 by MAR 0 1 2010
Hon. George Jirotka
cc: Matthew Weidner, Esq.
Justin J. Kelly, Esq.

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