In this Mortgage Foreclosure case, the Defendant/Homeowner prevailed on a Motion to Dismiss based on Rule 1.120(a), Fla. R. Civ. Pro., arguing that the Plaintiff had not adequately plead that it had the capacity to sue.

“‘Capacity to sue’ is an absence or legal disability which would deprive a party of the right to come into court.”  Here, the caption of the Complaint lists the Plaintiff as “Wachovia Mortgage, FSB, F.K.A., World Savings Bank.”  No further identification of the Plaintiff or explanation of the Plaintiff’s capacity to sue is set forth in the Complaint.  After the Defendant moved to dismiss the case, the Plaintiff attempted to address the defect in a Response to Defendant’s Motion to Dismiss.  The Court found that the Plaintiff’s response was inadequate as the Complaint itself was still defective and that, by failing to sufficiently identify itself in the Complaint, the Plaintiff effectively denied the Defendant the right to address the Plaintiff’s identity in a responsive pleading.

Thanks to Attorney Matt Weidner, who successfully argued the Motion to Dismiss in this case, for submitting this Order for publication.  Attorney Weidner’s analysis of the impact on foreclosure cases can be found here. If you have a trial court order that addresses a unique procedural issue, we would love to publish it on this website.