IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
FEDERAL NATIONAL NORTGAGE ASSOCIATION
(“FANNIE MAE”),
Plaintiff,
- CASE #: 2017-CA-006882
PERSIO LIRIANO, et al.,
Defendants.
DEFENDANT PERSIO LIRIANO AND ANGIE ROSA’S
OBJECTION TO MOTION FOR ISSUANCE OF WRIT OF POSSESSION
COMES THIS DAY the Defendants, Persio Liriano and Angie Rosa, proceeding pro se, file this Objection to Motion for Issuance of Writ of Possession as follows:
- The mortgage attached to the complaint shows the lender to be an entity different from the Plaintiff and there is no valid assignment attached to the complaint. The complaint, therefore, fails to comply with Rule 1.130, Fla. R. Civ. P. There was also no promissory note attached to the complaint and no assignment of the note associated with this foreclosure action proving that the Plaintiff had standing to enforce the note and bring this action. As a result of the pleading deficiencies, the complaint should be dismissed, either because of a repugnancy created by the complaint and the exhibits, or because the complaint fails to allege sufficient ultimate facts to show Plaintiff’s standing to bring the action. Verizzo v. The Bank of New York, 2010 WL 711862 (Fla. App. 2nd Dist.); 2010 WL 476641 (Fla. App. 2nd Dist.); and Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240 (Fla. 2000).
PLAINTIFF LACKS STANDING TO BRING THIS ACTION
The Plaintiff lacks the standing to sue the Defendant as it was not a party to the mortgage contract attached to the Complaint.
The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff. At each stage of the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that burden. Standing must exist on the date the complaint is filed and throughout the litigation. Moreover, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte. Finally, plaintiffs must demonstrate standing for each claim and each request for relief. There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operative facts.
There is no document attached to the Complaint that evidences the Plaintiff’s relationship to the original lender. The inability to attach the documentation evidencing the Plaintiff’s right to bring this action violates and is not in compliance with F.R.C.P. 1.130, evidencing any assignment of right to the Plaintiff to file this action.
The inability to attach the documentation evidencing the Plaintiff’s right to bring this action violates and is not in compliance with F.R.C.P. 1.130, evidencing any assignment of right to the Plaintiff to file this action.
In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Plaintiff is not entitled to maintain this action in which it seeks to foreclose on a note which Plaintiff does not own. Your Construction Center, Inc. v. Gross, 316 So.2d 596 (Fla. 4th DCA 1975).
Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bring the claim be recognized in the law as being the real party in interest entitled to bring the claim. This entitlement to prosecute a claim in Florida Courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v. Nopal Lines Ltd, et al, 462 So.2d 1178 (Fla. 3d. DCA 1985).
The Plaintiff fails to maintain any of the criteria’s of F.R.C.P. 1.210(a) which provides, in pertinent part:
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.
No Florida case holds that a separate entity may maintain suit on a note payable to another entity unless the requirements of F.R.C.P. 1.210(a) are met. Concoran v. Brody, 347 So.2d 689 (Fla. 4th DCA 1977).
Although the Plaintiff claims to be the owner of the promissory note, the note submitted shows that another party is the owner of the note. The note makes no mention of Plaintiff. When exhibits are inconsistent with Plaintiff’s allegations of material facts as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc. 424 So.2d 185, 187 (Fla. 4th DCA 1983) Costa Bella Development Corp. v. Costa Development Corp, 411 So.2d 114 (Fla. 3d. DCA 1983).
CONCLUSION
WHEREFORE, Defendants, Persio Liriano and Angie Rosa, respectfully request that this Court enter an order granting this objection to motion for issuance of writ of possession.
__________________________________
Persio Liriano
Defendant, pro se
445 South Deerwood
Orlando, Florida 32825
(407) 409-9483
__________________________________
Angie Rosa
Defendant, pro se
445 South Deerwood
Orlando, Florida 32825
(407) 409-9483
CERTIFICATE OF SERVICE
I, the undersigned, hereby certifies that on 7th day of November 2020, via United States Postal Service, First Class, postage pre-paid, that a true and complete copy of the foregoing Instrument was mailed to:
Derek R. Cournoyer, Esq.
Marinosci Law Group, P.C.
275 West Natick Road, Suite 500
Warwick, RI 02886
__________________________________
Persio Liriano
Defendant, pro se
445 South Deerwood
Orlando, Florida 32825
(407) 409-9483
__________________________________
Angie Rosa
Defendant, pro se
445 South Deerwood
Orlando, Florida 32825
(407) 409-9483
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