Do You Remember Your Assignment?

Way back when in 1838, the Florida Constitution created the Florida Supreme Court, the highest Court in the State of Florida.  Its decision/rulings are not subject to further review by any other court and create binding precedents throughout the State.  Foreclosures, ladies and gentleman, are typically adjudicated in state court.  So, I was thinking, with over 150 years of Florida Supreme Court cases decided, maybe there was a case or two that was relevant to today’s foreclosure defense and I could grab it and post it on the blog so a Florida foreclosure defense attorney could take it and smash a lender/plaintiff’s Florida foreclosure mill attorney over the head with it (Paul’s metaphor for having a motion to dismiss granted or a summary judgment awarded for defendant/homeowner)!

Then I thought, maybe that’s wishful thinking.  The cases only go back to 1999 on FloridaSupremeCourt.org and then the F.S.U. College of Law has an “Unofficial Archive of Opinions” on their site that has select cases going back a couple more decades.  Maybe I won’t find that helpful case to save a Broken Credit Blogger from Florida foreclosure after all.

Then it hit me!  Stop, hold the phone!  I’ve found it!  Let’s go back in time to 1911.  A time when railroads traveled through lands and disputes with land owners who (attempted to) usurp land rights against the railroad companies.  Let’s go back to Marianna & Blountstown Railroad Company v. H.V. Maund, 62 So. 538 (Fla. 1911) – a case that is strangely relevant to today.  Taking a look at page 543 and 544 of the decision:

It is said in 1 Cyc. P. 744, “A plaintiff cannot supply the want of a valid claim at the commencement of the action by the acquisition or accrual of one during the pendency of the action.  Nor can plaintiff recover in a pending action on a cause of action which accrued after the institution of such action, even though such cause of action relate to the subject matter of the pending action.”  See Metcalf v. Guthrie, 94 N.C. 447.  It is stated in this case that where the right to sue arises out of a transaction subsequent to the institution of the suit, relief cannot be had by a supplemental or amended complaint for the obvious reason that the cause of action did not then exist.  Says Judge Bleckley in Wadley, Jones & Co. v. Jones, 55 Ga. 329, “it is a rule of law to which there is, perhaps, no exception, either at law or in equity, that to recover at all there must be some cause of action at the commencement of suit.” 

If you read the decision in Marianna & B.R. Co. v. Maund 62 So. 538 (Fla 1911), you’ll see that it is not a foreclosure case; nevertheless, I feel it relates to the problem with Florida foreclosures today.  The foreclosure mill attorneys file the complaint in foreclosure prior to the assignment(s) of mortgage from the lender of public record to the alleged lender/plaintiff.  If a lender/plaintiff is assigned the mortgage after the “commencement of the action” then the lender/plaintiff can not properly allege a cause of action and according to Marianna v. Maund the action should be dismissed without prejudice “at the cost of the appellee”.

Let’s not forget the precedent set in the Florida Supreme Court way back in 1911.  The foreclosure may be dismissed and the other side can pay your attorney fees.  Don’t forget to check for those recorded assignments.

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.