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Quiet Title Action Based on Mortgagee’s Failure to Respond to Mortgagors’ Written Demand to Prove that Mortgagee Loaned Money to Mortgagors

Civil Procedure: Amendment: Trial Court Lacked Discretion to Dismiss Initial Complaint with Prejudice Without Providing at Least One Opportunity to Amend

kashilawletter.com | October 20, 2014

Unrue v. Wells Fargo Bank, N.A., ___ So. 3d ___, 39 Fla. L. Weekly D2023 (Fla. 5th DCA September 19, 2014)

The mortgagors filed an action to quiet title because the mortgagee failed to respond to their written demand to prove it lent money to them. The mortgagee filed a motion to dismiss the complaint with prejudice, and the trial court did so, despite the mortgagors’ request for leave to amend, based on the premise that amendment would be futile because the mortgagors’ claim was a sham. The appellate court reversed because the mortgagors were entitled to amend once as a matter of course before a responsive pleading was filed, and a motion to dismiss is not a pleading. “If this had been an amended complaint, the trial court would clearly have been within its discretion to dismiss the quiet title action with prejudice based on the absurd allegations, and [the appellate court] would have affirmed. However, it had no discretion under the rules to dismiss the initial complaint with prejudice, without providing at least one opportunity to amend.” Judge Evander concurred in Judge Lambert’s majority opinion. Judge Harris dissented because the mortgagors were perverting the rules of civil procedure to perpetuate a fraud. “To suggest a circuit judge would void a mortgage because a bank failed to respond to a borrower’s unauthorized letter is an affront to the court and the attempt to serialize this frivolousness is an abuse of the rule.”


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CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

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