IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA BAC HOME LOANS SERVICING, L.P. FKA COUNTRYWIDE HOME LOANS. VICING, L.P. AND ASSETS RESOLUTION CORPORATION, Plaintiff, Case No, 2009-CA-032417 v, Division H AJAL THOMAS and DEEPA THOMAS, ef. al Defendants, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR TO DISMISS AMENDED COMPLAINT Defendants, AJAl THOMAS and DEEPA THOMAS, by and through undersigned counsel, move this Court for an Order dismissing the Amended Complaint of Plaintiffs, or in the alternative the entry of summary judgment in favor of Defendants, and as grounds would show: REQUEST FOR HEARING 1, As the instant motion includes @ request for summary judgment, it would be reversible error to adjudicate the motion without a hearing. The Third Distriet has explained: Florida Rule of Civil Procedure 1.510(c) contemplates a hearing on a summary judgment motion. The rule does not provide the trial court with discretion to decide whether a ‘hearing is required.’ A trial courts failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard. A denial of the guarantee of due process represents a violation of a clearly established principle of law such that certiorari relief is warranted, State Farm Fire and Cas. Co. v. Lezeano, 22 So. 3d 632 (Fla. 3d DCA 2009). 2. The undersigned has argued dozens of motions of this type before various judges in Florida, These motions are regularly granted ~ not always, but oflen. To deny this motion without a hearing is a basic denial of due process and creates the impression (true or not) that thisCourt is “pushing through” foreclosure cases regardless of their merits. In any event, this Court should grant Defendants a hearing so it will, at minimum, understand why these motions have so often been granted by judges throughout Florida, BACKGROUND 3. On October 25, 2011 the Court entered an Order dismissing the Complaint of Pl ‘ff, BAC Home Loans Servicing, L.P. (“BAC”) and giving it twenty (20) days to file an Amended Complaint. The rationale for the Court's Order was Defendants’ contention that BAC failed to make requisite allegations as to its standing. 4. On November 14, 2011 BAC filed an Amended Complaint. Out of the blue, a new Plaintiff was included in this Amended Complaint, Assets Resolution Corporation (“ARC”). As such, there are now two Plaintiffs - BAC Home Loans Servicing, L.P. and Assets Resolution Corporation. 5. Two key facts in the Amended Complaint, which give rise to the instant motion, are: (i) the allegation in paragraph 3 of the Amended Complaint that “Plaintiff is the owner and holder of said note” without specifying which Plaintiff, and (ii) the Assignment of Mortgage from BAC to ARC attached to the Amended Complaint which post-dates the filing of this lawsuit, ANALYSIS: STANDING AT INCEPTION 6. A flurry of recent decisions from Florida's Fourth District Court of Appeal have followed established precedent from the Second District and other courts regarding the necessity for a plaintiff in a foreclosure case to have standing at the inception of the case. For instance, on December 14, 2011, the Fourth District explained: While it is true that standing to foreclose can be demonstrated by the filing of the original note with a special indorsement in favor of the plaintiff, this does not 2alter the rule that a party's standing is determined at the time the lawsuit is filed. See Progressive Express Ins. Co, v. McGrath Comty. Chiropractic, 913 So. 2d 1281, 1286 (Fla. 2d DCA 2005). Stated another way, “the plaintiff's lack of standing at the inception of the case is not a defect that may be cured by the n of standing after the case is filed.” Id. at 1285. Thus, a party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact, Id, at 1286. MeLean_v. J.P. Morgan Chase Bank, 2011 Fla, App. LEXIS 19931 (Fla. 4th DCA 2011). Notably, the Fourth District applied this rationale to motions to dis 3s, ruling: Generally, where a mortgage foreclosure action is based on an assignment that_was executed after the lawsuit was filed, the plaintiff has failed to cause of action. .. Id, (emphasis added). In so clarifying, the court explained the key issue was not merely whether the plaintiff had standing, but whether it had standing when the lawsuit was first filed: Because Chase presented to the trial court the original promissory note, which contained a special indorsement in its favor, it obtained standing to foreclose, at least at some point. ... Nonetheless, the record evidence is insufficient to demonstrate that Chase had standing to foreclose at the time the lawsuit was filed, The mortgage was assigned to Chase three days after Chase filed the instant foreclose complaint. ... 1d. (emphasis in original). 7. Likewise, on November 23, 2011, the Fourth District reversed a summary judgment of foreclosure and remanded with instructions that the case be dismissed, ruling: An assignment of a promissory note or mortgage, or the right to enforce such, ‘must pre-date the filing of the foreclosure action. Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990). A party must have standing to file suit at its inception, and may not remedy this defect by subsequently obtaining standing, Progressive, [supra]. Venture Holdings & Acquisitions Group, LLC v. A.M. Funding Group, LLC, 2011 Fla. App. LEXIS 18741 (Fla. 4th DCA 2011); see also Duke v. HSBC Mortgage Services, LLC, 36 Fla. L. Weekly D 2569 (Fla. 4th DCA 2011); Country Place Cmty. Ass'n_v. J.P. Morgan Mortg, Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010); Progressive Express Ins. Co. v 3