I wrote earlier that when banks file motions to substitute party plaintiff, judges routinely grant them, whether or not there are objections by the homeowner or their attorney. I even asserted that granting such motions is what the bench book probably suggests. But I finally came across a situation where the homeowner’s arguments prevailed; and the bank’s motion was dismissed.
Since August 2009 when the complaint was filed, JPMorgan Chase claimed to be the legal or equitable owner and holder of the loan documents and entitled to enforce them. In 2012 JPMorgan Chase set the case for summary judgment hearing. After that the attorneys filed motion to substitute JPMorgan Chase for Wells Fargo as trustee of some securitized trust.
The homeowner has rightly stated that substitution is essentially amending the complaint, and that plaintiff should not have waited until the pleadings had closed. The homeowner quoted State ex. rel. Hawkins v. Board of Control, 53 So. 2d 116 (Fla. 1951) (Facts stated in motions are not evidence of the facts related therein. Those facts must be proven before the motion can be granted).
Trial judges cannot rely upon unsworn statements (by attorneys) as the basis for making factual determinations. Leon Shaffer Golnick Advertising Inc. v. Cedar, 423 So. 2d 1015, 1017 Fla. 4th DCA 1982).
In the case at hand plaintiff has provided no admissible evidence of any transfer of any interest to any other party. Motion to substitute party plaintiff was denied.