Tag Archive for: 4th DCA

4th DCA FL App Ct Reverses Trial Court’s Ruling Allowing Mortgagee to Correct Foreclosure w/ Wrong Legal Description

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Fourth District District Court of Appeals of the State of Florida, entered a final summary judgment of foreclosure that had been entered with the incorrect legal description was a “voidable,” not “void” judgment and, as a result, was subject to the one year time limit for motions to vacate the judgment.

The Court held, that the mortgagee filed its motion to vacate the judgment more than three years after it was entered, the trial court erred in granting the mortgagee’s motion to vacate.

A copy of the Court’s opinion is available at:  http://www.4dca.org/opinions/Jan%202015/01-28-15/4D13-4066.op.pdf

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

FL App Ct Holds Res Judicata Does Not Bar New Foreclosure Action Based on New Defaults

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The Fourth District Court of Appeal of the State of Florida,held that res judicata does not render a mortgage unenforceable or preclude a subsequent foreclosure action based on a default not alleged in the prior action.

The mortgage and note was sold and assigned to another entity (“Lender”).  Borrower defaulted on the note and failed to pay homeowner association fees assessed by her homeowner association (“HOA”).

Lender’s predecessor in interest filed suit to foreclose in August 2007, alleging a default in the payment due on April 1, 2007.  The complaint named HOA as a co-defendant because of its potential junior lien interest. The First Foreclosure by Lender was eventually dismissed.

Between the dismissal of the first foreclosure action and the Lender’s filing of its second foreclosure action, HOA obtained title to the subject property by foreclosing its own homeowner association lien and purchasing the property at the court-ordered foreclosure sale.

HOA  filed a motion for final summary judgment, arguing that the involuntary dismissal of Lender’s first foreclosure action operated as an adjudication on the merits pursuant to Florida Rule of Civil Procedure 1.420(b), and thus, Lender was barred from re-litigating the claim.  The trial court agreed and granted HOA’s motion.

HOA to quiet title on the basis of res judicata and sought a court order removing Lender’s mortgage as an encumbrance on the property.  The trial court also granted judgment on HOA’s quiet title in favor of HOA.

The Appellate Court in this case agreed with Lender that despite an adjudication on the merits in a prior action to foreclose a mortgage, res judicata did not render the mortgage unenforceable by precluding enforcement actions on subsequent defaults

Courts have  previously held that res judicata does not bar the later foreclosure action, because a new default — based on a different act or date of default not alleged in the dismissed action — creates a new cause of action that is not barred by res judicata.  See Singleton v. Greymar Assocs., 882 So. 2d 1004, 1008 (Fla. 2004); Star Funding Solutions, LLC v. Krondes, 101 So. 3d 403, 403 (Fla. 4th DCA 2012).

The Court turned to HOA’s quiet title claim.  The Court reasoned that because each payment default created a basis for a subsequent foreclosure, the note and mortgaged remained a valid and enforceable lien against the property, and did not, as a matter of law, constitute a cloud on the property supporting a quiet title claim.  See Kaan v. Wells Fargo Bank, N.A., 981 F. Supp. 2d 1271, 1274 (S.D. Fla. 2013).

Accordingly the Appellate Court reversed.

http://www.4dca.org/opinions/Sept.%202014/09-24-14/4D13-1992.op.pdf

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

Parent Company Lacks Standing to Foreclose

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The 4th DCA decided on July 1, 2015  that a Final Judgment of foreclosure be reversed due to lack of standing, where  the whole owned subsidiary  rights to n the note could not be enforced by the parent company    Wright v. JPMorgan Chase Bank N.A., 4th DCA Case No. 4D14-565 (July 1, 2015).  The Court held that absent evidence that the loan was purchased by JPM, it could not enforce the note. JPM did not introduce any purchase agreement or other evidence that it had acquired the note.  The Court also cited   Am. Int’l Group, Inc. v. Cornerstone Bus., Inc., 872 So 2d. 333,336 (Fla. 2nd DCA 2004) and  Federated Title Insurers, Inc. v. Ward, 538 So. 2d 890,891 (Fla. 4th DCA 1989).

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761, Phone: (727) 410-2705 email: [email protected]

FL App Ct (4th DCA) Reverses Dismissal of Foreclosure Based on Missing Original Note

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The District Court of Appeals of the State of Florida, Fourth District, reversed the involuntary dismissal of a bank’s mortgage foreclosure action.

The bank filed the original promissory note prior to trial, but at trial the parties discovered that it was missing from the court file. The bank tried to introduce a copy into evidence, but the borrowers objected on the basis of the “best evidence” rule. The clerk of court later found the original note and mailed it back to the bank, which then moved for rehearing or a new trial. The trial court denied the motion and entered final judgment for the borrowers.

On appeal, the Appellate Court analyzed the text of Florida Rule of Civil Procedure 1.420(b), which governs involuntary dismissal in bench trials, pointing out that Florida courts have interpreted the rule as preventing a trial court from involuntarily dismissing a case before the plaintiff rests the case which is what was done by the lower court.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

http://www.4dca.org/opinions/Jan%202015/01-28-15/4D13-3654.op.pdf