Tax Deed upheld despite the fact that notice to mortgagee’s record address was returned as undeliverable.

Tags

notice, tax deed, 197.522(1), 197.502(4), undeliverable, mortgagee

Mortgagee sued to overturn a tax deed sale extinguishing its two mortgage liens on the subject property on the basis that the notice sent to it was returned as undeliverable. 

 Florida Statutes  §197.522(1),  provide that prior to a tax deed sale the Clerk of Court  is to issue notice of the application for a tax deed to interested parties as identified in §197.502(4). “Interested parties”  include  any mortgagee of record if the address appears on the recorded mortgage. The Clerk sent notice of the Tax deed sale to the mortgagee  at the address listed on both mortgages recorded against the subject property. The notice was returned as undeliverable.  The mortgagee admitted that it had moved its primary address and did not directly notify the Tax Collector’s office of the new address. The Clerk’s office admits that after the notice was returned it took no further action to attempt to locate a new address for Beneficial.

The court noted that cases of  Jones v. Flowers, 547 U.S. 220 (2006) [19 Fla. L. Weekly Fed. S158a]; Delta Property Management v. Profile Investments, Inc., 87 So. 3d 765 (Fla. 2012) [37 Fla. L. Weekly S157a]; and Vosilla v. Rosado, 944 So. 2d 289 (Fla. 2006) [31 Fla. L. Weekly S758a] in which a tax deed sale had been overturned for failure to provide notice.  But both Delta Property and Vosilla   involved notices to the property owners  who had notified government authorities that their mailing address had changed. Through no fault on the property owner’s part, the notices were sent to addresses that no longer were valid. In concluding that the tax deed sale in Delta Property was invalid the Florida Supreme Court summarized:

Pursuant to Jones and Vosilla, the Clerk had a duty to take additional, reasonable steps to attempt to provide notice to the legal titleholder before selling the property. As identified by those decisions, those reasonable steps depend on the particular circumstances of the case and may include: checking the records of the taxing authorities for a change of address submitted by the legal titleholder; resending notice by regular mail so that no signature is required; posting notice on the property to be sold, not merely at the last known address of the titleholder; or sending a notice addressed to “occupant” by regular mail. Delta Property, 87 So. 2d at 773 (emphasis added).

These cases are distinguishable on their facts because they involve inadequate notice to titleholders to property and do not involve alleged inadequate notice to a mortgage holder.

The mortgagee herein argued that the Clerk of Court should have searched public records or the internet to find a new address for the mortgagee when the notice of tax deed sale was returned undelivered  citing Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983). The U.S. Supreme Court stated that “prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide ‘notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Id. at 795 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)(involving notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund)).

In both Mullane and Mennonite Board the U.S. Supreme Court stated that mere publication, without any other attempt to notify interested parties, was not sufficient to provide adequate notice. In discussing mortgage holders in Mennonite Board, the U.S. Supreme court concluded, “When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane.” 462 U.S. at 798 (emphasis added). The Supreme Court did not require the government entity to search public records or to employ other means to locate a new address for the mortgagee.

The court ruled that the Clerk of Court complied with section 197.522(1) by sending notice to the mortgagee  at the “last known available address.” This Court notes that section 197.522(1)(d) states, “The failure of anyone to receive notice as provided herein shall not affect the validity of the tax deed issued pursuant to the notice.” Therefore, failure of the notice to be received by Beneficial, as a non-titleholder, does not affect the validity of the tax deed. The record conclusively shows that Beneficial’s claim cannot be proved as a matter of law and the Clerk is entitled to summary judgment.

BENEFICIAL FLORIDA, INC., v. KEN BURKE, in his capacity as Clerk of the Court, Pinellas County, Florida; Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 12-002057CI-21. UCN 522012CA002057XXCICI. February 19, 2013. John A. Schaefer, Judge.  20 Fla. L. Weekly Supp. 499b

Eviction of a boat

Tags

83.52, 83.56, admiralty, boat, boat slip, florida, LANDLORD, live aboard, marina, TENANT

Marina owner’s action for residential eviction against defendant who rented slip at marina, and occupied boat that remained stationary, and was used exclusively as a residence, defendant’s contention that action fell within federal admiralty jurisdiction was without merit

Factual Background

Plaintiff is the owner of a marina. Plaintiff rents a slip to Defendant, who owns and resides on the boat docked in the marina. Plaintiff filed this action for residential eviction based on a FIVE  day notice to cure   under  Fla. Stat. §83.52, failure to maintain dwelling unit.  The tenant argued that Admiralty Law controlled and the court had no jurisdiction,  and that Plaintiff’s five day notice to cure was defective.

I. Defendant’s Admiralty Motion

This Court finds that this is not an admiralty action because the agreement between the parties is plainly not maritime in nature. Defendant’s boat is moored at a slip in Plaintiff’s marina, it remains stationary and is used exclusively as a residence. The agreement governing the obligations of the parties is a lease which provides for monthly payments for use of the slip. A maritime contract, however, must “relate to the ship as an instrument of commerce, and … a contract for the wharfage³ of a ship withdrawn from commerce is not maritime…. The reason is that such service does not pertain to the navigation of a ship, nor assist a vessel in the discharge of a maritime obligation.” Pillsbury Flour Mills Co.v. Interlake S.S. Co., 40 F. 2d 439, 440 (2nd Cir. 1930) (emphasis added). See Port Utilities Commission of Charleston v. Marine Oil Co., 173 S. C. 346, 175 S. E. 818 (1934) (state court entertained removal proceeding for slip lessee’s failure to pay rent); compare King v. Convey-Eckstein, 66 Fla. 246, 63 So. 659 (Fla. 1913) (lessees of docks may be held liable in state courts for injuries to third parties for failing to maintain premises in a reasonably safe condition).⁴

As this is not an admiralty case, the challenge to this Court’s jurisdiction on the basis that federal law precludes state courts from considering this type of matter cannot succeed. Accordingly, Defendant’s admiralty motion is DENIED.

II. Defendants Landlord – Tenant Motion

This Court found,  Section 83.56, Fla. Stat., requires a  SEVEN day notice to cure  a  lease violation.   The five day notice to cure provided by the landlord in this case,  was therefore defective.

The fact that the parties‘  lease contains a provision permitting only a five day period is of no consequence. Florida’s landlord-tenant law clearly provides that “[a] provision in a rental agreement is void and unenforceable to the extent that it …[p]urports to waive or preclude the rights, remedies, or requirements set forth in this part….” §83.47(1)(a), Fla. Stat. Thus, the notice is invalid because it contained a time shorter than that required by Florida’s landlord-tenant statute and, therefore, this cause must be dismissed. See Shapiro v. Puche, 1 F.LW. Supp. 409 (Broward County 1993).

Based upon the foregoing, Defendant’s motion is GRANTED and this case is DISMISSED.

^{_____________________________________}

¹In essence, Defendant has moved, pursuant to Rule 1.420(b), for an involuntary dismissal for Plaintiff’s failure to show any right to affirmative relief.

²The Boat Storage & Service Agreement at paragraph 5 provides “[t]he MARINA shall…have the right to terminate this agreement upon five (5) days Notice to OWNER in the event that OWNER shall fail to observe or perform any of its other obligations hereunder.”

³“Wharfage” is generally defined as a charge for the use of a wharf, dock or slip made by the owner by way of rent or other compensation. See 79 Am. Jur. Wharves §29 (1975).

⁴Defendant’s related theory that this is an in rem action against the boat that converts this case into an admiralty dispute is contrary to the nature of an eviction proceeding. Plaintiff does not seek possession of the boat, rather, it seeks recovery of its exclusive right to the slip. Similarly, the relationship between the Plaintiff and the Defendant is governed by a lease, not a lien or other instrument which may give Plaintiff an interest in the boat itself. Consequently, suit was not brought against the boat (which would be possible in an in rem admiralty proceeding). See e.g. Still v. Dixon, 337 So. 2d 1033, 1035 (Fla. 2d DCA 1976). Rather, the suit was brought against the Defendant, an individual.

TCY LTD., INC., v. JOHNSON. Dade County. Case No. 94-13511-CC 23. 1995.

3 Fla. L. Weekly Supp. 72b

Failure to establish that plaintiff was in possession of promissory note prior to filing of foreclosure results in dismissal

Tags

blank endorsement, florida, foreclosure, lost note

The original complaint, filed by prior counsel Ben-Ezra & Katz, P.A., contained a count seeking to foreclose a mortgage and a count seeking to re-establish a lost note in which New Century Mortgage Corporation was named as the Lender;  The original complaint did not contain a copy of the allegedly lost note as an exhibit;

Plaintiff subsequently filed a Notice of Filing Original Note which contained a note with an undated, stamped blank endorsement by New Century Mortgage Corporation representative Magda Villanueva, AVP/Shipping Manager;

At trial the court found that  Plaintiff’s evidence failed to establish the date the undated, blank endorsement was stamped on the note, and failed to establish the note was acquired by Plaintiff prior to the filing of the original complaint.

The court held that  Plaintiff failed to establish its standing to prosecute this action and dismissed the case.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST, SERIES 2004-1, v. LANGLEY. Circuit Court, 20th Judicial Circuit in and for Collier County, Civil Division. Case No. 08-04802-CA. January 6, 2013. Hugh D. Hayes, Judge.  Online Reference: FLWSUPP 2004LANG

7 Day Notice Defense

Tags

7 day notice, 83.51, 83.56, 83.60, florida, LANDLORD, maintenance, repair, TENANT

A landlord issued a tenant a 3 day Notice for non payment of rent due 3/8/13  with a due date of 3/14/13.  On 3/26/13  the landlord filed an eviction for non-payment of rent.  The tenant was served on 3/30/13.  On  4/2/13  the tenant issued landlord a 7 day notice to perform repairs.  On 4/3/13  the tenant filed an answer and motion for rent determination and did not post any rent into the court registry.

The court set  the case for a rent determination hearing  on 4/8/13  and heard oral  testimony from the tenant, unsupported by any documentation,  concerning  alleged repair issues at  the  leased premises.

Counsel pointed out that  tenant’s  7 day notice had not matured even as of the date of the hearing, and thus landlord was still within his time frame  in which to effect the requested repairs before the tenant would have any entitlement to withhold future rent.   Further,   that  a 7 day notice issued in April   could have no bearing on tenant’s obligation to pay March rent.

The court was  presented with the case of Lee v. Schweizer , 7 Fla L. Weekly Supp 750a, County Court Sarasota 2000] which states that a “tenant may not take matters into his or her own hands and resort to the self-help of unilaterally withholding rent payments without proper notice.”     …   “a tenant may not raise a defense concerning the physical condition of the premises  without first having complied with the seven day notice requirement.”

Indeed, Section 83.60  “defenses to action for rent,”   requires  the tenant  to have issued a 7 day notice of non-compliance to the landlord in order to raise failure to make repairs as a defense to non-payment of rent.

As tenant’s 7 day notice had not matured prior to landlord’s 3 day notice,  tenant did not have a defense to the non-payment of the rent claimed in the 3 day notice. Thus,  tenant was obligated to post the amount claimed in the 3 day notice into the court registry to avoid an automatic default.

Cortleigh Apartments v. Thompson Case 13-6231 (52)  COCE,  Broward County.

Mortgage was not in default on date specified in complaint due to mortgagors payment of arrears to obtain a loan modification, also rendering subsequent notice of acceleration void.

Tags

accelaration, default, foreclosurfe, modification, tender

Plaintiff filed a complaint for foreclosure on September 29, 2010.  Plaintiff alleged in its Complaint that:

The Mortgage Note and Mortgage are in default. The required installment payment of June 1, 2010, was not paid, and no subsequent payments have been made. The Mortgage is contractually due for June 1, 2010, payment. The last payment received was applied to the May 1, 2010, installment, and no subsequent payments have been applied to the loan.  [Plaintiff's Complaint ¶6.]

The Defendants filed their answer on February 8, 2011 denying that the Mortgage Note and Mortgage are in default.

At trial, the defendant testified that in October of 2009 she contacted Plaintiff to discuss a mortgage modification.  A representative of Plaintiff,  informed her that her account had to be 90 days in default before they will consider a loan modification. Relying on this statement, the defendant  did not make her mortgage payments from November 2009 through January 2010.

Defendant further testified that she was told by another of Plaintiff’s representatives,  that she would begin a temporary modification period requiring reduced payments for February 1, 2010, March 1, 2010 and April 1, 2010.  Defendant testified that she timely made each of these payments.

Defendant testified that in June 2010, she received a notice that she was being denied for a permanent loan modification. As a result, on June 23, 2010 she contacted Plaintiff to see how much she owed. A representative of Plaintiff informed the Defendant that if she paid $6,774.84 the loan would be current through July 2010 making August 1, 2010 the next due payment. Defendant then made this payment telephonically with Plaintiff’s representative during the same phone call.

Defendant further testified that she received a letter dated July 19, 2010 which claimed that she owed $1,969.40 in past due amounts.  She again contacted Plaintiff regarding the amounts claimed to be due and was again told not to make a payment for 90 days so that she could be considered for a loan modification. Approximately 60 days later, Plaintiff filed the instant foreclosure.

The witness for the Plaintiff, provided no testimony to rebut the testimony of the Defendant  in relation to the representations of Plaintiff during the various aforesaid phone calls. The lender’s witness testified only based on the payment history introduced at trial that the last payment applied to the account was for May 2010 and no further payments had been received.

The Court found that the Defendant’s  testimony regarding the June 23, 2010 phone call and payment is un-rebutted and thus must be accepted.   Plaintiff is bound by the representation made by its representative to Defendant on June 23, 2010 that the loan would be brought current through July 31, 2010 if she made payment in the amount of $6,774.84.  Therefore, the Court found that the subject loan was current through July 31, 2010. This is contrary to Plaintiffs allegation in its Complaint that the loan was in default as of June 1, 2010. Thus, Plaintiff has failed to prove that the loan was in default on the date alleged in its Complaint.

Additionally, per paragraph 7 of the Complaint, Plaintiff’s cause of action is based on an alleged acceleration of the full amount of the loan. Paragraph 22 of the subject mortgage requires that prior to an acceleration of the full amount of the loan, the Defendants must be provided with a notice of the Plaintiff’s intent to accelerate the loan 30 days in advance.

Plaintiff introduced its alleged Notice of Intent to Accelerate dated July 19, 2010. Plaintiff’s Trial Exhibit #4. This Notice, however, is not effective because the loan was current on July 19, 2010 due to the payment made on June 23, 2010 in the amount of $6,774.84. Therefore, Plaintiff did not have the contractual right to accelerate the loan. No subsequent notice of intent to accelerate was introduced by Plaintiff. Therefore, Plaintiff has failed to prove that it provided an effective notice of intent to accelerate more than 30 days prior to acceleration of the loan, a necessary condition precedent to acceleration and bringing the instant action. Bryson v. BB&T, 75 So. 3d 783, 785-786 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2582a].

“As a matter of substantive law, it is a good defense to foreclosure on an accelerated basis that the mortgagor tenders payment of defaulted items, after the default but before the notice of mortgagee’s election to accelerate has been given.” Delandro v. America’s Mortgage Servicing, Inc., 674 So. 2d 184, 186 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1201a] (quoting Campbell v. Werner, 232 So. 2d 252 (Fla. 3d DCA 1970). See also Yelen v. Bankers Trust Co., 476 So. 2d 767, 769 (Fla. 3d DCA 1985(“A tender of arrears, made before the lender has declared the entire amount due, prevents the lender’s acceleration of the mortgage).

Per paragraph 8 of the Plaintiff’s Complaint, $138,507.19 was due in principal as of May 2010. Therefore, the subject loan is hereby current with a balance going forward of $138,507.19 with the next contractual monthly payment due on November 1, 2012. Said payment shall be the $923.57 in principal and interest reflected in the Note plus lawful escrow amounts. Any amounts currently held in suspense by Plaintiff shall be applied towards the outstanding principal balance.

The Court further found that it would be inequitable for the Defendants to be assessed any interest, late charges or other fees as a result of the alleged default.

The court entered judgment for the defendant awarding  her costs and fees,  while also specifying that plaintiff shall not assess defendant any costs or fees related to the foreclosure

WELLS FARGO BANK, N.A., v. WESTBROOK, et. al., Circuit Court, 7th Judicial Circuit in and for St. Johns County. Case No. CA10-2659, Division 55. October 17, 2012. Edward Hedstrom, Judge. Counsel: Ronald R. Wolfe and Associates, P.L., Tampa, for Plaintiff. Pycraft Legal Services, LLC, St. Augustine, for Defendants.

20 Fla. L. Weekly Supp. 400b

Online Reference: FLWSUPP 2004WEST

Where previous eviction action against defendant was dismissed, and the court entered a judgment awarding attorney’s fees and costs, a subsequent action will be stayed until plaintiff satisfied the judgment.

Tags

3. Fla. R. Civ. P. 1.420(d), costs, florida, judgment for attorneys fees, LANDLORD, stay, TENANT

Plaintiff filed an action to evict Defendant.   The court ruled in favor of the Defendant and the case was involuntarily dismissed.  The court subsequently entered a  Final Judgment for Attorney’s Fees against the Plaintiff.

The plaintiff did not pay the Defendant’s attorney’s fees.   Then the  Plaintiff  filed a new eviction against the defendant.   The Defendant moved to stay the proceedings.

The court cited 3. Fla. R. Civ. P. 1.420(d) which states:

“Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this state commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.” (emphasis added).

It is well settled case law that Plaintiff is required to satisfy the Final Judgment for Attorney’s Fees entered in the Previous Action before Plaintiff can continue to proceed in this action. Estate of McGrail v. Rosas, 691 So.2d 50, (Fla. 4th DCA 1997) [22 Fla. L. Weekly D911b]; Bubani v. Rogers, 363 So.2d 181 (Fla. 4th DCA 1978); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976); see also Field v. Nelson, 380 So.2d 547 (Fla. 2d DCA 1980).

The Court has no discretion as is required to render an order for the payment of the Final Judgment for Attorney’s Fees in the Previous Action and this Court is required stay the new  action including discovery until Plaintiff  has paid the judgment for costs and fees.

SSS INVESTMENTS GROUP INC, vs.  DANIELSON,  County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-015727-O, Division 70. January 23, 2013. Andrew L. Cameron, Judge.   20 Fla. L. Weekly Supp. 436a.  Online Reference: FLWSUPP 2004SSS

Verification of complaint by employee of “contractual servicer” for the plaintiff and not plaintiff itself did not satisfy requirements of rule 1.110

Tags

complaint, Fla. R. Civ. P. 1.110, florida, foreclosure, vefification

A Complaint for mortgage foreclosure contained a verification by an employee of the “contractual servicer” for the Plaintiff and not the Plaintiff itself.

The court noted that in adopting the amendment to Fla. R. Civ. P. 1.110 which implemented the verification requirement, the Florida Supreme Court stated:

The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re Amendments to Fla. R. Civ. P., 2010 WL 455295, at *I, 1 (Fla. Feb. 11, 2010) (emphasis added).

The Court then made a finding that the Florida Supreme Court clearly intended that foreclosure complaints are to be verified by the Plaintiff, not the servicer.

Because the subject Complaint was verified by the servicer, it does not comply with Fla. R. Civ. P. 1.110.   The court dismissed the foreclosure,  granting the Plaintiff  sixty (60) days  to file an amended complaint verified by the Plaintiff.

U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR MASTR ASSET BACKED SECURITIES TRUST 2006-HE2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006- HE2, v. MAYO. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 12003183CI. December 28, 2012. Amy M. Williams, Judge.   Online Reference: FLWSUPP 2004USBA

See also

HSBC BANK, vs. WIGLEY. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 12004342CI. January 24, 2013. John A. Schaefer, Judge.  Online Reference: FLWSUPP 2004WIGL.

Tenant’s post judgment bankruptcy did not operate as automatic stay of eviction

Tags

1.550(b), bankruptcy, florida, LANDLORD, stay, TENANT

A landlord had obtained a judgment of possession and a writ of possession had issued.  The tenant then declared bankruptcy and filed a motion to stay the writ of possession based on the automatic stay of state court proceedings pending  resolution of the bankruptcy.   The tenant did not appear for the hearing on his motion.  The landlord produced the tenant’s bankruptcy filing at the hearing.

The judge in the eviction case found that the clerk of the bankruptcy court notified the parties that the petition omitted the required certification of a state law cure of the monetary default and rental deposit pursuant to 11 U.S.C. § 362l(1) and (2). The notice attached a certified copy of the bankruptcy docket “reflecting. . .the applicability of the exception to stay under 11 U.S.C. Section 362(b)(22).” That provision states “The filing of a [bankruptcy] petition under section 301, 302, or 303 of this title. . . does not operate as a stay — subject to subsection (l), under subsection (a)(3), of the continuation of any eviction . . . involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor.”(Emphasis added).

This provision is relevant because tenant’s  petition was filed after entry of the final judgment for possession. Even with the proper certifications and rent deposit, though, Section 362(b)(22) applies to lift the automatic stay 30 days after the bankruptcy petition is filed unless the tenant certifies a complete cure of the monetary default within the 30 day period. 11 U.S.C § 362(l)(1) and (2).

In this case, where there is a documented lack of the tenant’s certification and rent deposit, §362(b)(22) applies “immediately” upon the filing of the petition to lift the automatic stay. 11 U.S.C. § 362(l)(4). As a result, the bankruptcy petition filed by the tenant on  did not operate as an automatic stay to the continuation of this eviction of residential tenants. The landlord  may now “complete the process to recover full possession of the property” without the necessity of an order granting relief from the stay. Id.

Consequently, tenant’s motion to stay the pending alias writ of possession and vacate the order granting the landord’s  motion for alias writ of possession  was denied and an alias writ of possession was issued.

__________________

The court’s treatment of this request for a stay of execution of a writ of possession and the plaintiff’s opposition to that request is guided by Florida Rule of Civil Procedure 1.550(b). That rule requires a motion and notice to all adverse parties. There is no mention in the rule of the necessity for a hearing. Further, the rule places a burden of “good cause” on the party seeking the stay. Here, the reviewing judge found implicitly that, based on the documents submitted, no good cause existed for a stay of the writ of possession. This proceeding does not change that judicial analysis.

WDOP SUB I, LP dba Brookwood Club Apts., vs. PEREZ. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2012-CC-12262, Division P. December 4, 2012. Angela Cox, Judge. Online Reference: FLWSUPP 2004WDOP

Mortgagee failed to satisfy condition precedent where notice of intent to foreclose did not comply with language of mortgage

Tags

condition precedent, florida, foreclosure, mortgage, paragraph 22

Defendants moved to dismiss a mortgage foreclosure on the basis that the “notice of intent to foreclose” sent by Plaintiff to Defendants complied with the notice requirements of clause 22 of the mortgage.

Clause 22 of the mortgage provides, in pertinent part, that

[Plaintiff] shall give notice to [Defendant] prior to acceleration following Borrower’s [alleged] breach of any covenant or agreement in this Security Instrument. . .The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security agreement, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform [Defendant] of the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of [Defendant] to acceleration and foreclosure.

 The word “shall” in the mortgage created conditions precedent to Plaintiff’s alleged right to foreclosure of the security instrument. Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1164c].

The language of clause 22 of the mortgage is clear and unambiguous. Id.   Nevertheless, the notice of intent to foreclose filed by Plaintiff does not comply with the clear and unambiguous language of Clause 22.  As a result, Plaintiff failed to satisfy a condition precedent to its alleged right to foreclose the mortgage.  Judgment for Defendant.  Case dismissed.

SUNTRUST MORTGAGE, INC, v. ALJISAR,   Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 12-000989-CI-19. December 7, 2012. Amy M. Williams, Judge. Online Reference: FLWSUPP 2004SUNT

See also

SUNTRUST MORTGAGE, INC. v.  CHUTE, Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 11-8210-CI-19. January 16, 2013. Honorable Amy M. Williams, Judge.Online Reference: FLWSUPP 2004CHUT

the notice of intent to foreclose filed by Plaintiff did not substantially comply with Clause 22 because the notice provides that Defendants “have the right to bring a court action at any time to assert the non-existence of default or any other defenses [Defendants] might have to acceleration and sale.” The mortgage requires that the notice state that Defendants “have the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of [Defendants] to acceleration and foreclosure.”

Standing to sue

Tags

corporation, eviction, florida, LANDLORD, standing, substitution, TENANT

The Plainitff  was the president of  a corporation that owned  the subject property in an eviction.   The tenant filed a motion to dismiss on standing.  The court ruled that being the president of the “landlord”   does not allow a person to file suit in his own  name.

The Plaintiff  tried to move to substitute the Corporation for the individual ,  but the Court ruled that the Florida Rules of Civil Procedure do not authorize “the dropping of all parties on one side and the substitution of a new party.” Trawick, Fla. Prac. and Proc. § 4:11 Substitution (2011 Edition).

Where the named plaintiff is not the landlord, the proper procedure is to dismiss this action without prejudice and for the landlord to bring a proper action against the tenants.

PLANTE vs. ORDUNA County Court, 10th Judicial Circuit in and for Polk County. Case No. 53-2012-005144-0000-LK. January 2, 2013. Robert L. William, Judge. 20 Fla. L. Weekly Supp. 282b.