Error to grant summary judgment of foreclosure while discovery is outstanding

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assignment, defense. summary judgment, discovery, error, florida, foreclosure, mortgage, motion to compel, note, outstanding discovery, standing

DILCIA OSORTO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Natixis 2007-HE2, Appellee. 4th District. Case No. 4D10-3631. March 28, 2012.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Judge; L.T. Case No. 2008CA034095AW.

(Polen, J.) Appellant, Dilcia Osorto, appeals the trial court’s final order granting summary final judgment through a final judgment of foreclosure. We find in favor of Osorto and hold that the trial court granted summary judgment prematurely where there were outstanding discovery requests. As such, we reverse and remand for discovery to be completed.

What happens to your tenancy when a foreclosure has been filed against your landlord ?

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apartment, condominium, florida, foreclosure, LANDLORD, landlord in foreclosure, lease, protecting tenants in foreclosure, rental agreement, TENANT

If the landlord has not been paying the mortgage on the property you are renting, the mortgage company can file a lawsuit to have the property auctioned off to pay the loan.  This is called a foreclosure.

The lender will file a complaint in the Circuit Court of the County in which your property is located.

The lender will then issue a summons to all interested parties, including you, the tenant.

If someone came to your door and handed you or anyone in your household over 15 years old,  court papers, then you have been served.

Everyone served will have 20 days to respond to the court.

It does not count if they leave the papers at your door.

Once you have been served, the court has the authority to terminate your tenancy  at the end of the foreclosure.

As a tenant, if your lease began before the foreclosure was filed,  the lender has to let you live out your lease term.   If your lease started after the foreclosure was filed,  your lease will end when  the court auctions the leased premises off.  Foreclosure’s can take years to finish, and sometimes the lender looses the case. So dont panic !

How to check the status of the foreclosure

You need to keep track of the case so you will know well in advance when the foreclosure auction will happen.    You can check the status of the foreclosure on the Clerk of Court’s website.

In Broward that is   http://www.BrowardClerk.org

• Choose “online Services”
• Public Access Search
• Click here:  http://www.clerk-17th-flcourts.org/Clerkwebsite/BCCOC2/OdysseyPA/CaseSearch.aspx?SelectCourt=true&DisplayCitation=no&DisplayHearing=yes&DisplayType=Civil
• Party name:  type in the landlord’s name

A list of cases will come up.  Click on a case to see the “docket”    It will show you the 3 most recent events in the case.

Reference the foreclosure timeline below to see how far along your case is.

You can also try calling the Clerk at 954-831-5745 and tell them the case number which is on the upper right corner of the court papers.

FORECLOSURE TIMELINE

These are the steps in a foreclosure case so you can see how far along your foreclosure is:

1.   Complaint filed & summons issued.  Everyone has 20 days to respond to the court
2. Returns of service will be filed –  indicating the party was served or not served.
3. Publication:  the lender can publish a notice in the newspaper against those parties not personally served.
4. Affidavits filed:  in preparation for a motion for summary judgment the lender will file affidavits of costs and amounts due and owing
5. Motion for summary judgment
6. Notice of hearing (  must be no sooner than 20 days after the motion was filed and no sooner than five days before the hearing)
7. Hearing for Summary Judgment:  this is a 5 minute hearing based on the fact that no one has contested the foreclosure.  If the lender’s papers are in order the foreclosure will be granted and the Clerk of Court will set a “sale date”  on which the property will be auctioned off on the internet. The sale date is generally 6-8 weeks after the judgment.
8. Sale Date:  if the sale was not cancelled and the sale went through,  you will see the sale noted on the docket.   Your landlord no longer owns the property.
9. Certificate of title:  ten days ( or longer ) after the sale the court will issue a deed to the highest bidder at the sale called a “certificate of title.”
10. If the buyer is not the lender, but a 3^rd party who is going to move in themselves,  they can apply to the court for a “writ of possession”  to have the sheriff kick you out.   If the lender takes title,  it has to give you a 90 Day written notice to move,  before they can apply for a writ of possession.  The 90 days does not start until you get the notice.
11. If your lease started before the foreclosure was filed,   the buyer has to let you live out your lease.

People will tell you that you don’t have to pay the rent anymore if the landlord is in foreclosure.   That is not true.    The foreclosure does not legally affect your lease until the property is auctioned off.   If you don’t pay the rent,  the landlord can still evict you.

SECURITY DEPOSIT:   There is nothing that protects your security deposit in the event of a foreclosure.

CONDOMINIUMS

If you are renting a condominium there are a few other concerns.   First,  if the landlord has not been paying the condo dues,  the association can file their own foreclosure.   These foreclosures will move much faster, and generally will finish in less than a year.   The association will usually want to continue renting to you after they have foreclosed  your landlord.

The condo association also has the right to demand the rent directly from you, if the owner has not been paying the dues.   In this case,  the association has to give you a written demand, and they cannot make you pay them rent, that you have already paid the landlord.   Unfortunately for you,  the association will not be responsible for making any repairs.   Once the association has demanded the rent from you,  they  can evict you if you don’t pay them.  But if you have paid rent to the association, the landlord can no longer evict you for not paying that rent to him.

MULTI UNIT BUILDINGS

If  you are renting in a  building of more than four units,  it is considered commercial instead of residential.   In a commercial foreclosure,  the lender will usually try to seize the rent first thing, either by  a court order for you to pay them the rent directly, or by having the court appoint a “receiver”  to  take over management of the building from your landlord.

A landlord by any other name ….

Tags

83.43(3), 83.43(4), 83.43(7), agreement, definition, florida, LANDLORD, lease, relationship, rental, standing, TENANT

As Juliet observed “Tis but thy name that is my enemy …  What’s in a name? that which we call a rose By any other name would smell as sweet” From Shakespeare’s Romeo and Juliet

But as the court observed,  you can have a property owner and an occupant, but if you can’t call them landlord and tenant,  your eviction will be dismissed.

In KEN PHILLIPS AS TRUSTEE OF THE CALIFORNIA SHORT SALE SOLUTIONS TRUST C/O METRO CITY REALTY AND CONDOS INC, Plaintiff, vs. GRACE,  the plaintiff property owner attempted to evict  Grace who was in possession of the property.   The plaintiff produced a lease between a Murphy and the defendant that had expired two years ago.   There was no rental agreement as defined by § 83.43(7) between the  plaintiff and the defendant.    Without a rental agreement,  the court ruled that Grace was not a “tenant” as defined by § 84.43(4),  and plaintiff was not a “landlord” as defined by § 83.43(3), and therefore the remedy of eviction was not available. “A property owner may only bring an eviction action under § 83.59, Fla. Stat. when there is a landlord and tenant relationship between the parties.”

KEN PHILLIPS AS TRUSTEE OF THE CALIFORNIA SHORT SALE SOLUTIONS TRUST C/O METRO CITY REALTY AND CONDOS INC, Plaintiff, vs. GRACE. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2011-CC-019218-O, Division 72. February 24, 2012. Wilfredo Martinez, Judge. FLWSUPP 1906PHIL

Abandonment

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715, 83.59, 83.67(5), abandoned, abandonment, agreement, florida, LANDLORD, lease, property, TENANT

Florida Statutes 83.59(c) provides that when the tenant has been absent from the premises without explanation for half of a rent payment period, and the rent is delinquent, the landlord may presume abandonment.   The disposition of the tenant’s personal property is governed by Chapter 715 of Florida Statutes which provides six single spaced pages of rules (see below).  Alternatively 83.67(5) provides

If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant’s personal property; if provided in the rental agreement, there must be printed or clearly stamped on such rental agreement a legend in substantially the following form:

BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY.

In the case of SHORTER HOME SOLUTIONS, LLC,, vs. KINGDOM, ( Broward County Court  2010), 17 Fla. L. Weekly Supp. 220a,  the tenant was on a one year lease terminating 8/31/09 and receiving housing assistance from the City of Fort Lauderdale.  The tenant stopped paying his portion of the rent in June, and in July he traveled to Mississippi without notifying the landlord.  The City of Fort Lauderdale terminated the rent assistance and did not pay August rent.   On August 20^th,  the landlord declared the property abandoned at  removed the tenant’s belongings to the curb,  which is where the tenant found them upon his return.   Thereupon they filed suit against each other.   The court consolidated the cases and ruled that the landlord was not required to file an eviction as the tenant had legally abandoned the premises by failing to notify the landlord he would return,  the rent being delinquent, and the tenant being absent past the 15^th of the month.   The court ruled that the landlord was thus entitled to remove the tenant’s belongings and  denied the tenant any relief for the loss of his property.  In fact,   the judge entered a money judgment against the tenant for the rent delinquency, costs, and fees.   As the tenant had posted the rent into the court registry in order to contest the case, those funds were disbursed to the landlord.

Following is Chapter 715 “Disposition of Personal Property Landlord and Tenant Act”

Liquidated Damages

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83.575, 83.595, breach, damages, florida, LANDLORD, lease, liquidated damages, non-renewal, notice, real-estate, tenancy, TENANT, termination

The Florida Landlord – Tenant Statute contains two liquidated damages provisions  allowing the landlord an opportunity to impose liquidated damages on the tenant for early termination or for failure to give notice of intent not to renew the lease.

§83.595 (4)  was added to the statute in 2004 to allow the landlord to charge liquidated damages if a tenant breached the lease by vacating before the lease was up  (i.e. an “early termination fee”).  The fee may not be more than two months rent.   For early termination,  the landlord may not require the tenant to give notice of early termination more than sixty days  in advance.  The liquidated damages provision must be contained in a separately signed lease addendum containing a provision in substantially the following form:

☐ I agree, as provided in the rental agreement, to pay $  (an amount that does not exceed 2 months’ rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement, and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes possession.

☐ I do not agree to liquidated damages or an early termination fee, and I acknowledge that the landlord may seek damages as provided by law.

 §83.575  was also added to the landlord tenant statute in 2004  allowing the landlord to require the tenant to provide up to 60 days notice of intent to vacate at the end of a rental agreement of fixed duration,  or face liquidated damages for failing to notify the landlord that the tenant is not renewing the lease.   The statute, however,  requires the landlord to first  provide the tenant a “reminder notice”  of the liquidated damages 15 days before the tenant’s notice period expires.

Otherwise,  if the tenant remains on the premises after the lease has expired the  tenant would be liable for the month in which they held over,  plus one extra month damages if it was WITH PERMISSION 836.575 (3),  or double rent per-diem under 83.58 if it was WITHOUT PERMISSION

Big Girls Don’t Cry

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abandonment, accelerated, breach, default, early, florida, LANDLORD, late fee, rent, tenancy, TENANT, termination

Commercial tenant’s refusal to pay a $240.20 late fee ends up costing him $169,297.77 !

Special Servicer failed to establish standing to foreclose absent evidence of authority from holder

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broward, CW capital, ELSTON/LEETSDALE, florida, foreclosure, J.P. Morgan Chase, LLC, mortgage, servicer, special, standing, U.S. Bank

ELSTON/LEETSDALE, LLC, v. CWCAPITAL ASSET MANAGEMENT LLC, solely in its capacity as Special Servicer on behalf of U.S. Bank, N.A., Successor to State Street Bank and Trust Company, as Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., MortgagePass–Through Certificates, Series 2001–C1BC1.  — So.3d —-, 2012 WL 1108531 Fla.App. 4 Dist.,2012.  April 4, 2012.

Elston executed a note and mortgage in favor of First Union National Bank, which subsequently assigned them to  to Morgan Guaranty Trust Company of New York,  which assigned them to State Street Bank and Trust Company, as Trustee for J.P. Morgan Chase Commercial Mortgage Securities Corp., Series 2001–C1BC1 (the Trust).

The caption of the verified complaint states that the underlying action is brought by CW “solely in its capacity as special servicer on behalf of U.S. Bank, N.A.” In the complaint, CW alleges, and verifies as true, that it “has been and is duly authorized by the Trust to prosecute this action as agent and special servicer for the Trust.” However, CW did not file any evidence, affidavits or other documents, supporting its allegation that it was authorized to prosecute the action on behalf of the trust, as was done in Kumar, Juega ( real party in interest filed an affidavit affirming the authority to act in its behalf) and Chicago Properties ( Trustee filed affidavit ratifying authority to sue on its behalf). Although CW’s complaint is verified, it is verified by the “SVP” for CW—not by the real party in interest, the trust. CW relies on nothing more than its own allegations and affidavit to support its argument that it has standing to sue on behalf of the trust. This is insufficient evidence to prove that it is authorized to sue on the trust’s behalf.

In securitization cases, a servicer may be considered a party in interest to commence legal action as long as the trustee joins or ratifies its action. In re Rosenberg, 414 B.R. 826, 842 (Bankr.S.D.Fla.2009) (emphasis added). In CWCapital Asset Management, LLC v. Chicago Properties, LLC, 610 F.3d 497 (7th Cir.2010), the Seventh Circuit found that CW, as a special servicer to a loan, had  standing to bring an action in its own name against a mortgagor and landlord for money paid by a tenant in settlement of a suit for unpaid rent. Id.at 499–500. Significantly, however, in opposition to the defendant’s motion for judgment on the pleadings (based on CW’s lack of standing), CW filed an affidavit of the trustee, which was not contradicted, ratifying the servicer’s (CW’S) commencement of the lawsuit. Id. at 502 (emphasis added). Additionally, the pooling and servicing agreement was placed in evidence as additional evidence that CW’s principal granted CW authority to enforce the debt instruments that CW neither owned nor held. Id. at 501.

Order for borrower to make interim payments to Plaintiff Reversed and remanded

 

Summary judgment reversed on appeal where Plaintiff failed to establish it had standing to sue at the time it filed the complaint

Tags

4th DCA, appeal, assignment, broward, florida, foreclosure, mortgage, note, option one, reverse, Rigby, standing, wells fargo

Plaintiff WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2007–FXD2 ASSET–BACKED CERTIFICATES, SERIES 2007–FXD2,  filed a foreclosure complaint on 5/21/08.  The mortgage attached to the complaint named Option One as mortgagee.   Subsequently Wells Fargo filed an assignment of mortgage from Option One dated 5/22/08  as well as the undated original note containing a special endorsement in favor of Wells Fargo, and an Affidavit swearing that Wells Fargo was the owner of the note.   The appellate court ruled that as the assignment was dated post suit, and as the note was undated, and as the affidavit did not state the date of assignment,   Wells Fargo had failed to establish is was the owner and holder of the note at the time of filing the complaint to foreclose.   Summary judgment of foreclosure reversed.

Rigby v. Wells Fargo,  — So.3d —-, 2012 WL 1108428,  Fla.App. 4 Dist.,2012. April 04, 2012. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County.

Raising the rent

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change of lease terms, florida, LANDLORD, lease, raise the rent, rent, TENANT, terms

The lease terms can not be unilaterally changed in the middle of the tenancy.  When the tenancy is up for renewal, however either of the parties may choose not to renew the tenancy,  or to change the terms.   If the tenancy is month to month,  the landlord may terminate the tenancy pursuant to 83.57 F.S.  by providing 15 days notice.  The notice must be served according to 83.56(4) by mailing or personal delivery,  of if the tenant is absent from the premises, by posting.  In said notice,  the landlord may propose new terms for the next monthly tenancy.   The tenant then has the choice to remain,  accepting the new terms,  or to reject the  new terms by vacating at the end of the monthly rental period.

If the notice is not provided, is defective, or not properly served,  then the lease is not terminated and no changes have been made.

Here is a form that you can use to change the lease terms.

Notice of new lease terms