Livinglies's Weblog

Hat tip to Carlton Fields at https://www.carltonfields.com/real-property-case-law-blog/blog.aspx?topic=161&All=null&IsListParentTopic=true

I have excerpted their case summaries relevant to foreclosure. They did a great job of providing key words for searches.

• Foreclosure/Standing: final judgment of foreclosure reversed for failure to prove standing at the inception of lawsuit – Verizzo v The Bank of NY Mellon, Case No. 2D15-2508 (Fla. 2d DCA June 21, 2017).
• 3d DCA June 21, 2017) (involuntary dismissal reversed).
• Foreclosure/Surplus: pursuant to section 45.033, Florida Statutes, surplus foreclosure proceeds are generally disbursed to owner of record (except in certain limited circumstances) and trial court erred by disbursing the proceeds to purchaser at foreclosure sale – Rodriguez, et al. v Federal National Mortgage Assoc., Case No. 5D17-196 (Fla. 5th DCA June 23, 2017) (reversed and remanded)
• Foreclosure/Conditions Precedent: testimony of lender’s practice of creating and mailing breach letters and business record reflecting mailing raised a presumption that a breach letter was mailed to the borrower by first class mail in accordance with standards and in compliance with the mortgage’s notice requirements – Citibank, N.A., Trustee, et al. v Manning, et al., Case No. 4D15-4526 (Fla. 4th DCA June 21, 2017)

• Foreclosure: “[w]ithout evidence showing that a modified credit agreement exists [between a foreclosing bank and a borrower, a] modified mortgage is insufficient to establish the increased amount [the foreclosing bank] claims it is owed” – Chuchian v. Situs Investments, LLC, Case No. 5D15-2125  (Fla. 5th DCA June 2, 2017) (reversed and remanded).

• Foreclosure/Standing/Lost Note: if plaintiff did not have right to enforce note when lost, plaintiff should present evidence of assignment from payee to plaintiff or affidavit of ownership – Peters v. The Bank of New York Mellon, Case No. 2D15-2222 (Fla. 2d DCA May 26, 2017) (Reversed and remanded with directions.)
• Foreclosure/Standing/Assignment: assignment of mortgage, but not note, insufficient to prove standing – Peters v. The Bank of New York Mellon, Case No. 2D15-2222 (Fla. 2d DCA May 26, 2017) (Reversed and remanded with directions.)
• Foreclosure/Standing: lender failed to prove standing because original allonge to note not filed before or at trial – Mathis v Nationstar Mortgage, LLC, Case No. 2D15-2782 (Fla. 2d DCA May 26, 2017) (Reversed and remanded with directions.)
• Condition Precedent/Foreclosure: notice to borrower of terms of default and action required to cure constitutes substantial compliance with paragraph 22 default notice in mortgage – U.S. Bank National Assoc., Trustee v Doepker, Case No. 2D15-5307 (Fla. 2d DCA May 24, 2017) (Reversed and remanded.)
• Due Process: violation of procedural due process occurred when trial court considered and adjudicated matters beyond those noticed for hearing – Nationstar Mortgage, LLC v Weiler, Case No. 2D16-1607 (Fla. 2d DCA May 26, 2017) (Reversed and remanded.)
• Standing/Foreclosure: lender not entitled to evidentiary inference that it possessed original note at time of filing foreclosure action because copy attached to complaint did not have loan numbers and, therefore, was not “identical” to original note, with loan numbers – Friedle v The Bank of NY Mellon, et al., Case No. 4D15-1750 (Fla.  4th DCA May 24, 2017)
• Vacating Dismissal: voluntary dismissal filed by clerical error should have been vacated pursuant to 1.540(b) where evidence showed inadvertence of filing – Wells Fargo Bank, N.A. v Rojas, Case No. 4D16-4301 (Fla. 4th DCA May 24, 2017) (Reversed and remanded.)
• Lis Pendens: possible financial harm, by way of loss of potential sale of property, not enough to show requisite irreparable harm imposed by trial court’s denial of motion to dissolve lis pendens – Landmark at Crescent Ridge, L.P. v. Everest Financial, Inc., No. 1D16-4532 (Fla. 1st DCA May 16, 2017) (petition for writ of certiorari dismissed)
• Proposal for Settlement: proposal for settlement complied with rule 1.442 in inverse condemnation case where plaintiff did not raise any equitable claims for relief in its complaint – Polk County v. Highlands-in-the-Woods, L.L.C., No. 2D15-5642 (Fla. 2d DCA May 19, 2017) (reversed and remanded)
• Foreclosure/Attorneys’ Fees: plaintiff not entitled to attorneys’ fees where failed to present expert testimony as to reasonableness of attorney’s hourly rate and hours expended – Sciandra v. Pennymac Corp., No. 2D15-5189 (Fla. 2d DCA May 19, 2017) (affirmed in part; reversed in part; remanded with instructions)
• Foreclosure/Statute of Limitations: accrual of cause of action for each missed monthly installment payment accrues the day after each is due to be paid, not on the date of acceleration of entire balance – Ventures Trust 2013-I-NH v. Johnson, No. 5D16-1020 (Fla. 5th DCA May 19, 2017) (affirmed)
• Short Sale/Statute of Limitations:  one-year statute of limitations to bring deficiency action, contained in Florida Statute 95.11(5)(h), is not applicable to an action after a short sale – Bush v. Whitney Bank et al., No. 5D16-2344 (Fla. 5th DCA May 19, 2017) (affirmed)

Closing instructions: issue of whether purchaser provided closing instructions and whether instructions were required by law, policy, custom or practice to be in writing is a genuine issue of material fact underlying breach of contract action, where closing agent who was provided with borrower’s verbal closing instructions was title insurer’s escrow, title and closing agent – Johnson v. U.S. Title Agency, Inc., Case No. 103665 (Ohio Dist. Ct. App. May 18, 2017) (reversing and remanding summary judgment)

Closing instructions: borrower has standing to bring action against closing, title and escrow agent for agent’s failure to comply with lender’s closing instructions where instructions contained a provision that agent will be liable for bank’s losses – Johnson v. U.S. Title Agency, Inc., Case No. 103665 (Ohio Dist. Ct. App. May 18, 2017) (reversing and remanding summary judgment)

Created, Suffered or Assumed: insured not required to act intentionally or wrongfully under Exclusion 3(a); rather, the Exclusion applies if the insured either expressly or impliedly assumed or agreed to the defects or encumbrances in the course of purchasing the property involved – Bank of America v. Chicago Title Ins. Co., Case No. 17 C 0407 (N.D. Ill. May 18, 2017) (denying motion to dismiss counterclaim)

Fraudulent Transfers: Utah’s Fraudulent Transfer Act does not provide a cause of action against individual directors of a corporate entity, and unless insurer brings a claim to pierce the corporate veil against the corporate entity causing the transfer it cannot prevail against the principals of the corporation – First American Title Ins. Co. v. Nat’l Title Agency, LLC, Case No. 2:13CV1055DAK (D. Utah, May 19, 2017) (granting summary judgment)

• Foreclosure/Attorneys’ Fees: mortgage foreclosure plaintiffs seeking attorney’s fees must support their claim with competent, substantial evidence of the number of hours worked and evidence that those hours and hourly rate are reasonable – Henderson v. Onewest Bank FSB, No. 1D16-2670 (Fla. 1st DCA April 18, 2017) (reversed and remanded in part).
• Foreclosure/Standing: plaintiff failed to provide evidence that indorsee had intent to transfer any interest to plaintiff when note was transferred into trust – Shaffer v. Deutsche Bank National Trust, as Indenture Trustee for American Home Mortgage Investment Trust 2006-1, Mortgage Backed Notes, Series 2006-1, No. 2D14-4205 (Fla. 2d DCA April 19, 2017) (reversed and remanded).

• Foreclosure/Lack of Prosecution: “close enough” is not “good enough” where plaintiff’s good cause showing was filed 4 days before hearing, as opposed to minimum 5 day requirement under rule 1.420(e) – Held v. U.S. Bank National Association, as Trustee for C-BASS 2007-CB7 Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-CB7, et al., No. 4D15-499 (Fla. 4th DCA April 19, 2017) (reversed and remanded).
• Foreclosure/Standing: plaintiff, as nonholder in possession, failed to prove series of transactions through which it acquired note starting with first holder of note – Powell v. Wells Fargo Bank, N.A. as Trustee for Structured Asset Mortgage Investments II, Inc., GreenPoint Mortgage Funding Trust 2006-AR2, Mortgage Pass-Through Certificates, Series 2006-AR2, No. 4D15-3013 (Fla. 4th DCA April 19, 2017) (reversed and remanded).
• Foreclosure/Appeal: order granting summary judgment for borrowers and dismissing case without prejudice to lender’s filing a new foreclosure action was final appealable order – Bank of New York Mellon v. Swain, No. 5D16-139 (Fla. 5th DCA April 21, 2017) (dismissed).
• Foreclosure/Conditions Precedent: plaintiff’s notice of default substantially complied with notice provision contained in paragraph 22 of mortgage – U.S. Bank Trust, N.A., etc. v. Wellman, No. 3D15-1368 (Fla. 3d DCA Apr. 12, 2017) (reversed and remanded)
• Dismissal with Prejudice: trial court improperly dismissed with prejudice pro se plaintiff’s complaint against lender for, among other things, unauthorized entry and conversion of personal property, and plaintiff should have been permitted to amend – Hanna-Mack v. Bank of Am., N.A., No. 3D16-1897 (Fla. 3d DCA Apr. 12, 2017) (reversed and remanded to permit amendment of complaint)
• Foreclosure/Assignment of Rents: where there was no agreement between the parties to assign rents or other basis for sequestering rents, and the rents were not the subject of the litigation, trial court lacked authority to order that rents be deposited into court registry – UV Cite III, LLC v. Deutsche Bank Nat’l Trust Co., as Trustee, No. 3D16-2341 (Fla. 3d DCA Apr. 12, 2017) (reversed and remanded)
• Foreclosure/Attorneys’ Fees: party that successfully prevailed in obtaining dismissal with prejudice of foreclosure action based on lack of standing pursuant to contract sued upon not entitled to an attorneys’ fees award pursuant to contract’s attorneys’ fee provision – Nationstar Mortg. LLC v. Glass, No. 4D15-4561 (Fla. 4th DCA Apr. 12, 2017) (denying motion for fees, and denying without prejudice request for costs)
• Foreclosure/Reverse Mortgage: language in reverse mortgage was patently ambiguous regarding whether spouse of decedent was a “borrower” under its terms, and extrinsic evidence was necessary to resolve this factual question – Nationstar Mortg. Co. v. Levine, No. 4D16-615 (Fla. 4th DCA Apr. 12, 2017) (reversing entry of summary judgment)
• Foreclosure/Business Records Hearsay Exception: bank satisfied predicate necessary for admission of prior servicers’ loan payment histories, having presented detailed testimony regarding the “on-boarding” process utilized by current servicer to verify information received from prior servicers – Bank of New York Mellon f/k/a Bank of New York Successor Trustee v. Vessels, No. 5D15-4248 (Fla. 5th DCA Apr. 13, 2017) (reversed and remanded for new trial on issue of damages)

Foreclosure: foreclosing bank’s allegation that borrowers were in a continuing state of default sufficient to satisfy five-year statute of limitations even though stated initial default date was more than five years prior to foreclosure complaint – Desylvester v. Bank of New York Mellon, Case No. 2D15-5053  (Fla. 2d DCA February 22, 2017) (affirmed) Appellate Jurisdiction:  denial of motion to vacate writ of possession not an appealable non-final order because not set forth in Rule 9.130(a)(3) – Nacius v. One West Bank, FSB, Case No. 4D16-2853 (Fla. 4th DCA February 22, 2017) (appeal dismissed) Foreclosure; Intervention: intervention by purchaser of real property after final judgment of foreclosure entered should not have been allowed; trial court departed from essential requirements of law in permitting purchaser to intervene – Federal National Mortgage Association v. Gallant, Case No. 4D16-3152  (Fla. 4th DCA February 22, 2017) (quashing order and remanding) Foreclosure; Paragraph 22: summary judgment improper where foreclosing bank failed to include mention of its paragraph 22 acceleration letter in affidavit in support of summary judgment to show it complied with conditions precedent to foreclose – Galloway v. Suntrust Bank, et al., Case No. 5D14-2878  (Fla. 5th DCA February 24, 2017) (reversed and remanded) Foreclosure/Vacating Judgment: estate failed to either allege or prove any basis under Rule 1.540 to vacate final judgment of foreclosure to which it had consented – The Bank of N.Y. Mellon v. Estate of Peterson, No. 2D16-2405 (Fla. 2d DCA Jan. 18, 2017) (reversing and remanding for reinstatement of final judgment). Foreclosure/Claim for Surplus Funds: sec. 45.031, Fla. Stat. requires that any person claiming a right to surplus funds file a claim with the clerk no later than sixty days after the foreclosure sale itself, not within sixty days of the certificate of sale, and, therefore, bank’s claim for surplus funds untimely  – The Bank of N.Y. Mellon, as Trustee v. Glenville, No. 2D15-5198 (Fla. 2d DCA Jan. 20, 2017) (affirmed) Foreclosure/Vacating Judgment: trial court lacked jurisdiction to entertain borrower’s motion to vacate foreclosure judgment, which asserted lender’s counsel committed fraud on court in representing that borrower and her counsel were not present in the court room for trial when their case was called, because borrower’s motion was filed over a year after entry of judgment and, therefore, was untimely under rule 1.540(b)(3) – Romero v. Wells Fargo Bank, N.A., as Trustee, No. 2D15-5270 (Fla. 2d DCA Jan. 20, 2017) (vacating and remanding with instructions) Deficiency/Subject Matter Jurisdiction: approving the 3d DCA’s opinion that an assignee of a foreclosure judgment can maintain a separate action for deficiency under Florida Statutes, Section 702.06, even when foreclosure court retains jurisdiction to adjudicate deficiency in foreclosure action – Dyck-O’Neal, Inc. v Konstantino, Case No. 2D15-4064 (Fla. 2d DCA Dec. 9, 2016) (reversed and remanded; certifying conflict with Higgins v. Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016), certified)). Default: Florida Rule of Civil Procedure 1.500 precludes entry of default when defendant has served response to complaint, even if response was not filed within the time granted by the trial court – Sansbury v Wells Fargo Bank, N.A., Case No. 5D15-1956 (Fla. 5th DCA Dec. 9, 2016) (reversed and remanded). Foreclosure/Conditions Precedent: a breach of a condition precedent does not preclude the enforcement of an otherwise valid contract, absent some prejudice – Liberty Home Equity Solutions, Inc. v Raulston, et al., Case No. 4D15-3652 (Fla. 4th DCA Dec. 7, 2016) Foreclosure/Standing: attaching a copy of the note to the complaint and presenting the original note in the same condition at trial creates an inference that the plaintiff was in actual possession of the note at the time the complaint was filed, which, absent evidence to the contrary, is sufficient to establish standing – The Bank of NY Mellon v Milford, et al., Case No. 4D15-4813 (Fla. 4th DCA Dec. 7, 2016). Foreclosure/Lack of Jurisdiction: trial court lacked jurisdiction to impose sanction against bank for filing allegedly frivolous foreclosure action because bank had voluntarily dismissed the case within the safe harbor period under section 57.105(4), Florida Statutes – Bank of Am. v. Turkanovic, No. 1D16-3416 (Fla. 1st DCA Dec. 1, 2016) (granting bank’s petition for writ of prohibition) Foreclosure/Improper Expert Testimony: trial court, in finding that trust lacked standing, relied solely on improper legal conclusions of borrower’s expert that trust documents did not allow for trust to acquire subject note and that trust was not the holder of the note – Citibank, N.A., etc. v. Olsak, No. 3D15-1032 (Fla. 3d DCA Nov. 30, 2016) (reversing involuntary dismissal, and remanding for further proceedings) Foreclosure/Authenticity of Signature: even though borrower failed to place bank on notice in her pleadings that she was challenging the authenticity or validity of her signature, trial court allowed borrower to present testimony on that issue, and trial court’s ultimate determination that borrower signed the loan documents was supported by competent, substantial evidence – Polonsky v. HSBC Bank USA, N.A., etc., No. 3D16-371 (Fla. 3d DCA Nov. 30, 2016) (affirmed) Foreclosure/Attorneys’ Fees: because defendants ultimately placed plaintiff bank on notice of their unpled claim for attorneys’ fees, and bank failed to timely object to defendants’ failure to plead entitlement, trial court’s judgment awarding attorneys’ fees to defendants was proper – BankUnited, N.A. v. Ajabshir, No. 3D16-872 (Fla. 3d DCA Nov. 30, 2016) (affirmed) Foreclosure/Damages: bank provided competent, substantial evidence of some, but not all, of its damages in foreclosure action – Tervil v. U.S. Bank, Nat’l Ass’n, as Trustee, No. 4D15-2561 (Fla. 4th DCA Nov. 30, 2016) (affirmed in part, reversed in part, and remanded with instructions) Foreclosure/Condition Precedent: trial court erred by requiring borrower to raise bank’s noncompliance with condition precedent, specifically the HUD regulation’s requirement under 24 C.F.R. § 203.604 concerning face-to-face counseling, as an affirmative defense where borrower specifically denied the bank’s compliance with that HUD regulation in her answer, thereby shifting burden back to bank to prove such compliance at trial – Palma v. JPMorgan Chase Bank, Nat’l Ass’n, et al., No. 5D15-3358 (Fla. 5th DCA Dec. 2, 2016) (reversed, and remanded with instructions to enter an involuntary dismissal) Foreclosure/Intervenor: intervenor cannot inject an unpled, waived defense of a defaulted party for the court’s adjudication – Ventures Trust 2013-I-H-R, as successor in interest to JPMorgan Chase Bank, National Association. v. Asset Acquisitions and Holdings Trust, No. 2D15-1923 (Fla. 2d DCA October 28, 2016) (reversed and remanded). Foreclosure/Default Notice/Summary Judgment Evidence: defendants’ summary judgment and dismissal of complaint reversed where defendants’ affidavits were insufficient on their face to establish entitlement to judgment as a matter of law, where affidavits did not address whether plaintiff fulfilled the notice requirement by sending the notice via first class mail – JPMorgan Chase Bank N.A. v. Ostrander, No. 2D15-3935 (Fla. 2d DCA October 28, 2016) (reversed and remanded). Foreclosure/Standing: plaintiff failed to establish it had standing to foreclose, where only proof of standing was a screen shot of a computer-generated document referred to as a Loan Transfer History – Miller v. Bank of America, N.A., et al, No. 5D15-780 (Fla. 5th DCA October 28, 2016) (reversed and remanded). Offers of Judgment/Attorneys’ Fees: offers for settlement that failed to state whether they included attorneys’ and whether attorneys’ fees were part of the legal claim were not invalid where attorneys’ fees were not sought in the pleadings; accordingly, the Florida Supreme Court declined to invalidate offers of judgment solely for violating a requirement of rule 1.442 of the Florida Rules of Civil Procedure that section 768.79, Florida Statutes, does not require – Kuhajda v. Borden Dairy Co. of Alabama, LLC., No. SC15-1682 (Fla. Oct. 20, 2016) Foreclosure/Standing: plaintiff failed to present sufficient proof showing it had standing to enforce a note containing an undated blank endorsement at the time it commenced foreclosure action – Walton v. Deutsche Bank Nat’l Trust Co., as Trustee, No. 1D15-3761 (Fla. 1st DCA Oct. 19, 2016) (reversed and remanded for entry of an order of dismissal) Foreclosure/Subject Matter Jurisdiction: trial court’s jurisdiction in foreclosure action expired prior to entry of summary final judgment because court had previously dismissed bank’s complaint for failure to comply with court order requiring it to file original documents and no rehearing, notice of appeal, or motion for relief was filed – Franklin v. Bank of America, N.A., No. 1D15-4296 (Fla. 1st DCA Oct. 19, 2016) (reversed and remanded for entry of an order of dismissal) Foreclosure/Service of Process: borrower did not waive objection to service of process by making an appearance in case by filing a motion for extension of time to respond to complaint – Keeter v. The Bank of New York Mellon f/k/a The Bank of New York, as Trustee, No. 1D15-1814 (Fla. 1st DCA Oct. 21, 2016) (reversed and remanded for further proceedings) Foreclosure/Jurisdiction: trial court erred in granting motion for leave to amend filed by bank’s successor, which sought to assert counts for breach of promissory note and equitable lien, because a final judgment of foreclosure had already been entered and could not be reversed nor reopened – Garcia v. Christiana Trust, etc., No. 3D16-735 (Fla. 3d DCA Oct. 19, 2016) (granting petition for writ of certiorari and quashing order) Foreclosure: debtor that agreed to “surrender” property in bankruptcy was required to surrender the property to the bankruptcy trustee and secured creditor, and lost right to defend secured creditor’s foreclosure action pending in state court – Failla v Citibank, N.A., Case No. 15-15626 (11 Cir. Oct. 4, 2016) (affirmed) Standing: borrower lacked standing to sue lender for violating statute that required timely recording of satisfaction of mortgage where satisfaction was recorded before borrower filed suit and borrower failed to allege he had suffered damages as a result of the delay – Nicklaw v Citimortgage, Inc., Case No. 15-14216 (11 Cir. Oct. 6, 2016) (appeal dismissed for lack of jurisdiction) Foreclosure/Safe Harbor Limitation on Condo Assessments: holder of note and mortgage, who was not also owner, having foreclosed mortgage on property and purchased it at foreclosure sale, is entitled to the safe harbor limitation of liability on condominium assessments applicable to first mortgagees under section 718.116, Fla. Stat. – Brittany’s Place Condominium Assoc., Inc. v U.S. Bank, N.A., Case No. 2D15-3444 (Fla. 2d DCA Oct. 5, 2016) (affirmed) Foreclosure/Standing: where copy of note attached to foreclosure complaint contained no endorsement and original note presented at trial had endorsement in favor of plaintiff, plaintiff required to prove endorsement occurred prior to filing suit to prove standing – Dhank v. HSBC Bank USA, NA, Trustee, Case No. 2D13-5292 (Fla. 2d DCA Sept. 9, 2016) (judgment reversed) Sanctions/Dismissal With Prejudice: trial court erred by dismissing foreclosure action with prejudice as sanction for plaintiff’s failure to timely file certification of authority prior to mediation, as required by Fla. R. Civ. P. 1.720, where rule provides less severe and more appropriate sanctions – HR Block Bank v. Perry, Case No. 2D15-1351, 1624 (Fla. 2d DCA Sept. 9, 2016). Ejectment: plaintiff proved prima facia case to eject defendant from real property because plaintiff had possession of original deed from grantor, and trial court erred by dismissing claim for plaintiff’s failure to present evidence that grantor was competent at time she signed deed because burden to prove defense fell on defendant – Marcinkewicz v. Quattrocchi, Case No. 3D15-1068 (Fla. 3d DCA Sept. 7, 2016) (affirmed in par, reversed in part and remanded). Foreclosure/Standing: plaintiff failed to prove standing to foreclose mortgage where it did not put in evidence that it had possession of note at time suit filed, and proof that note was part of asset purchase agreement was insufficient to support standing – Diroberto v. Bayview Loan Services, LLC, et al., Case No. 4D15-749 (Fla. 4th DCA Sept. 7, 2016) (judgment reversed) Unjust Enrichment: Title insurer entitled to judgment on unjust enrichment claim when it was forced to pay off borrower’s prior mortgage to protect insured lender due to borrower’s failure to remit loan proceeds for release of prior mortgage, but damages would be reduced based upon borrower’s reasonable reliance on advice of counsel – Fidelity Nat’l Title Ins. Co. v. Harlow, Adams & Friedman, P.C., Case No. CV1160218695 (Conn. Sup. Ct. Jul. 25, 2016) (memorandum decision) Foreclosure/Standing/Hearsay:  copy of a note with undated allonge containing blank endorsement sufficient to establish standing as a matter of law, even though bank did not have formal assignment of mortgage at time of filing complaint; also, certified copy of a publicly recorded document is self-authenticating; thus objection to lack of foundation, as to mortgage, is without merit – Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-12 v. Ousley et al., No. 1D15-2100 (Fla. 1st DCA June 15, 2016) (reversed and remanded) Foreclosure/Notice of Default: applying substantial compliance standard held in Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 13 (Fla 2d DCA 2015), court reasoned that comparison of text of notice letter to requirements of paragraph 22 will often be all that is necessary to enable court to determine whether lender substantially complied with its requirements – Federal National Mortgage Association v. Morton et al., No. 2D14-5165 (Fla. 2d DCA June 15, 2016) (reversed and remanded) Foreclosure/Standing: plaintiff failed to establish standing at time foreclosure filed where original note never filed with court and no other evidence of possession presented to court – Cruz v. JPMorgan Chase Bank, National Association, as Successor in Interest to Washington Mutual Bank, formerly known as Washington Mutual Bank, F.A., No. 4D14-3799 (Fla. 4th DCA June 15, 2016) (reversed and remanded) Post-Judgment Interest: 2011 amendment to section 55.03, Fla. Stat., which changed judgment interest rate from a fixed rate established on date of judgment to a variable rate that adjusts January of each year, does not apply to judgments entered prior to effective date of amendment – Townsend v. R.J. Reynolds Tobacco Co., Case No. SC15-722 (Fla. June 9, 2016) (reversed and remanded). Deficiency Judgment: if creditor requests a deficiency judgment in a foreclosure action and court reserves jurisdiction to grant or deny a deficiency, creditor is bared from filing separate action at law to recover on promissory note – Higgins v. Dyck-O’Neal, Inc., Case No. 1D15-4784 (Fla. 1st DCA June 9, 2016) (reversed). Loan Modification: borrower that signed and returned loan modification agreement to lender by mail, and made first three payments due thereunder, which were accepted by lender, was sufficient to support finding of an enforceable agreement, despite evidence that lender had no record of having received signed loan modification – Nowlin v. Nationstar Mortgage LLC, Case No. 2D15-331 (2d DCA June 10, 2016) (reversed and remanded). Attorneys’ Fees: defendant that denied signing note and mortgage could not recover attorneys’ fees upon dismissal of action by lender because only parties could claim rights under the loan documents – Florida Community Bank, N.A., etc. v Red Road Residential, LLC, etc., Case No. 3D15-2039 (Fla. 3d DCA June 8, 2016) (reversed). Standing: substituted plaintiff must prove standing to foreclose by evidence that original plaintiff had standing – Fallon Rahima Jallali v. Christiana Trust, Case No. 4D14-2369 (Fla. 4th DCA June 8, 2016)(reversed and remanded). Standing: loan servicer did not prove standing to foreclose mortgage due to lack of evidence that note secured by mortgage was an asset of prior entity at time it merged into servicer – Vogel v. Wells Fargo Bank, N.A., Case No. 4D15-132 (Fla. 4th DCA June 8, 2016). Standing: if original note presented into evidence is in same condition as copy attached to complaint, court may infer plaintiff had actual possession of original at time of filing and has standing to maintain lawsuit absent evidence to contrary – Meilleur v. HSBC Bank USA, N.A., Case No. 4D15-117 (June 8, 2016).

Foreclosure/Requests for Admission: trial court erred by involuntarily dismissing foreclosure action based solely on lender’s failure to respond to requests for admission because lender’s pleadings, discovery responses, and/or trial evidence contradicted technical admissions and no prejudice was demonstrated – HSBC Bank USA, etc., v. Parodi, No. 3D15-652 (Fla. 3d DCA May 4, 2016) (reversed and remanded) Foreclosure/Conditions Precedent: trial court applied incorrect strict compliance standard in evaluating whether lender’s default notice complied with paragraph 22 of mortgage; default notice is sufficient if it substantially complies with mortgage’s default notice provision – Wells Fargo Bank, N.A., etc. v. Hernandez & Silva Enters., Inc., No. 3D15-702 (Fla. 3d DCA May 4, 2016) (reversing summary judgment) Foreclosure/Trial Witness: trial court erred in dismissing lender’s foreclosure action based on unavailability at trial of lender’s same corporate representative designee who was deposed, even though another corporate representative witness was disclosed; prejudice was neither demonstrated nor properly considered by trial court – Nationstar Mortg., LLC v. Castro, No. 3D15-1855 (Fla. 3d DCA May 4, 2016) (reversing and remanded) Equitable Lien: imposition of equitable lien was improper because (1) there was no evidence of written document demonstrating any intent to subject real property at issue to security interest, (2) no evidence supported any conduct on plaintiff’s part that would justify imposition of lien, (3) borrower’s property interest in real property was not enriched by his payment of amounts due under loan documents, and (4) plaintiff was not unjustly enriched by receipt of the payments made by borrower out of portion of funds obtained from purported lienor – Wichi Mgmt. LLC v. Masters, No. 3D15-1873 (Fla. 3d DCA May 4, 2016) (reversed, finding no legal or equitable basis for lien) Foreclosure/Enforcement of Settlement Agreement: lower court should have enforced settlement agreement when both parties mutually assented to the agreement, despite bank’s inability thereafter to produce original note when it sought entry of consent judgment and at trial – U.S. Bank Nat’l Ass’n, as Trustee v. Benoit, No. 4D14-4052 (Fla. 4th DCA May 4, 2016) (reversed and remanded for entry of consent final judgment of foreclosure) Foreclosure/Reestablishment of lost note: plaintiff failed to prove necessary elements to reestablish lost note because it did not prove that it acquired note from a person entitled to enforce note when loss of possession occurred – Robelto v. U.S. Bank Trust, N.A., as Trustee, No. 4D14-4721 (Fla. 4th DCA May 4, 2016) (reversed for entry of judgment for homeowners) Foreclosure/Attorneys’ Fees: stay of second foreclosure action should have been entered until plaintiff paid attorney’s fees award in defendant’s favor from plaintiff’s predecessor’s previously dismissed foreclosure action against same property – Villalona v. 21st Mortg. Corp., No. 4D15-4151 (Fla. 4th DCA May 4, 2016) (granting defendant’s petition for writ of certiorari, and quashing order denying defendant’s motion to stay) Foreclosure/Separate Deficiency Action: post-foreclosure deficiency action was proper notwithstanding foreclosure judgment’s reservation of jurisdiction to consider entry of deficiency in foreclosure action – Cheng v. Dyck-O’Neal, Inc., No. 4D16-57 (Fla. 4th DCA May 4, 2016) (affirming order denying Rule 1.540 motion) Foreclosure/Standing: trial court erred in finding (1) that bank did not have standing to foreclose because evidence showed that loan was never transferred and bank, as a result of merger, had standing, and (2) that note and mortgage were void because original lender was not incorporated when the loan was made, was not a licensed mortgage lender in Florida, and did not have authority to do business in Florida – Bank of Am., N.A., etc. v. Nash, No. 5D14-4511 (Fla. 5th DCA May 6, 2016) (reversing judgment and remanding for entry of judgment in favor of bank) Homestead: Florida’s homestead exemption (protection from creditors) applies to that portion of funds derived from sale of homestead property that (i) seller intends to reinvest in a new homestead within reasonable time, (ii) has not commingled with other funds, and (iii) have been held separate and apart and solely for purpose of acquiring new homestead – JBK Associates, Inc. etc. v. Sill Bros., Inc., et al., No. SC15-977  (Fla. April 28, 2016). Foreclosure: lender not precluded from collecting on defaulted note because prior foreclosure action accelerating payment on default has been dismissed; also, pursuant to 95.281(1)(a), Fla. Stat. (2013), mortgage lien terminates 5 years after date of maturity shown on face of mortgage – Balaguer v. Chase Home Financial, LLC, No. 3D14-2801 (Fla. 3d DCA April 27, 2016) (dismissal affirmed). Dismissal: trial court has neither authority under rule 1.540 nor inherent authority to grant relief from a voluntary dismissal where fraud on the court is alleged but no affirmative relief has been granted to dismissing party – U.S. Bank National Association, etc. v. Gladys Rivera, et al., No. 3D15-1415 (Fla. 3d DCA April 27, 2016) (quashing orders). Foreclosure: final judgment reversed and remanded for further proceedings because included interest, attorneys’ fees and other expenses unsupported by competent substantial evidence – Hovannesian v. Pennymac Corp., et al., No. 4D14-3088  (Fla. 4th DCA April 27, 2016). Abandonment of Relief: trial court had inherent authority to declare post-judgment motion for fees and costs abandoned when motion not set for hearing for 18 months and trial court did not err in denying motion for rehearing – Grosso v. HSBC Bank USA, NA, No. 4D14-3971; Ramos v. Deutsche Bank National Trust Co., Trustee, No. 4D14-3981; Berenson v. Deutsche Bank National Trust Co., Case No. 4D14-3985 (Fla. 4th DCA April 27, 2016). Standing: trial court could not take judicial notice of common known fact of affiliation between servicer and lender where no timely and sufficient request for judicial notice under section 90.203, Fla. Stat. – Reynolds v. Nationstar Loan Services, LLC, No. 4D14-4045 (Fla. 4th DCA April 27, 2016). Foreclosure: trial court erred in entering judgment in favor of lender for past due amounts and foreclosure where lender failed to comply with notice requirements in mortgage; instead, case should have been dismissed – Miller v. The Bank of NY Mellon, et al., No. 4D15-36 (Fla. 4th DCA April 27, 2016). Default/Amended Pleading: lender that added lost note count after it obtained a default against homeowners, but did not serve homeowners with amended complaint, not entitled to judgment on lost note and required reversal of foreclosure judgment – Kitchens v. Nationstar Mortgage, LLC, No. 4D15-617 (Fla. 4th DCA April 27, 2016).

REAL PROPERTY UPDATE Foreclosure/Standing: bank failed to establish through documents or testimony that it owned or held the indorsed note with allonge when bank filed foreclosure complaint –Sorrell v. U.S. Bank Nat’l Ass’n, as Trustee, No. 2D14-3883 (Fla. 2d DCA Apr. 6, 2016) (reversed and remanded for dismissal) Foreclosure/Standing: bank did not prove that endorsement of note occurred and allonge was affixed prior to filing original complaint – Elman v. U.S. Bank, N.A., as Trustee, No. 4D14-2520 (Fla. 4th DCA Apr. 6, 2016) (reversed and remanded for entry of judgment for borrowers) Foreclosure/Business Records: bank failed to prove amounts due and owing because bank’s witness did not lay proper foundation for admission of payment history under business records exception to hearsay – Maslak v. Wells Fargo Bank, N.A., as Trustee, Nos. 4D14-4672, 4D14-4673, 4D14-4707 (Fla. 4th DCA Apr. 6, 2016) (affirming judgment of foreclosure but remanding for further proceedings to establish amounts due and owing) Foreclosure/Reformation: in bank’s action seeking foreclosure and reformation of mortgage, bank introduced clear and convincing evidence showing that a mistake was made, as required for reformation, but did not show what the actual agreement was between originally contracting parties– Losner v. HSBC Bank USA, N.A., as Trustee, No. 4D15-493 (Fla. 4th DCA Apr. 6, 2016) (affirming trial court’s judgment with respect to standing, reversing on reformation count, and remanding for entry of money judgment in lender’s favor) Foreclosure/Standing: trial court did not abuse its discretion in determining bank’s witness was competent to testify and in admitting loan history records into evidence; bank’s notice of default substantially complied with paragraph 22; unclear whether HUD notice and face-to-face meeting conditions precedent applied but borrowers’ evidentiary burden to establish – Diaz v. Wells Fargo Bank, N.A., No. 5D15-1612 (Fla. 5th DCA Apr. 8, 2016) (affirmed)

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