REAL PROPERTY UPDATE

  • Foreclosure: trial court abused its discretion in dismissing foreclosure action with prejudice, cancelling substantial debt, and denying lender ability to refile a foreclosure action without making finding of facts as required under Florida Supreme Court’s precedent. Moreover, doctrine of res judicata did not bar lender from refilling a second foreclosure action grounded on subsequent and different defaults from first foreclosure action - GMAC Mortgage, LLC v. Whiddon, No. 1D13-6217 (Fla. 1st DCA May 08, 2015) (affirmed in part, reversed in part, and remanded)
  • Foreclosure/Standing: bank had standing to foreclose because it held note at time of filing foreclosure - AS Lily LLC v. Morgan, No. 2D14-863 (Fla. 2d DCA May 08, 2015) (reversed and remanded)
  • Foreclosure/Business Records: trial court erred in failing to admit loan payment history under the business record exception on basis that bank’s foundational witness was not yet employed with bank at time loan payment history created - Bank of America v. Delgado, No. 3D13-910 (Fla. 3d DCA May 06, 2015) (reversed and remanded)
  • Foreclosure/Standing: bank lacked standing to foreclose since assignment of note, the basis for standing, was executed after bank filed foreclosure complaint - Tremblay v. U.S. Bank, No. 4D13-2402 (Fla. 4th DCA May 06, 2015) (reversed and remanded)
  • Foreclosure/UCC: Uniform Commercial Code and not recording statute controls in determining which bank has priority to foreclose on mortgage secured (as a result of a fraudulent scheme) by two separate “original” promissory notes; under UCC, the bank which was first to perfect its interest has priority - HSBC Bank v. Perez, No. 4D13-3193 (Fla. 4th DCA May 06, 2015) (reversed and remanded)
  • Foreclosure/Standing/Condition Precedent: bank did not establish standing to foreclose because its testimony failed to prove when it took possession of note or that it acquired note before it filed foreclosure action; however, bank’s breach of condition precedent by giving borrower 29 days to cure default instead of 30 not material so as to constitute defense to foreclosure because borrower made no attempt to cure default and was therefore not prejudiced - Gorel v. The Bank of New York, No. 5D13-3272 (Fla. 5th DCA May 08, 2015) (reversed and remanded)
  • Lis Pendens: petitioner seeking to reform mortgage or, in the alternative, to establish an equitable lien on property was entitled to extend lis pendens beyond 1 year because there was substantial evidence to support claims to interest in property at issue - JBJ Investment of S. Florida, Inc. v. Maslanka, et al., Case No.: 5D14-4009 (Fla. 5th DCA May 1, 2015) (cert. granted, order quashed, remanded with directions)
  • Deficiency judgment: party not entitled to pursue separate action at law on promissory note where party included prayer for deficiency judgment in its foreclosure complaint and trial court reserves jurisdiction to enter deficiency judgment - Reid v. Compass Bank, Case No. 1D14-930 (Fla. 1st DCA May 1, 2015) (affirmed)
  • Foreclosure/Right to Jury Trial: although borrower may be entitled to jury trial with respect to action on a note, if and when the action on the note is brought simultaneously with an action in foreclosure, action becomes one in equity and there is no right to trial by jury on either count; moreover, jury trial waiver in mortgage valid and operated to preclude jury trial - Kinney v. Countrywide Home Loans Servicing, LP, Case No.: 4D13-3811 (Fla. 4th DCA April 29, 2015) (affirmed)