Florida Real Estate Lawyers Blog
By: Daniel T. Pascale, Esq.
Offices located in Delray Beach and Coral Gables, FL
Lenders Standing at Foreclosure
Creadon v. U.S. Bank N.A. 166 So.3d 952 (Fla. 2nd DCA 2015)
The circuit court entered final judgment in favor of U.S. Bank N.A., foreclosing a mortgage encumbering property. The owners assert that U.S. Bank did not prove its standing to foreclose the note and that the court erred in substituting it as the plaintiff.
No one seriously disputed that the borrower was in default on the mortgage encumbering the property. The original complaint asserted, and Plaintiff’s testimony confirmed, that the borrower had not payments since 2008.
The issue here is the plaintiff presented sufficient evidence to warrant its substitution as plaintiff and to prove that it had standing to enforce the note and mortgage. It did not introduce the assignment of mortgage, or any other assignment, into evidence. It proceeded solely on the theory that it was the holder of the note and thus had the right to foreclose the loan.
The borrowers appealed and prevailed as the Court determined that the Bank had not established that it was holder of the note because the note had been filed with the registry of the Court years earlier than the plaintiff’s appearance in the case.
Disclosure of defects to property being sold with an “as-is” contract
Bowman v. Barker 40 Fla. L. Weekly D2091b; 2015 WL 5239079
The purchaser of a home claimed the sellers knew of material defects to the property but did not disclose them to the purchaser. The trial court granted summary judgment for the sellers.
The 1st DCA cited to the Florida Supreme Court’s holding in Johnson v. Davis, 480 So.2d 625 (Fla. 1985), which established that where a vendor knows of facts materially affecting the value of property not readily observable and not known to a purchaser, the vendor must disclose those facts to a purchaser. A contract being “as is” does not change this duty.
The ample record evidence of the sellers’ probable knowledge of most of the defects which conflicted with the sellers’ affidavit claiming a lack of knowledge caused the DCA to hold there was a genuine issue of material fact regarding the disclosures and the property’s condition making summary judgment inappropriate and the DCA reversed the summary judgment in favor of the sellers. Moral of the story: an “as is” contract does not change the existing duty of disclosure requirements.
Acceleration in a Dismissed Foreclosure Does not Prevent Subsequent Foreclosure
Summary: Owner of real property brought declaratory-judgment action in state court against mortgagee’s assignee, asserting that statute of limitations barred assignee from foreclosing upon property and that assignee was required to yield possession of property to owner. Assignee removed case to federal court. Assignee moved to dismiss for failure to state a claim.
Holding: The District Court, John E. Steele, Senior District Judge, held that under Florida law, five-year statute of limitations did not bar assignee from foreclosing upon property on basis of future nonpayment defaults or non-payment defaults which had occurred within past five years.