CHEMICAL RESIDENTIAL MORTGAGE, FORMERLY KNOWN AS MARGARETTEN & COMPANY, INC., NOW KNOWN AS CHASE MANHATTAN MORTGAGE CORPORATION, APPELLANT,
v.
TERRY RECTOR AND PATRICIA RECTOR, ET AL., APPELLEES
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The court held that the mortgagor's failure to respond to the foreclosure complaint waived any denial of the mortgagee's ownership of the note and mortgage, and that attachment of a written assignment was not required for foreclosure.
The mortgagor appealed several orders in a mortgage foreclosure action, including an order that vacated a final judgment of foreclosure and denied a m…
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BARFIELD, Chief Judge.
'In this appeal from several orders entered in a mortgage foreclosure action, we find that the trial court erred as a matter of law in its order of June 30, 1997, in which it denied the appellant/mortgagor’s April 23, 1997, motion to amend the final judgment of foreclosure and reset the sale date, vacated the April 7, 1995, final judgment of foreclosure, and vacated the August 5, 1996, order amending the final judgment.
We find that the complaint properly stated a cause of action for foreclosure by the holder of the note and mortgage. When they did not timely respond to the complaint, the appellees/mortgagees waived any denial of its allegations that the appellant was the owner and holder of the note and mortgage and that the appellees had defaulted on the note and mortgage. Because the lien follows the debt,1 there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action.
The June 30, 1997, order is REVERSED. The appellees’ motion for appellate attorney fees is DENIED. The appellant is entitled to appellate attorney fees. This case is REMANDED to the trial court, which shall reinstate the April 7, 1995, final judgment of foreclosure, vacate its order of June 30, 1997, and all subsequent orders, reconsider the appellant’s motion to amend the final judgment of foreclosure and set a new sale date, and determine a reasonable appellate attorney fee.
DAVIS, J. and SHIVERS, DOUGLASS B., Senior Judge, concur. . See, Warren v. Seminole Bond & Mortgage Co., 127 Fla. 107, 172 So. 696 (1937); Johns v. Gillian, 134 Fla. 575, 184 So. 140 (Fla.1938); American Central Ins. Co. v. Whitlock, 122 Fla. 363, 165 So. 380 (1936); Collins v. W.C. Briggs, Inc., 98 Fla. 422, 123 So. 833 (1929); Drake Lumber Co. v. Semple, 100 Fla. 1757, 130 So. 577 (1930).
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Deutsche Bank Nat'l Tr. Co. v. Lippi, 78 So. 3d 81 (Fla. 5th DCA 2012)…om, 36 So. 3d 927, 929 (Fla. 4th DCA 2010). Since the lien follows the debt, Florida does not require a plaintiff to attach a written or recorded assignment of the mortgage in order to pursue a foreclosure action. Chem. Residential Mortg. v. Rector, 742 So. 2d 300, 300-01 (Fla. 1st DCA 1998). Deutsche Bank’s second amended complaint alleged it was the holder of the note and mortgage. The original note contains an indorsement, which reads: “Pay to the order of_without recourse.” Below that, there is the signa…
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Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115 (Fla. 2d DCA 2011)…ollowing proposition: “Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action.” Chem. Residential Mortg. v. Rector, 742 So. 2d 300, 300-01 (Fla. 1st DCA 1998) (footnote omitted). Because ownership of the mortgage followed the note in the absence of a contrary intention and Bayview owned and held the note when it filed its lawsuit, Bayview has standing to maintain the underlying…
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LAW Off. OF David J. Stern, P.A. v. Sec. Nat'l Servicing Corp., 969 So. 2d 962 (Fla. 2007)…al in nature. See id. at 759. A mortgage foreclosure action requires only that the claimant be the owner and holder of the note and mortgage and that the mortgagee has defaulted on that note and mortgage. See Chemical Residential Mortgage v. Rector, 742 So. 2d 300, 300 (Fla. 1st DCA 1998). In such actions, an attorney’s duty is to the client only to the extent that the client is the owner and holder of the note and mortgage. The benefit or detriment of any actions taken by the attorney with regard to the fore…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johns v. Gillian, 134 Fla. 575 (Fla. 1938)
- Am. Cent. Ins. Co. v. Whitlock, 122 Fla. 363 (Fla. 1936)
- Drake Lumber Co. v. Semple, 100 Fla. 1771 (Fla. 1930)
- Drake Lumber Co. v. Semple, 100 Fla. 1757 (Fla. 1930)
- Minnie C. Collins and her husband W. E. Collins v. W. C. Briggs, Inc., 98 Fla. 422 (Fla. 1929)
- Warren v. Seminole Bond & Mortg. Co., 127 Fla. 107 (Fla. 1937)