PEDRO PENTON, ET AL., APPELLANTS,
v.
INTERCREDIT BANK, N.A., APPELLEE
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In this foreclosure appeal, the trial court properly allowed substitution of Carlos Penton as a defendant for a "John Doe" placeholder, had subject matter jurisdiction over Hendry County property despite the general local action rule, and had proper venue in Miami-Dade County based on a statutory exception permitting foreclosure of multi-county mortgages in any county where any mortgaged land is located.
The court affirmed the trial court on all issues: substitution of Carlos Penton for "John Doe" was proper under Florida Rule of Civil Procedure 1.250(c); subject matter jurisdiction existed under section 702.04, Florida Statutes, which permits foreclosure of mortgages covering lands in multiple counties in any one of those counties; and venue was therefore proper in Miami-Dade County.
[1] A trial court may allow the substitution of a party for "John Doe" on motion of any party at any stage of the action and on such terms as are just.
[2] A trial court has subject matter jurisdiction to foreclose on real property located in a county other than the one where the action is brought, if the mortgage includes l…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.250(c) provides for the addition of parties "by order of court ... on motion of any party at any stage of the action and on such terms as are just."”
Establishes the procedural basis for substituting Carlos Penton for "John Doe" as a party defendant.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIntercredit Bank initiated a foreclosure action against Pedro Penton, Yaknel Penton, and others described as "John Doe and All Others in Possession." …
The full statement of facts, procedural history, and disposition for this case are member content.
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RAMIREZ, J.
This is an appeal from two orders in connection with an action brought by In-tercredit Bank, N.A., seeking to foreclose upon several mortgages granted by Pedro Penton and Yaknel Penton. We affirm on the issues raised because the trial court correctly allowed Intercredit to amend its complaint, it did not err in finding that it had subject matter jurisdiction, and venue was proper in Miami-Dade County.
Appellant Carlos Penton was not originally named in the action, which only identified defendants Pedro Penton, Yaknel Penton, John Doe and All Others in Possession. Carlos Penton was personally served with a “John Doe” Summons on October 6, 2005. At that time, his name did not appear in the caption of the Complaint or the Summons.
After a default was entered against Carlos Penton, the circuit court entered an Agreed Order on December 15, 2005, setting aside the default as against Carlos Penton. The trial court contemporaneously granted Intercredit’s ore terms application to substitute appellant Carlos Penton for “John Doe.” The court also denied the appellant’s motion to dismiss, which had asserted that the Eleventh Circuit lacked subject matter jurisdiction to award a judgment of foreclosure as to real property located entirely within the borders of Hen-dry County, thus ruling that venue was proper and that the court had subject matter jurisdiction to grant a judgment of foreclosure against the property located in Hendry County.
The first order under appeal simply allowed the substitution of Carlos Penton as a party-defendant for “John Doe.” Despite appellant’s argument to the contrary, the order does not determine whether Carlos Penton was properly served with process when he was personally served with a summons addressed to “John Doe.” Florida Rule of Civil Procedure 1.250(c) provides for the addition of parties “by order of court ... on motion of any party at any stage of the action and on such terms as are just.” We can find no error in the court allowing the substitution.
The appellant also complains that the trial court erred in finding that it had subject matter jurisdiction over the lien-dry County property. Normally, a circuit court cannot exercise in rem jurisdiction over property situated beyond the circuit’s territorial boundaries. Section 47.011, Florida Statutes, provides that actions shall be brought only in the county where the property in litigation is located. See also Goedmakers v. Goedmakers, 520 So. 2d 575 (Fla.1988). This is commonly referred to as the “local action rule.”
The Legislature, however, has created an exception to the local action rule, codified at section 702.04, Florida Statutes, which provides, in pertinent part:
When a mortgage includes lands .... lying in two or more counties, it may be foreclosed in any one of said counties, and all proceedings shall be had in that county as if all the mortgaged land .... lay therein....
Appellant nevertheless argues that the exception was only intended to provide a remedy where a mortgage covers a contiguous parcel of land that extends into multiple counties. We conclude that this argument can find no support in the language of the statute, the legislative history or the case law. On the contrary, a 1959 opinion of the Attorney General interpreted the statute as relating to both contiguous and non-eontiguous real properties. See Op. Att’y Gen. Fla. 59-57 (1959). We agree with this interpretation.
We therefore affirm the trial court in all respects.
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Frym v. Flagship Cmty. Bank, 96 So. 3d 452 (Fla. 2d DCA 2012)…and all proceedings shall be had in that county as if all the mortgaged land ... lay therein.” § 702.04, Fla. Stat. (2006). Finally, this exception can apply to both contiguous and noncontiguous real properties. See Penton v. Intercredit Bank, N.A., 943 So. 2d 863, 864-65 (Fla. 3d DCA 2006). Frym maintains that her situation does not fall under the exception to the local action rule and that thus the Bank is required to bring a separate action in Hillsborough County with respect to her personal residence the…
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Brant v. Metro. Life Ins. Co. & Mlic Asset Holdings, LLC (Fla. 4th DCA 2020)…land ... lay therein.” Id. at 453 (quoting § 702.04, Fla. Stat. (2006)). Our sister court further noted that section 702.04’s exception can apply to both contiguous and noncontiguous real properties. Id. (citing Penton v. Intercredit Bank, N.A., 943 So. 2d 863, 864-65 (Fla. 3d DCA 2006)). The instant case is similar to Frym because here, once the loans became cross-collateralized, that is, when the loan agreements were modified so that all of the mortgages constituted the collateral for the borrowers’ en…
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Schultz Builders & Pools, Inc. v. Icon Welding & Fabrication, LLC (Fla. 2d DCA 2023)…having a fixed location, venue lies only in the county where the subject property is located because courts have no jurisdiction in actions relating to real property located outside their territorial boundaries."); Penton v. Intercredit Bank, N.A., 943 So. 2d 863, 864 (Fla. 3d DCA 2006) ("Section 47.011, Florida Statutes, provides that actions shall be brought only in the county where the property in litigation is located."). Schultz at once mischaracterizes the relief Icon seeks, while simultaneously manag…
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- Myers v. State, 520 So. 2d 575 (Fla. 1988)