NATIONAL CITY BANK, APPELLANT,
v.
KRISTIN A. NAGEL, ET AL., APPELLEE
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The trial court erred in sua sponte dismissing a foreclosure action based on lack of standing without affording the parties notice and opportunity to be heard on this affirmative defense.
A trial judge may not sua sponte dismiss an action based on affirmative defenses not raised by proper pleadings.
[1] A trial court may not sua sponte dismiss a foreclosure action based on an affirmative defense such as lack of standing when the defendant has not raised the defense throu…
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Court's statement of the controlling legal principle regarding sua sponte dismissals
National City Bank filed a foreclosure suit against Kristin A. Nagel alleging the note and mortgage were executed in favor of First Franklin Financial…
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National City Bank filed a foreclosure suit against Kristin A. Nagel, et. al.; the complaint alleged that the note and mortgage had been executed in favor of First Franklin Financial, but that plaintiff was now the “owner” of the note. No answer, pleading, or paper of any kind was filed by the defendants. Thereafter, National City Bank filed a “Motion to Substitute Party Plaintiff,” alleging the note had been assigned subsequent to the filing of the foreclosure suit. The trial court sua sponte reviewed the public records and concluded that National City Bank did not own the note at the time the suit was filed and therefore lacked standing. The trial court thereafter dismissed the action. We reverse. “A trial judge may not sua sponte dismiss an action based on affirmative defenses not raised by proper pleadings” as a dismissal under these circumstances “denies the parties due process because the *459claim is being dismissed without ‘notice and an opportunity for the parties and counsel to be heard.’ ” Liton Lighting v. Platinum Television Grp., Inc., 2 So.3d 366, 367 (Fla. 4th DCA 2008) (quoting Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246, 1249 (Fla. 4th DCA 1998)).
Reversed and remanded for further proceedings.
CIKLIN, J., and WALSH, LISA S., Associate Judge, concur.
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Citator
Cited By
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Gmac Mortg., LLC. v. Hemmawan Choengkroy and Chalermsak Maharuenchan, 98 So. 3d 781 (Fla. 4th DCA 2012)…es not raised by proper pleadings” as a dismissal under these circumstances “denies the parties due process because the claim is being dismissed without ‘notice and an opportunity for the parties and counsel to be heard.’ ” Nat'l City Bank v. Nagel, 95 So. 3d 458, 459 (Fla. 4th DCA 2012) (quoting Liton Lighting v. Platinum Television Grp., Inc., 2 So. 3d 366, 367 (Fla. 4th DCA 2008)). Reversed and remanded for further proceedings. POLEN and CONNER, JJ., concur.…
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Wells Fargo Bank, NA v. The Unknown Heirs OF Patricia A. Chipner, 100 So. 3d 252 (Fla. 4th DCA 2012)…a default had been entered against the borrower in a mortgage foreclosure action, the circuit court sua sponte dismissed the case for the plaintiff’s lack of standing to file the complaint. We reverse on the authority of National City Bank v. Nagel, 95 So. 3d 458 (Fla. 4th DCA 2012) and remand to the circuit court for further proceedings. See also GMAC Mart., LLC. v. Choengkroy, 98 So. 3d 781 (Fla. 4th DCA 2012). GROSS, TAYLOR and DAMOORGIAN, JJ., concur.…
Authorities Cited
- Kerrigan v. State, 711 So. 2d 1246 (Fla. 4th DCA 1998)
- Liton Lighting v. Platinum Television Grp., Inc., 2 So. 3d 366 (Fla. 4th DCA 2008)