GMAC MORTGAGE, LLC., APPELLANT,
v.
HEMMAWAN CHOENGKROY AND CHALERMSAK MAHARUENCHAN, APPELLEES
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GMAC Mortgage appeals a trial court's sua sponte dismissal of its mortgage foreclosure action for lack of standing. The appellate court reverses, holding that the trial judge erred in dismissing without a hearing and that evidence of equitable transfer prior to filing the complaint could establish standing even if formal assignment occurred later.
The court reversed the dismissal, holding that a foreclosure plaintiff may establish standing through evidence of equitable transfer of the mortgage prior to filing, regardless of when formal assignment occurs. The court also held that a trial judge cannot sua sponte dismiss an action based on affirmative defenses without proper pleadings and without providing notice and an opportunity for the parties to be heard.
[1] A party seeking foreclosure must demonstrate standing at the time the complaint is filed.
[2] Standing in a foreclosure action can be established by evidence of an assignment or an equitable transfer of the mortgage prior to the filing of the complaint.
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Join FLexlaw to unlock all legal intelligence“In a mortgage foreclosure proceeding, the party seeking foreclosure must demonstrate that it had standing to foreclose at the time it filed the complaint.”
Establishes the temporal requirement for standing in foreclosure actions
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Join FLexlaw to unlock all legal intelligenceGMAC, as assignee of a mortgage, filed a foreclosure suit against the defendants and included copies of the mortgage and promissory note in its amende…
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GMAC Mortgage, LLC, the plaintiff in a mortgage foreclosure action, timely appeals a final order by the trial judge dismissing its suit against the defendants for lack of standing. We reverse because the trial judge erred in dismissing the lawsuit without a hearing and in violation of due process principles.
As the assignee of a mortgage, GMAC brought a mortgage foreclosure suit against the defendants. GMAC’s amended complaint contained copies of the mortgage and promissory note. The defendants failed to file a response and the clerk entered a default upon GMAC’s motion.
GMAC moved for summary judgment. The defendants did not respond. The trial judge sua sponte entered a final order dismissing the action for lack of standing on the grounds that “the mortgage was not assigned until after th[e] action was filed on March 22, 2010.” In the final order, the trial judge found that “when th[e] action was filed the Mortgage was not owned by [GMAC] and [GMAC] lacked standing to file the complaint.”
The review of a final order dismissing a cause of action for lack of standing is de novo. Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008) (citing Putnam Cnty. Envtl. Council, Inc. v. Bd. of Cnty. Comm’rs of Putnam Cnty., 757 So.2d 590 (Fla. 5th DCA 2000)).
In a mortgage foreclosure proceeding, the party seeking foreclosure must demonstrate that it had standing to foreclose at the time it filed the complaint. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 *782So.3d 170, 173 (Fla. 4th DCA 2012). To have standing, “[t]he party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010) (citing Verizzo v. Bank of N.Y., 28 So.3d 976, 978 (Fla. 2d DCA 2010); Philogene v. ABN Amro Mortg. Group Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006)). In this regard, a plaintiff may also establish standing by presenting evidence which shows “either an assignment or an equitable transfer of the mortgage prior to the filing of the complaint.” McLean, 79 So.3d at 173 (emphasis added). Even if the assignment of the mortgage does not occur until after the plaintiff files the complaint, the “mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.” Id. at 173 (quoting Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938)). “Thus, where there is an indication that equitable transfer of the mortgage occurred prior to the assignment, dismissal of the complaint is error, even if the assignment was executed after the complaint was filed.” Id. at 173 (emphasis added).
In this case, there was evidence indicating an equitable transfer prior to the filing of the complaint conferred standing on GMAC to bring suit. Resolution of the issue required an evidentiary hearing. See WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682-83 (Fla. 4th DCA 2004). Also, “[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 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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Lloyd v. The Bank OF NEW York Mellon, 160 So. 3d 513 (Fla. 4th DCA 2015)…nk Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). Standing must exist at the time the foreclosure suit is filed. Id.; see [*515] also Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1276 (Fla. 4th DCA 2013); GMAC Mortg., LLC v. Choengkroy, 98 So. 3d 781, 781 (Fla. 4th DCA 2012). A plaintiff may satisfy this burden by submitting “the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the…
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Matthews v. Fed. Nat'l Mortg. Ass'n, 160 So. 3d 131 (Fla. 4th DCA 2015)…h knowledge. . We recognize that “[ejven if the assignment ... does not occur until after the plaintiff files the complaint,” standing may be established by evidence of an equitable transfer prior to the filing date. GMAC Mortg., LLC v. Choengkroy, 98 So. 3d 781, 782 (Fla. 4th DCA 2012). We simply find that this type of evidence was not presented to the trial court.…
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Elroy A. Phillips v. City OF W. Palm Beach, 133 So. 3d 1071 (Fla. 4th DCA 2014)…ts. First, as to the due process argument, the plaintiff is correct that the city never raised a statute of limitations defense, and thus the dismissal of his action on that ground violates his due process rights. See GMAC Mortg., LLC v. Choengkroy, 98 So. 3d 781, 782 (Fla. 4th DCA 2012) (“[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 claim is being dismis…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McLEAN v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012)
- Johns v. Gillian, 134 Fla. 575 (Fla. 1938)
- Verizzo v. The Bank OF NEW York Under Novastar Mortg. Funding Tr., 28 So. 3d 976 (Fla. 2d DCA 2010)
- WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA 2004)
- Sole v. State, 757 So. 2d 590 (Fla. 5th DCA 2000)
- Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008)
- Philogene v. ABN Amro Mortg. Grp. Inc., 948 So. 2d 45 (Fla. 4th DCA 2006)
- Lizio v. McCULLOM, 36 So. 3d 927 (Fla. 4th DCA 2010)
- Liton Lighting v. Platinum Television Grp., Inc., 2 So. 3d 366 (Fla. 4th DCA 2008)
- Nat'l City Bank v. Nagel, 95 So. 3d 458 (Fla. 4th DCA 2012)