4040 IBIS CIRCLE, LLC AND SHLOMO RASABI, APPELLANTS,
v.
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION AND WAMU INSURANCE SERVICES, INC., APPELLEES
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Borrowers appealed the dismissal of their counterclaims in a foreclosure action, arguing that the defendants improperly purchased force-placed insurance and misapplied payments. The appellate court dismissed most counterclaims for lack of jurisdiction because they were compulsory, but reached the merits of two permissive counterclaims based on the Florida Unfair Insurance Trade Practices Act and affirmed their dismissal as barred by the statute of limitations.
The court dismissed the appeal as to most counterclaims for lack of jurisdiction because they were compulsory counterclaims that could not be appealed until the foreclosure action was resolved. However, the court found jurisdiction over two permissive FUITPA counterclaims and affirmed their dismissal as barred by the four-year statute of limitations, since the underlying facts occurred between 2005 and 2008 but were not pleaded until 2014.
[1] An order dismissing a counterclaim is not a final order appealable until the main cause of action is disposed of on the merits, unless the counterclaim adjudicates a dist…
[2] A compulsory counterclaim bears a logical relationship to the plaintiff's claims, arising out of the same aggregate of operative facts as the original claim.
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“An order is considered final if it 'disposes of the cause on its merits leaving no questions open for judicial determination except for 'the execution or enforcement of the decree if necessary.'”
Establishes the legal standard for when an order is final and appealable.
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Join FLexlaw to unlock all legal intelligenceJPMorgan Chase brought a foreclosure action against borrowers in 2009. The borrowers alleged that Chase's predecessor, Washington Mutual Bank, imprope…
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In this foreclosure case, the defendants/counterplaintiffs appeal the dismissal of their counterclaims. We affirm in part and dismiss in part.
JPMorgan Chase brought this foreclosure action in 2009 against 4040 Ibis Circle, LLC and Shlomo Rasabi (the “Borrowers”). The'Borrowers filed their answer, affirmative defenses, and two counterclaims for breach of contract and defamation. The Borrowers alleged that Chase’s predecessor, Washington Mutual Bank (“WaMu”) improperly purchased force-placed insurance on the property and created an impound/escrow account with a deficit exceeding $15,000 (the price of the insurance). WaMu then allegedly misapplied the Borrowers’ prinei-pal and interest payments to pay down the escrow account.-
The Borrowers alleged1 that when Chase acquired the loan,, it exacerbated the problem by increasing the déficit in the. impound/escrow account for the payment of property taxes that had already been paid. According to the Borrowers, this misallo-cation of principal and interest, first by WaMu and-then by Chase, created a “phantom default.”
In 2014, the Borrowers filed an amended answer, including nine counterclaims.1 By this pleading, the Borrowers set forth additional facts in a section entitled “Illegal Force-Placed Insurance Scheme.” The “Scheme” is defined as:
The unconscionable above-market premiums, undisclosed commissions, and illegal kickbacks in the nature of reinsurance premiums and subsidized administrative-services.
Chase moved to dismiss all of the Borrowers’ Counterclaims with prejudice. After a hearing, the trial court granted the motion. ’While Chase’s foreclosure claim remains pending in the circuit court, the Borrowers brought this appeal from the dismissal of their couhterclaims.
We raise sua sponte the jurisdiction of this appellate court. This court has jurisdiction to review final orders. Fla. R.App. P. 9.030(b)(1)(A). “An order is considered final if it ‘disposes of the cause on' its merits leaving no questions open for judicial determination except for 'the execution or enforcement of the decree if necessary,’” ‘Nero v. Cont’l Country Club R.O., Inc., 979 So.2d 263, 266 (Fla. 5th *960DCA 2007) (quoting Welch v. Resolution Tr. Corp., 590 So.2d 1098, 1099 (Fla. 5th DCA 1991)). The order dismissing the Borrowers’ counterclaims is not considered a “final order” because it does not dispose of the cause on the merits — rather, Chase’s foreclosure claim is still pending in the trial court. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974).
The appellate court , may exercise jurisdiction where the trial court’s dismissal of a counterclaim “adjudicates a distinct and severable cause of action.” Id. at 100; accord Agriesti v. Clevetrust Realty Inv’rs, 381 So.2d 753, 753-54 (Fla. 4th DCA 1980). By definition, a permissive counterclaim does not arise out of the transaction or occurrence that is 'the subject matter of the main claim. Fla. R. Civ. P. 1.170(b). As such, if this court finds that a counterclaim is permissive, then the partial final judgment'adjudicating the counterclaim is immediately appealable. On the other hand, if this court finds that a dismissed counterclaim is compulsory, then the order dismissing the counterclaim is “not appeal-able until a final disposition of the original cause has (been] obtained on the merits.” Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So.2d-507, 509 (Fla. 2d DCA 1993).
Compulsory counterclaims bear a “logical relationship” to the plaintiffs claims in that they arise out of the “same aggregate of operative facts as the original claim.” Londono v. Turkey Creek, Inc., 609 So.2d 14, 20 (Fla.1992) (quoting Neil v. S. Fla. Auto Painters, Inc., 397 So.2d 1160, 1164 (Fla. 3d DCA 1981)). We find that the Borrowers’ counterclaims for Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Unconscionability, Violation of the FCRCPA, Conspiracy to Violate the FCRCPA, Defamation per se, and Violation of the FCCPA are compulsory. As pled, each of these counterclaims bears a logical relationship to the foreclosure claim.2 Having found these counterclaims compulsory, we dismiss the appeal as to these counterclaims without prejudice for lack of jurisdiction.
We find that the Borrowers’ two counterclaims based on violation of the Florida Unfair Insurance Trade Practices Act are permissive. These claims are based on allegations that Chase’s predecessor participated in a force-placed insurance scheme. The “purchase of insurance at above-market premiums, undisclosed commissions, and illegal kickbacks” constitutes separate and distinct activity that does not arise out of the “same aggregate of operative facts” as the acts giving rise to the foreclosure. Id. (quoting Neil, 397 So.2d at 1164). We find that the order dismissing the Borrowers’ permissive counterclaims was a final order adjudicating distinct and severable causes of action. As such, this court has jurisdiction to reach the merits of the dismissal of these permissive counterclaims.
On the merits, we hold the trial court properly dismissed the Borrowers’ FUITPA counterclaims because they were not timely filed. The statute of limitations to bring an action under the FUITPA is four years. § 95.11(3)(f), Fla. Stat. (2014). The facts giving rise to the Borrowers’ FUITPA claims occurred between 2005 and 2008, and the Borrowers did not plead their FUITPA claims until 2014. Thus the four-year statute of limitations bars the *961Borrowers’ FUITPA counterclaims as a matter of law. We affirm the trial court’s dismissal of the Borrowers’ FUITPA counterclaims as barred by the statute of limitations.
Dismissed in part, Affirmed in part, and Remanded.
STEVENSON, MAY and FORST, JJ., concur.
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Riggins v. Rhoades, 373 So. 3d 655 (Fla. 6th DCA 2023)…tiff’s claims in that they arise out of the ‘same aggregate of operative facts as the original claim.’” Proino Breakfast Club, II, Inc. v. OGI Cap., Inc., 331 So. 3d 846, 849 (Fla. 2d DCA 2021) (quoting 4040 IBIS Circle, LLC v. JPMorgan Chase Bank, 193 So. 3d 957, 960 (Fla. 4th DCA 2016)). This distinction is critical for our purposes because, as the Fourth District put it: [I]f this court finds that a counterclaim is permissive, then the partial final judgment adjudicating the counterclaim is immediately ap…
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Zacarias Cabrera v. U.S. Bank Nat'l Assoc., 281 So. 3d 516 (Fla. 4th DCA 2019)…3 The trial court allowed Borrower to amend to state compulsory counterclaims without defining which of the two counts of the proposed counterclaim it deemed compulsory. In 4040 Ibis Circle, LLC v. JPMorgan Chase Bank, 193 So. 3d 957, 960 (Fla. 4th DCA 2016), a foreclosure proceeding, we explained that a compulsory counterclaim was one that bears a “‘logical relationship’ to the plaintiff’s claims in that they arise out of the ‘same aggregate of operative facts as the original c…
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Polito v. Keybank Nat'l Ass'n, 237 So. 3d 361 (Fla. 4th DCA 2017)…claims. This court does not have jurisdiction because an order dismissing a compulsory counterclaim is "not appealable until a final disposition of the original cause has [been] obtained on the merits." 4040 Ibis Circle, LLC v. JPMorgan Chase Bank , 193 So. 3d 957, 960 (Fla. 4th DCA 2016) (quoting Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A. , 621 So. 2d 507, 509 (Fla. 2d DCA 1993) ). Dismissed for lack of jurisdiction . May and Klingensmith, JJ., concur. Although not explicitly mentioned wit…
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
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
- Javier H. Londono, M.D. v. Turkey Creek, Inc., 609 So. 2d 14 (Fla. 1992)
- Maye G. Neil v. S. Fla. Auto Painters, Inc., 397 So. 2d 1160 (Fla. 3d DCA 1981)
- Welch v. Resolution Tr. Corp., 590 So. 2d 1098 (Fla. 5th DCA 1991)
- Agriesti v. Clevetrust Realty Invs., 381 So. 2d 753 (Fla. 4th DCA 1980)
- Nero v. Cont'l Country Club R.O., Inc., 979 So. 2d 263 (Fla. 5th DCA 2007)