Citimortgage, Inc. v. Henry, 2D07-5982.
| Decision Date | 09 December 2009 |
| Docket Number | No. 2D08-6252.,No. 2D07-5982.,2D07-5982.,2D08-6252. |
| Citation | 24 So.3d 641 |
| Parties | CITIMORTGAGE, INC., Appellant, v. Bruce J. HENRY, Wachovia Bank, National Association, Wachovia SBA Lending, Inc., Melissa A. Henry, Neal J. Loth, Valerie M. Loth, John Doe, Jane Doe, as unknown tenant(s) in possession of the subject property, Appellees. |
| Court | Florida District Court of Appeals |
David J. Tong, John B. Gibbons, and Heather M. Escriva of Saxon, Gilmore, Carraway & Gibbons, P.A., Tampa, for Appellant.
Ceci Culpepper Berman of Fowler White Boggs, P.A., Tampa, for Appellee Wachovia SBA Lending, Inc.
No appearance for remaining Appellees.
In these consolidated appeals, Citimortgage, Inc., challenges two orders entered by the trial court below in favor of Wachovia Bank regarding two foreclosure proceedings on the same parcel of real estate. We reverse.
On December 19, 2002, Bruce J. Henry and Melissa A. Henry (the Borrowers) executed and delivered a promissory note and mortgage to Mortgage Electronic Registration Systems Incorporated (MERS) as nominee for Southshore Mortgage Company. This mortgage was recorded on December 26, 2002. Subsequently, the Borrowers executed and delivered to Wachovia a note secured by two mortgages encumbering the same real property described in the MERS mortgage. These mortgages were recorded on July 3, 2003.
In 2006, Wachovia filed its foreclosure action on its mortgages, listing both MERS and Southshore Mortgage Company as defendants. By its complaint, Wachovia alleged that its interest was superior to any interest that may be claimed by MERS or Southshore because the interest "is not based on a bona fide loan." Neither defendant filed any type of answer or appearance, and a default was entered against them on May 15, 2007. The trial court then granted Wachovia's motion for summary judgment on July 18, 2007, and entered a final judgment, stating, "The Plaintiff has established that its interest appeared as a matter of record prior to that of any Defendants."
On June 1, 2007, after the entry of the default against MERS but prior to the entry of the final judgment of foreclosure in Wachovia's favor, MERS assigned its mortgage interest to Citimortgage. This assignment was recorded June 26, 2007. Citimortgage then filed its foreclosure proceeding naming Wachovia as a defendant. Wachovia answered and raised res judicata as an affirmative defense, noting that the prior final judgment of foreclosure previously had adjudicated the interest of the MERS mortgage. On November 28, 2007, the trial court granted a final summary judgment on the affirmative defense in favor of Wachovia, and Citimortgage appeals that final judgment.
In related proceedings, Citimortgage also filed its motion to intervene and requested that the Wachovia foreclosure judgment be vacated. This motion was denied, and Citimortgage also appeals the order denying that relief.
In resolving this consolidated appeal, the issue that we must address is whether the trial court's judgment of foreclosure entered on the Wachovia mortgage was valid so as to be a viable affirmative defense to Citimortgage's foreclosure proceeding. If the prior foreclosure proceeding was a nullity, then not only should the summary judgment on appeal be reversed, but also the order that denied Citimortgage's request to vacate the prior foreclosure judgment.
Our resolution of this issue is controlled by Cone Bros. Construction Co. v. Moore, 141 Fla. 420, 193 So. 288 (1940). The facts of that case are very similar to those of the instant case. In December 1926, H. Palmer Harn, the property owner, executed and delivered a mortgage to Subdivision Development, Inc.; however, that mortgage was not immediately recorded. Subsequently, on February 22, 1927, the owner executed and delivered a mortgage on the same property to Mrs. M.W. Moore. That mortgage was recorded on March 15, 1927, prior to the recordation of the earlier mortgage. At some point in time later, the Subdivision mortgage was assigned to Cone Brothers Construction Company.
In 1928, Cone Brothers filed a foreclosure action on its mortgage, naming the property owner and Mrs. Moore as defendants. There was no responsive pleading filed by Mrs. Moore, and the trial court entered a final judgment of foreclosure in favor of Cone Brothers. In 1937, Mrs. Moore filed an action to foreclose her mortgage on the real property, naming Cone Brothers as a defendant. Cone Brothers filed its answer and affirmative defenses, alleging that the prior foreclosure action had foreclosed Mrs. Moore's interest in the property. Additionally, Cone Brothers alleged that its mortgage interest was superior to Mrs. Moore's because its mortgage was a purchase money mortgage in favor of Cone Brother's predecessor in interest of which Mrs. Moore had actual knowledge at the time she extended the loan to the property owner.
In addition to the issue we have before us, the Cone Bros. court also had to address the issue of whether Cone Brothers had properly...
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Bank of Am., N.A. v. Kipps Colony II Condo. Ass'n, Inc.
...his security. He cannot be compelled to be a party to a suit by a junior encumbrancer foreclosing his lien.” Citimortgage, Inc. v. Henry, 24 So.3d 641, 643 (Fla. 2d DCA 2009) (quoting Cone Bros. Constr. Co. v. Moore, 141 Fla. 420, 193 So. 288, 290 (1940) ); accord Futrell Custom Pools, Inc.......
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Bank of Am., N.A. v. Kipps Colony II Condo. Ass'n, Inc.
...his security. He cannot be compelled to be a party to a suit by a junior encumbrancer foreclosing his lien." Citimortgage, Inc. v. Henry, 24 So. 3d 641, 643 (Fla. 2d DCA 2009) (quoting Cone Bros. Constr. Co. v. Moore, 193 So. 288, 290 (Fla. 1940)); accord Futrell Custom Pools, Inc. v. Sunsh......
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...finding that although Wells Fargo was improperly joined as a party to Harbor Towers' foreclosure action, see Citimortgage v. Henry, 24 So.3d 641, 643 (Fla. 2d DCA 2009), it had slept on its rights by not participating in the county court case and was barred by laches and equitable estoppel ......
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...being foreclosed'" (quoting Garcia v. Stewart, 906 So. 2d 1117, 1120 (Fla. 4th DCA 2005))); Citi-Mortgage, Inc. v. Wachovia Bank, 24 So. 3d 641, 642-43 (Fla. 2d DCA 2009); Bank of Am., N.A. v. Kipps Colony II Condo. Ass'n, Inc., 201 So. 3d 670 (Fla. 2d DCA 2016).[114] Cone Bros. Constr. Co.......
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...141 Fla. 420, 426 (1940).[114] Cone Bros. Constr. Co. v. Moore, 141 Fla. 420, 426 (1940).[115] CitiMortgage, Inc. v. Wachovia Bank, 24 So. 3d 641, 642-43 (Fla. 2d DCA 2009).[116] It should be pointed out, however, that the Second District Court of Appeal has held that even a quiet title act......
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Chapter 14-3 Rule 1.540 and Motions to Vacate Judgment
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