Deutsche Bank Nat'l Trust Co. v. Cope, Case No. 2D18-3696

• Decision Date: 29 May 2020
• Docket Number: Case No. 2D18-3696
• Citation: 311 So.3d 120
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR the HOLDERS OF GSAMP TRUST 2005-AHL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AHL, Appellant, v. Trey G. COPE; Amanda M. Cope; Mortgage Electronic Registration Systems, Inc., as Nominee for ARK-LA-TEX Financial Services LLC d/b/a Benchmark Mortgage; Sonia Toribio a/k/a Sonia Miguilina Mercedes a/k/a Sonia Mercedes Toribio a/k/a Sonia Mercedes; Athis R. Toribio; Any and All Uknown Parties Claiming by, Through, Under, and Against the Herein Named Individual Defendants Who are Not Known to be Dead or Alive Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants; Unknown Tenant #1; and Unknown Tenant #2, Appellees.
• Court: Florida District Court of Appeals

311 So.3d 120

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR the HOLDERS OF GSAMP TRUST 2005-AHL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AHL, Appellant,

v.Trey G. COPE; Amanda M. Cope; Mortgage Electronic Registration Systems, Inc., as Nominee for ARK-LA-TEX Financial Services LLC d/b/a Benchmark Mortgage; Sonia Toribio a/k/a Sonia Miguilina Mercedes a/k/a Sonia Mercedes Toribio a/k/a Sonia Mercedes; Athis R. Toribio; Any and All Uknown Parties Claiming by, Through, Under, and Against the Herein Named Individual Defendants Who are Not Known to be Dead or Alive Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants; Unknown Tenant #1; and Unknown Tenant #2, Appellees.

Case No. 2D18-3696

District Court of Appeal of Florida, Second District.

Opinion filed May 29, 2020

Benjamin B. Brown and Joseph T. Kohn of Quarles & Brady LLP, Naples, for Appellant.

Michael E. Schuchat of Berlin Patten Ebling, PLLC, Sarasota, for Appellees Trey G. Cope, Amanda M. Cope, and Mortgage Electronic Registration Systems, Inc., as Nominee for ARK-LA-TEX Financial Services, LLC.

No appearance for remaining Appellees.

SALARIO, Judge.

This case concerns whether a mortgage held by Deutsche Bank (the Bank) adequately describes a specific parcel of residential real property referred to as Lot 1. Trey Cope, Amanda Cope, and Mortgage Electronic Registration Systems (MERS) defended the Bank's action to foreclose the mortgage on Lot 1 by arguing that they had purchased Lot 1 without notice of the mortgage because the description of the property in the mortgage was patently ambiguous. The trial court granted summary judgment in favor of the Copes and MERS and denied a motion for partial summary judgment by the Bank on the somewhat different basis that the mortgage did not describe Lot 1 by lot number. Because the language of the mortgage sufficiently and unambiguously describes the encumbered property, we reverse.

The property at issue was originally identified as Lot 1 in a deed conveying the parcel to Sonia Mercedes in 2002. That same deed also conveyed two nonresidential parcels, which were identified as Lots 22 and 23. Ms. Mercedes conveyed all three parcels to Athis and Sonia Toribio in 2005. However, the Mercedes-to-Toribio deed referred to Lot 1 by its unique parcel ID number and its address instead of by its lot number as the source deed had.

The same day that the Toribios received title to the three parcels, they also executed the mortgage at issue in this appeal. Like the legal description in the Mercedes-to-Toribio deed, the body of the mortgage describes the property it encumbers by referring to Lot 1's street address and parcel ID number, but not its lot number (i.e., it does not say "Lot 1"). The body of the mortgage also states that a legal description of the property the mortgage encumbers can be found on an attached addendum. The addendum, labeled as Exhibit A, declares "ALL THAT CERTAIN LAND SITUATED IN CHARLOTTE COUNTY, FLORIDA:" and then describes three parcels of land. The first two are identified as Lots 22 and 23, and the third is again identified with the same address and parcel ID number that appear in the deed and in the body of the mortgage. The promissory note secured by the mortgage also refers to the same property address that appears in the body of and on Exhibit A to the mortgage.

The mortgage was assigned to the Bank in 2011, and in 2012, the Bank successfully foreclosed on Lots 22 and 23. For reasons that are not clear from our record, the Bank did not also seek to foreclose on Lot 1 at that time. The Toribios subsequently conveyed Lot 1 to the Copes in 2015. Also in 2015, MERS recorded a junior mortgage on the same property.

In 2017, the Bank initiated the current action against the Toribios, the Copes, and MERS to foreclose on Lot 1. The Toribios were defaulted after they failed to file any response to the Bank's complaint. The Bank moved for partial summary judgment on the question of whether the mortgage encumbered Lot 1, arguing that the mortgage clearly identified Lot 1 by its address and parcel ID number, and it attached to its motion the affidavit of a surveyor attesting that in the mortgage, Lot 1 was "sufficiently and unambiguously described such that it can be located to the exclusion of all other real property." The Copes and MERS filed a joint motion for summary judgment arguing that they were both bona fide purchasers of Lot 1, having purchased it for value and without any notice of the Bank's mortgage. The lack of notice, they claimed, was due to the fact that the mortgage is patently ambiguous as to which of the three described parcels it encumbers.

After a hearing on both motions, the trial court agreed with the Copes and MERS that the mortgage did not give them notice that it encumbered Lot 1, but not on the basis that the mortgage is patently ambiguous. Rather, it found that the omission of the term "Lot 1" from the mortgage meant that the mortgage did not sufficiently describe that parcel—an argument that neither party had made in their motion or at the hearing. According to the trial court, the property address and parcel ID number were insufficient to give notice that the property was encumbered by the mortgage. On that basis, the trial court granted summary judgment in favor of the Copes and MERS and denied partial summary judgment to the Bank.

In this timely appeal, the Bank challenges the trial court's determination that the property address and parcel ID number were insufficient to give notice that Lot 1 was encumbered.¹ The Copes and MERS correctly concede that the trial court's reasoning was incorrect, but they argue that the trial court nevertheless reached the correct conclusion because the mortgage is patently ambiguous. "We review a summary judgment under a de novo standard of review." Johnson v. Deutsche Bank Nat'l Tr. Co. Ams., 248 So. 3d 1205, 1207 (Fla. 2d DCA 2018) (citing Herendeen v. Mandelbaum, 232 So. 3d 487, 489 (Fla. 2d DCA 2017) ). A party moving for summary judgment must show that "there are no genuine issues of material fact and that it is entitled to judgment as a matter of law." Id. at 1208 (quoting Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011) ); see also Cerron v. GMAC Mortg., LLC, 93 So. 3d 456, 457 (Fla. 2d DCA 2012).

In this case, the only basis upon which the Copes and MERS claimed entitlement to summary judgment was that they were bona fide purchasers of Lot 1 without notice of the mortgage. A bona fide purchaser takes title to property free of another party's interest in the property so long as the property is purchased for value and without any notice of the other party's interest. See § 695.01(1), Fla. Stat. (2015) ; Harkless v. Laubhan, 278 So. 3d 728, 733 (Fla. 2d DCA 2019) (describing the criteria of a bona fide purchaser). But the bona fide purchaser defense fails when the purchaser had actual, implied, or constructive notice of the outstanding interest. Harkless, 278 So. 3d at 733 (explaining that "three types of notice must be considered": actual, implied, and constructive notice). The act of recording a mortgage is generally sufficient to give subsequent purchasers constructive notice of the mortgage. See Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087, 1091 (Fla. 2d DCA 2015) (explaining that a party did have constructive notice of the other party's superior interest in a property because the mortgage was recorded); cf. Harkless, 278 So. 3d at 734 (concluding that a purchaser did not have constructive notice of a property interest because it was not recorded). There is no dispute here that the Bank properly recorded the mortgage. The issue is whether the mortgage itself sufficiently and unambiguously describes Lot 1.

Logically, a recorded mortgage can only give constructive notice of an encumbered property that is sufficiently described by the mortgage. See Fla. Bank & Tr. Co. of W. Palm Beach v. Ocean & Lake Realty Co., 118 Fla. 695, 160 So. 1, 2 (1935) ("To convey or mortgage real estate there must be such a description as will identify the land which is the subject of the deed or mortgage." (citing Boley v. McMillan, 66 Fla. 159, 63 So. 703, 706 (1913) )); Lafitte v. Gigliotti Pipeline, Inc., 624 So. 2d 844, 845 (Fla. 2d DCA 1993) (explaining that a mortgage is not effective if a title search of the encumbered property would not reveal the mortgage); Air Flow Heating & Air Conditioning, Inc. v. Baker, 326 So. 2d 449, 451 (Fla. 4th DCA 1976) ("[R]ecording a mortgage with [n]o description imparts notice of nothing and defeats the very effect and purpose of recordation."). "The rule is that a description is sufficient if, by relying on the description read in light of all facts and circumstances referred to in the instrument, a surveyor could locate the land." U.S. Bank N.A. v. Holbrook, 226 So. 3d 363, 364 n.2 (Fla. 2d DCA 2017) (quoting Mendelson v. Great W. Bank, F.S.B., 712 So. 2d 1194, 1196 (Fla. 2d DCA 1998) ); accord Mitchell v. Thomas, 467 So. 2d 326, 328 (Fla. 2d DCA 1985) ("To effect a valid conveyance of land, a deed must contain a legal description which is sufficiently definite and certain to permit the land to be identified." (citing Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656, 660 (1903) )). Thus, the Copes and MERS can only claim a lack of notice if a surveyor could not locate Lot 1 by its street address and parcel ID number.

Courts generally understand a street address to sufficiently describe a parcel of land. Mendelson, 712 So. 2d at 1196 ("Florida courts have upheld conveyances that identified the subject properties by their street addresses ...." (first citing Bajrangi v. Magnethel Enter., Inc., 589 So. 2d 416, 419-20 (Fla. 5th DCA 1991) ; and then citing Baker v. Baker, 271 So. 2d 796, 797-98 (Fla. 3d DCA 1973) )); see also Holbrook, 226 So. 3d at 364 n.2 (recognizing that a mortgage may not need to be reformed to be...