English v. Bankers Trust Co. of California, 4D03-4567.
| Decision Date | 26 January 2005 |
| Docket Number | No. 4D03-4567.,4D03-4567. |
| Citation | 895 So.2d 1120 |
| Parties | Shana ENGLISH, Appellant, v. BANKERS TRUST COMPANY OF CALIFORNIA, N.A., etc., et al, Appellees. |
| Court | Florida District Court of Appeals |
Richard W. Glenn of Law Office of Richard W. Glenn, West Palm Beach, for appellant. Anne M. Malley of William M. Golson & Associates, Clearwater, for Appellee-Bankers Trust Company of California, N.A.
We affirm a summary judgment of foreclosure in favor of Bankers Trust. The trial court properly allowed Bankers Trust to join English in a re-foreclosure of a mortgage where it failed to join the true owner of the property, an indispensable party, in the first foreclosure.
There are no disputed issues of material fact. Bankers Trust first attempted to foreclose, in a separate case, in early 2002. It named only English, the original owner and mortgagor, as a defendant. That foreclosure resulted in a final judgment setting the debt at $73,839.75, and setting a foreclosure sale. Bankers Trust purchased the property at the foreclosure sale. Immediately thereafter, Bankers Trust learned of English's conveyance to Lesa Investments, and it brought a de novo foreclosure action naming both English and Lesa Investments. Another party, Van Zamft, was also added.
English does not deny the default in payment. Instead, she answers that, because there had been a prior foreclosure action and sale, she could not be joined in the re-foreclosure.
The trial court correctly concluded that the first action was void. Significantly, this is not a re-foreclosure to extinguish a junior lienor. Rather, this second action is an initial foreclosure as to the fee simple owner. Because Lesa Investments, the undisputed owner, was not a party to the first suit, the initial foreclosure judgment could not result in a valid sale, as the owner of the fee simple title was an indispensable party. Community Fed. Svgs. and Loan Ass'n v. Wright, 452 So.2d 638, 640 (Fla. 4th DCA 1984).
If the initial sale were not void, then there would be merit in English's claim that res judicata precludes this second action as to a deficiency judgment. The first foreclosure sale, however, is void for failure to join the fee simple owner. See Wright. That being the case, no further action, such as a motion under Florida Rule of Civil Procedure 1.540(b)(4), to vacate the first judgment, was necessary in order to join English again.
We note that, more than a century ago, the Florida Supreme Court recognized that "a foreclosure proceeding resulting in a final decree and a sale of the mortgaged property, without the holder of the legal title being before the court will have no effect to transfer his title to the purchaser at said sale." Jordan v. Sayre, 24 Fla. 1, 3 So. 329, 330 (1888). If the foreclosure proceeding has no effect to transfer title...
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