Holt v. WELLS FARGO BANK, NA, 4D09-3015.

• Decision Date: 14 April 2010
• Docket Number: No. 4D09-3015.,4D09-3015.
• Citation: Holt v. Wells Fargo Bank, NA, 32 So.3d 194 (Fla. App. 2010)
• Parties: Kristy S. HOLT, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
• Court: Florida District Court of Appeals

32 So.3d 194

Kristy S. HOLT, Appellant, v. WELLS FARGO BANK, N.A., Appellee.

No. 4D09-3015.

District Court of Appeal of Florida, Fourth District.

April 14, 2010.

Philippe Symonovicz of the Law Offices of Philippe Symonovicz, and Jerome R. Schechter, Fort Lauderdale, for appellant.

Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for appellee.

STEVENSON, J.

In this mortgage foreclosure case, the bank filed a complaint seeking to foreclose on a mortgage on real property located in Broward County, Florida. Holt, the out-of-state owner of the real property, was personally served with process at her California home and, when she failed to file an answer, a default was entered. Several months later, the non-resident property owner filed a motion to quash service of process and vacate the default, asserting the complaint did not allege facts that would support the exercise of personal jurisdiction under Florida's long-arm statute. The trial court accepted the property owner's argument and found that it lacked the personal jurisdiction necessary to enter a deficiency judgment, but refused to quash service of process as it had in rem jurisdiction over the Florida real property. The court vacated the default and afforded the property owner the opportunity to file an answer. Both parties have challenged the trial court's July 13, 2009 order. We affirm the order appealed in all respects, save the trial court's finding that it lacked personal jurisdiction over the non-resident property owner and write primarily to address that issue.

Prior to 1993, section 48.193(1)(c), Florida Statutes, provided that "owning, using, or possessing any real property within this state" was sufficient to give rise to personal jurisdiction provided the cause of action arose from such ownership, use, or possession. Ownership of real property in Florida was thus held sufficient to establish personal jurisdiction where the cause of action arose from such ownership. See Nichols v. Paulucci, 652 So.2d 389, 392 n. 5 (Fla. 5th DCA 1995); cf. Damoth v. Reinitz, 485 So.2d 881, 883 (Fla. 2d DCA 1986).

In 1993, the legislature amended subsection (1)(c), adding the words "holding a mortgage or other lien on," such that the statute now provides "owning, using, possessing, or holding a mortgage or other lien on any real property within this state" gives rise to personal jurisdiction. Despite the appellant's argument to the contrary, we do not believe that the...