Friday, August 13, 2010

Mandamus Issued To Require Writ Of Possession When Tenant Failed To Deposit Rent Into Court Registry

In Poal WK Taft, LLC v. Johnson Medical Center Corp. (4D10-2482), the Fourth District released an opinion and granted a petition for writ of mandamus.  The court's opinion began:
In this commercial landlord/tenant dispute, a landlord petitions for mandamus, seeking an immediate default and writ of possession based on the tenant’s failure to timely pay rent into the court registry in accordance with the trial court’s order entered under section 83.232, Florida Statutes. Although the tenant paid the rent into the registry, it paid after the due date set forth in the lease. Because the tenant failed to comply with the statutory requirements, the court has a ministerial duty to provide the remedies set forth in the statute. We grant the petition.

Wednesday, August 11, 2010

Foreign Corporation Remains Subject To Service Of Process Until Withdrawal From State Approved

In Vrchota Corporation v. Kelly (4D09-4939), the Fourth District affirmed the trial court's order denying a motion to dismiss for improper venue.  The court stated:
A plaintiff has the option of selecting venue, provided that the plaintiff’s choice is supported by the statutes....In the instant case, Defendant Vrchota Corporation submitted an affidavit challenging the Plaintiff’s choice of venue, alleging that the corporation was not amenable to suit in Palm Beach County because it did not have an agent in the county at the time that service was allegedly made.
The facts alleged are that Plaintiff filed suit in Palm Beach County on June 12, 2009 and effected service upon Kevin Piller as registered agent o n June 19, 2009. Defendant averred in its affidavit that Vrchota Corporation “withdrew” from doing business in the State of Florida and revoked its’ registered agent’s authority to accept service, all pursuant to section 607.1520, Florida Statutes, on June 8, 2009, several days prior to the commencement of this litigation. Defendant asserted that as of June 8, 2009, Defendant Vrchota Corporation did not have an office, agent or representative in Palm Beach County.
The only dispute is whether, as a matter of law, the registered agent’s authority had been revoked at the time of service because the defendant foreign corporation had “withdrawn” from doing business in Florida pursuant to section 607.1520, Florida Statutes. We hold that the registered agent’s authority was not revoked prior to the date of service upon him, because no evidence was adduced below that a certificate of withdrawal had issued permitting Defendant Vrchota Corporation to withdraw from transacting business in the state of Florida at that time.
Clearly, then, by the terms of the statute, any application for a certificate of withdrawal requires that the application set forth the intent to revoke the authority of the registered agent to accept service of process. However, the statute must be read in its entirety to determine when that revocation takes effect. Defendant Vrchota Corporation assumes that the revocation takes effect when written and submitted as part of the application for the certificate of withdrawal. However, a reading of the plain language of the statute establishes that is not the case.
As noted above, paragraph (1) of the statute establishes that a foreign corporation may not withdraw until it obtains a certificate of withdrawal. Further, paragraph (3) provides that “[a]fter the withdrawal of the corporation is effective, service of process on the Department of State under this section is service on the foreign corporation.” Therefore, while the statute requires the written intent to revoke the registered agent’s authority as part of the application for a certificate of withdrawal, the statute also plainly states that withdrawal is not effective until the certificate of withdrawal is issued by the Department of State. Only then will the Department become the agent for service of process. Thus, the registered agent remains authorized to accept service of process, just as the corporation remains authorized to do business in the state, unless and until the Department of State issues a certificate of withdrawal.

Petitions Seeking Removal Of Judge Presiding Over Foreclosure Division Denied

In Nudel v. Flagstar Bank, FSB (4D10-641) and Davis v. HSBC Bank USA (4D10-1842), which can be viewed HERE, the Fourth District denied petitions for writ of prohibition seeking to recuse the trial court judge.  The petitions were the seventh and eighth petitions filed by the same law firm seeking to recuse the same circuit court judge  The court stated:
As in the prior petitions and motions to disqualify filed by the firm, Ice attempts to pyramid a host of unrelated matters, which were not raised within the ten-day time limit of Florida Rule of Judicial Administration 2.330(e), to achieve its goal. The repetitive claims have been reviewed de novo on numerous occasions and rejected on the merits. None of these issues, alone or together, provide Ice’s clients with any objectively reasonable basis to fear that the judge is biased.
In addition to re-raising these issues, the Ice firm raised new arguments alleging that ex parte communication between opposing counsel and the judge requires disqualification....Based on these allegedly improper ex parte communications, Ice seeks to disqualify the judge from all of its cases. In all of its prior petitions, Ice has sought what amounts to firm-wide disqualification which would effectively exclude Ice from proceeding in the foreclosure division. Judge Sasser is presently the only judge presiding in the foreclosure division.
The court concluded:
Ex parte communications regarding purely administrative, nonsubstantive matters, such as scheduling, do not require disqualification....The ex parte communications in the present cases all involved purely administrative, non-substantive matters regarding the scheduling of motions, not the merits of the case. The judge, who had read and was familiar with Ice’s motions, did not exhibit any objectively reasonable basis for Ice’s clients to fear bias when she indicated that the motions did not require additional time.
As to the communications between the administrative personnel of the bank’s law firm and the JA, neither the ex parte communications, nor the alleged animosity that has developed between the JA and one of Ice’s employees, provides an objectively reasonable basis for Ice’s clients to fear that the judge will not be fair and impartial....As noted in Leone, scheduling of hearings is typically a matter delegated by judges to judicial assistants. This is particularly necessary in the foreclosure division which has an extraordinary backlog of cases. Judge Sasser cannot be expected to hold hearings regarding the length of upcoming hearings in order to settle insignificant disputes about whether a n additional five minutes is necessary for oral argument on a motion.
Ice’s repetitive attempts at disqualification in these cases appear designed, not to ensure that the proceedings against their clients are presided over by a neutral and fair tribunal, but to achieve a strategic advantage and/or frustrate the efficient function of the foreclosure division. As we suggested in Nassetta v. Kaplan, 557 So. 2d 919, 921 (Fla. 4th DCA 1990), this tactic is an improper use of the disqualification procedure.

Summary Judgement In Foreclosure Action Reversed

In Kontos v. American Home Mortgage Servicing, Inc. (1D09-2803), the First District reversed a summary judgment in a foreclosure proceeding.  The Court stated:
As all parties acknowledge, however, the uncontested facts of record do not establish that appellee is presently entitled to foreclose because the record contains no evidence of any assignment or comparable transaction.

Friday, August 6, 2010

Summary Judgment Of Mortgage Assigned By MERS Affirmed

In Taylor v. Deutsche Bank National Trust Company, as Trustee (5D09-4035), the Fifth District affirmed the trial court's summary final judgment in favor of Deutsche Bank. The court began the opinion by stating "This is yet another in the nationwide series of cases dealing with the processing of mortgages, such as the one given by Mr. Taylor on his residential real property, by use of the system operated by a corporation known as Mortgage Electronic Registration Systems, Inc. ("MERS")."  The court then noted:
The mortgage defines 'Lender' as First Franklin, and MERS as a separate corporation acting solely as a nominee for Lender and Lender's successors and assigns. MERS is specifically described (in bold print) as the 'mortgagee under the Security Instrument.'...The mortgage then specifies that the borrower, Mr. Taylor, 'does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, the following described property. . . .'
[Taylor's] amended answer denied that the note was assigned by MERS to Deutsche Bank and denied that the mortgage was properly assigned to it. The affirmative defenses, among other things, alleged that Deutsche Bank did not have standing to enforce the note because the exhibits attached to the complaint were insufficient to demonstrate standing and inconsistent with Deutsche Bank's assertion that it owned the note and mortgage....Mr. Taylor argued before the trial court, as he does before this court, that because the note was not indorsed and contained neither an allonge nor a specific assignment, it was payable only to First Franklin, and that Deutsche Bank, therefore, had no standing to attempt to enforce it.
The court concluded:
Because a promissory note is a negotiable instrument, and because a mortgage provides the security for the repayment of the note, this statute leads to the conclusion that the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder....Thus, Mr. Taylor's foundational argument -- that only a holder in due course can enforce the note by foreclosing the mortgage -- is flawed in a significant way. The statute allows a nonholder with certain specific characteristics to foreclose as well.
In the present case MERS is identified in the mortgage as a corporation that 'is acting solely as a nominee for Lender,' and as 'the mortgagee under this Security Agreement.'  The mortgage also contains the following provision:
Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property, and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.
(Emphasis added). It appears, consequently, that the mortgage document, reciting the explicit agreement of Mr. Taylor, grants to MERS the status of a nonholder in possession as that position is defined by section 673.3011.
MERS, however, is not the party that foreclosed the subject note and mortgage.  Rather, Deutsche Bank is.....The written assignment filed as part of the summary judgment documents in the case before us specifically recites that MERS assigned to the appellee, Deutsche Bank.....We conclude, accordingly, that the written assignment of the note and mortgage from MERS to Deutsche Bank properly transferred the note and mortgage to Deutsche Bank. The transfer, moreover, was not defective by reason of the fact that MERS lacked a beneficial ownership interest in the note at the time of the assignment, because MERS was lawfully acting in the place of the holder and was given explicit and agreed upon authority to make just such an assignment.
Citing to the Second District, the court also noted:
that 'the Florida real party in interest rule, Fla. R. Civ. P. 1.210(a), permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest.'
Oral argument in this case was held on July 15, 2010 and can be viewed below:

Appellant's Argument

Appellee's Argument

Appellant's Rebuttal

You can view the briefs at the following links:
The docket indicates that a reply was permitted in support of the rehearing motion.  However, I do not have a copy.  The rehearing motion and motion for certification were denied.