Monday, March 28, 2016

FYI: Fla App Ct (4th DCA) Holds Erroneous Legal Description Does Not Require Dismissal or Restart of Foreclosure

The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action, holding that the mortgagee was deprived of due process because the dismissal was entered sua sponte and without notice or opportunity to be heard, and because correction of an erroneous legal description did not require dismissal of the entire case.


A copy of the opinion is available at:  Link to Opinion


A homeowner defaulted and the mortgagee obtained a final judgment of foreclosure.  After the foreclosure sale and issuance of a certificate of title, the mortgagee moved to vacate the final judgment, sale and certificate of title because the documents contained an incorrect legal description.


The trial court granted the motion to vacate, but then dismissed the case sua sponte without prior notice or explanation. The mortgagee moved for rehearing, which was denied.


The Fourth District agreed that the mortgagee's argument that it was deprived of due process, reasoning that "[d]ue process requires notice and an opportunity to be heard prior to dismissal," neither party requested dismissal, and "the lower court did not provide [plaintiff] notice of its intent to dismiss or allow for an opportunity to be heard prior to dismissal."


The Appellate Court then addressed whether the correcting the legal description required dismissal, explaining that "[w]hen a mortgage contains an incorrect legal description, a court may correct the mistake before foreclosure. If, however, the mistaken legal description is not corrected before final judgment of foreclosure, and the mistake is carried into the advertisement for sale and the foreclosure deed, a court cannot reform the mistake in the deed and judgment; rather, the foreclosure process must begin anew."


Relying upon a ruling from a different appellate court in Florida that addressed the question of "whether beginning anew requires dismissal and the filing of a new complaint," the Fourth District reasoned that, although the parties must be returned to their "original status," this "does not require dismissal of the entire case because the plaintiff can simply amend the complaint to correct the erroneous legal description."


The mortgage could be reformed and then foreclosed, "[b]ut first, the [foreclosure] deed to the property must be canceled, and the original foreclosure judgment set aside …" in order to return the parties to their original status.


The Appellate Court concluded that the trial court erred by dismissing the entire case, reversed the dismissal, and remanded the case for further proceedings consistent with its opinion.





Ralph T. Wutscher
Maurice Wutscher LLP
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