In an opinion affirming in part and reversing in part, Florida's Second District Court of Appeal found that a Trial Judge’s Order went too far when it forbade the borrower in a foreclosure case, who had surrendered the real property at issue in an earlier bankruptcy, to contest the foreclosure “in any manner” due to that bankruptcy surrender.  In reversing in part, the Court of Appeal held that there are circumstances where a borrower may be allowed to challenge some aspects of a foreclosure case; for example, in the amounts due and owing, or other limited circumstances that may have arisen post-bankruptcy.  Importantly, however, in affirming, the Second District Court of Appeal also ruled that surrender in a bankruptcy case means that in a subsequent foreclosure case a borrower is not entitled to challenge the lender’s own entitlement to foreclose.  “Because the debtor’s interest has been surrendered, the debtor is no longer entitled to challenge the entitlement to foreclose the debtor’s former legal interest.”  Note that this opinion is not final yet.

Today, the Fourth District Court of Appeal for Florida in Wells Fargo Bank, N.A. v.  Tan, Case No. 4D20-613, held that Fla. Stat. 702.036 barred the Court from granting relief as it related to a Senior Mortgagee seeking to vacate a judgment that was entered against them by a Junior Mortgagee.  For a little more background on this holding, “a non-party purchased the real property at issue and executed a mortgage in favor of Bear Stearns Residential Mortgage Corporation. Bear Stearns assigned the mortgage to Wells Fargo. The non-party later sold the property to Chi Peng Tan, who executed a mortgage in favor of First Magnus Financial Corporation.

First Magnus filed a foreclosure complaint against multiple defendants, including Tan and Wells Fargo. A judgment was entered that foreclosed all interests, including the interest held by Wells Fargo. The record shows that Wells Fargo recorded its mortgage before First Magnus recorded its mortgage.”

This is case is not yet final.

On December 31, 2020, in Page v. Deutsche Bank Trust Company Americas, No. SC19-1137, the Florida Supreme Court quashed the Fourth DCA’s ruling that the borrower was not entitled to attorney’s fees due to the bank's failure to prove standing, and approved the decisions made in Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017) and Harris v. Bank of New York Mellon, 2018 WL 6816177 (Fla. 2d DCA 2018). 
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In Page, the lower court held that the bank did not prove standing at the time the complaint was filed, but did establish standing at trial. The Fourth DCA ruled that the borrower who successfully argues that the bank lacked standing at the time the suit was filed cannot rely on the contract to obtain attorney’s fees under Fla. Stat. section 57.105(7). 

The Fourth DCA in Page certified conflict with the Fifth DCA’s decision in Madl and the Second DCA’s decision in Harris. Both Madl and Harris held that a prevailing borrower is entitled to attorney’s fees if it is established that plaintiff became subject to the unilateral fee provision in the contract. In other words, if plaintiff lacks standing at the time the suit was filed, but subsequently establishes standing at trial, then the borrower is entitled to attorney’s fees under section 57.105(7). By contrast, in Page, the Fourth DCA did not give weight to the fact that the plaintiff subsequently established standing at trial.  

On December 9, 2020, in Accardi v. Regions Bank, No. 4D20-0662, the Fourth DCA held that the one-year statute of limitations specified in section 95.11(5)(h), Fla. Stat., applies to a motion for deficiency judgment brought within an existing mortgage foreclosure action. The Court also determined the limitation period began with the issuance of the Certificate of Title. 

On December 31, 2020, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510, that goes into effect May 2021.

The amended rule adopts the federal summary judgment standard. Prior to the amendment, Florida courts and the federal courts had not been aligned in their controlling summary judgment standard.
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Prior to this amendment, there were two relevant differences between the Florida and the Federal summary judgment standards:

1. Florida courts have required the moving party to conclusively disprove the non-movant’s theory of the case in order to eliminate any issue of fact. By contrast, the U.S. Supreme Court has held that there is no express or implied requirement in the federal rule that the moving party must negate the opponent’s claim. Under the newly adopted federal summary judgment standard, the extent of the moving party’s burden varies depending on who bears the burden of persuasion at trial; and 
2. Florida had a more lenient standard for what constitutes a genuine issue of material fact. Prior to the amendment, the existence of any competent evidence created an issue of fact, however credible or incredible, substantial or trivial, it precluded summary judgment, so long as the “slightest doubt” was raised. (Citations omitted). By contrast, the U.S. Supreme Court has described the federal test as whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. (Citations omitted). A party opposing summary judgment must do more than simply show that there is some metaphysical doubt as to material fact. 

On December 4, 2020, the Fifth District Court of Appeal of Florida, in Torruella and Luxury Living Developers Corporation v. Nationstar Mortgage, LLC,  Case No. 5D19-3298, held that “a dismissal for lack of personal jurisdiction does not confer ‘prevailing party’ status on the party over whom the trial court lacks jurisdiction because the trial court does not rule on any issue central to the merits of the dispute, and the legal relationship between the parties following such a disposition has not been materially changed.”

This case is not yet final, and Padgett Law Group recommends reading the entire case for the specific facts that led to this holding.