ABDUL SALAM and GHAZALA K. SALAM v. U.S. BANK NATIONAL ASSOC., ETC
16-1693
| Fla. Dist. Ct. App. | Dec 20, 2017Background
- In 2005 the Salams executed a promissory note and mortgage to Wells Fargo; the mortgage referenced an attached legal description but no attachment was recorded with the mortgage copy introduced at trial.
- The mortgage included the property street address and a clerk’s stamp showing recording information: Official Records Book 39480, Page 686, Broward County, recorded April 20, 2005.
- U.S. Bank, as trustee for a securitized trust, sued in 2014 to foreclose the mortgage and introduced the original mortgage and an assignment at trial; the assignment contained a legal description and referenced the same recording information.
- After the bank rested, the Salams moved for involuntary dismissal, arguing the mortgage lacked a legal description and thus the bank failed to prove a lien on the property; they also argued no reformation count had been pled.
- The trial court denied the motion; on appeal the Fourth District reviewed whether the bank had presented a prima facie case of foreclosure despite the missing attachment.
- The Fourth District affirmed, finding the mortgage’s parties, street address, and recording references (and the assignment containing a legal description) rendered a sufficient description to establish a prima facie case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mortgage lacking an attached metes-and-bounds legal description defeats foreclosure prima facie case | Bank: mortgage plus note, property address, recording/book-page stamp, and assignment with legal description suffice to identify encumbered property | Salams: absence of legal description in the mortgage means bank failed to prove a lien; could be foreclosing on only part of property and bank didn’t plead reformation | Court: Affirmed — mortgage with address and recording information (and assignment with legal description) was sufficient to establish a prima facie foreclosure case |
| Whether deficiency must be raised as affirmative defense to be considered at involuntary dismissal | Bank: homeowners waived the issue by not pleading it as affirmative defense | Salams: denial of bank’s allegations and trial arguments preserved challenge | Court: Not relied on — resolved on sufficiency of bank’s prima facie evidence |
| Standard for sufficiency of property description in instruments between parties | Bank: courts may look to instrument and public records; minor defects are cured if property can be identified | Salams: description must be specific enough on face to create a valid lien | Court: Adopted liberal rule — instrument may be aided by reference to public records and other attachments; description sufficient if parties and property can be identified |
| Burden when description could match multiple parcels | Bank: description and recording data point to single public-records entry | Salams: ambiguity could leave open multiple-parcel possibility | Court: Possibility that more than one parcel matches description does not invalidate instrument; burden on defendant to prove multiplicity |
Key Cases Cited
- Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So. 3d 562 (Fla. 4th DCA) (standards for reviewing involuntary dismissal in foreclosure)
- Liberty Home Equity Solutions, Inc. v. Raulston, 206 So. 3d 58 (Fla. 4th DCA) (elements to establish prima facie foreclosure case)
- Heartwood 2, LLC v. Dori, 208 So. 3d 817 (Fla. 3d DCA) (mortgage must contain sufficient description to identify property encumbered)
- Mendelson v. Great Western Bank, F.S.B., 712 So. 2d 1194 (Fla. 2d DCA) (property description may be aided by public records; surveyor must be able to locate land by instrument and references)