Benzrent 1 v. Wilmington Savings Fund Society
273 So. 3d 107
| Fla. Dist. Ct. App. | 2019Background
- Benzrent purchased a condominium in 2014 subject to an existing mortgage and note but was not a party to, nor had it assumed, the loan obligations.
- Wilmington (plaintiff) filed foreclosure in 2016 naming Benzrent as title owner; Benzrent answered and asserted affirmative defenses including that Wilmington lacked standing to foreclose.
- Wilmington moved to strike Benzrent’s answer under Fla. R. Civ. P. 1.140, relying on a special concurrence in Pealer to argue a subsequent title owner cannot raise the plaintiff’s lack of standing; the trial court struck Benzrent’s pleading.
- Benzrent filed an amended answer; Wilmington again moved to strike and the court upheld the strike, leading Wilmington to obtain a judicial default against Benzrent.
- A successor judge denied Benzrent’s ore tenus motion to vacate the default (invoking “law of the case”) and entered final summary judgment for foreclosure; the district court reversed, finding the pleading was wrongly struck and the default could be vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a non-party subsequent title owner may raise plaintiff’s lack of standing as an affirmative defense | Wilmington: a non-party lacks standing to assert plaintiff’s lack of standing (relying on Pealer special concurrence) | Benzrent: as subsequent title owner it may challenge plaintiff’s standing (relying on 3709 N. Flagler) | Court: Benzrent may raise the defense; trial court erred in striking the pleading |
| Whether the predecessor judge’s order striking the amended answer was binding (“law of the case”) | Wilmington: prior interlocutory rulings should stand | Benzrent: interlocutory orders may be revisited by successor judge; not law of the case | Court: Ruling was interlocutory and not immune from revision; successor judge erred relying on "law of the case" |
| Whether striking the pleading justified entering judicial default and refusing to vacate it | Wilmington: default appropriate after pleading struck | Benzrent: default improperly entered because strike was erroneous; should be vacated | Court: Default must be vacated; final summary judgment reversed |
| Proper disposition on remand | Wilmington: (asked to adjudicate sufficiency of defenses) | Benzrent: should be allowed to replead and litigate defenses | Court: Remand to vacate default and permit Benzrent to file a second amended answer; did not decide merits of defenses |
Key Cases Cited
- 3709 N. Flagler Drive Prodigy Land Trust v. Bank of America, N.A., 226 So. 3d 1040 (Fla. 4th DCA 2017) (holds subsequent title owner may challenge plaintiff’s standing to foreclose)
- Pealer v. Wilmington Trust National Ass’n, 212 So. 3d 1137 (Fla. 2d DCA 2017) (per curiam affirmance with special concurrence; concurrence has no precedential value)
- Miller v. State, 980 So. 2d 1092 (Fla. 2d DCA 2008) (concurring opinions lack precedential effect)
- Pardo v. State, 596 So. 2d 665 (Fla. 1992) (district court decisions bind trial courts absent interdistrict conflict)
- Aventura Beach Club Condo. Ass’n, Inc. v. Blaustein, 997 So. 2d 1185 (Fla. 3d DCA 2008) (interlocutory orders may be revisited before final judgment)