GMAC Mortgage, LLC. v. Choengkroy
98 So. 3d 781
| Fla. Dist. Ct. App. | 2012Background
- GMAC Mortgage, LLC foreclosed as assignee; amended complaint included mortgage and note.
- Defendants failed to respond; clerk entered default on GMAC’s motion.
- Trial judge sua sponte dismissed for lack of standing, asserting mortgage not assigned until after filing on March 22, 2010.
- Court found GMAC lacked standing at filing due to late assignment.
- There was evidence of an equitable transfer prior to filing, potentially giving GMAC standing.
- Issue required evidentiary hearing; dismissal without notice or hearing implicated due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Errored to dismiss without a hearing? | GMAC had standing via equitable transfer before filing. | Standing required a timely assignment; post-filing assignment invalidates suit. | Reversed; dismissal without hearing was error; remand for hearing. |
| Did equitable transfer before filing confer standing? | Equitable transfer prior to filing vests standing even if assignment postdates filing. | Only formal assignment before filing establishes standing. | Remand for evidentiary determination of equitable transfer. |
| May a trial judge sua sponte dismiss based on affirmative defenses? | Dismissal without notice/pleading on affirmative defenses violates due process. | Court can dismiss for standing as a threshold issue. | Dismissal without hearing/due process violation; must provide notice and hear. |
Key Cases Cited
- WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680 (Fla. 4th DCA 2004) (evidentiary hearing required to resolve standing where equitable transfer alleged)
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012) (standing requires ownership of note and mortgage; show ownership to foreclose)
- Lizio v. McCullom, 36 So.3d 927 (Fla. 4th DCA 2010) (standing shown by ownership or equitable transfer prior to filing)
- Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla. 2d DCA 2010) (equitable transfer considerations discussed in standing analysis)
- Johns v. Gillian, 184 So. 140 (Fla. 1938) (delivery of note and mortgage can vest equitable title with proper consideration)
- Nagel, Nat'l City Bank v. Nagel, 95 So.3d 458 (Fla. 4th DCA 2012) (due process concerns when dismissing without notice/hearing)
- Liton Lighting v. Platinum Television Grp., Inc., 2 So.3d 366 (Fla. 4th DCA 2008) (notice and hearing required for certain dismissals)