GMAC Mortgage, LLC v. Edward Whiddon, Holly Whiddon
164 So. 3d 97
| Fla. Dist. Ct. App. | 2015Background
- In 2008 the Whiddons executed a $142,759 promissory note and thirty-year mortgage to GMAC; payments allegedly ceased in 2010.
- GMAC filed a foreclosure action in December 2010 alleging default as of June 1, 2010; that action was dismissed in July 2012 for failure to prosecute and GMAC did not appeal.
- In March 2013 GMAC filed a second foreclosure complaint alleging the same June 1, 2010 default date.
- The trial court issued a show-cause order; GMAC filed a notice of voluntary dismissal in response and later admitted the default date allegation duplicated the 2010 case.
- The trial court struck the voluntary dismissal, sanctioned GMAC, dismissed the 2013 complaint with prejudice, ordered the mortgage and note canceled and delivered to the Whiddons, and enjoined GMAC from refiling without leave.
- The First DCA affirmed dismissal only as to claims predicated on defaults that predated the 2010 dismissal, but reversed the broader sanctions for lack of Kozel findings and because subsequent defaults may support a new foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice and extreme sanctions were proper without explicit Kozel findings | GMAC: sanctions were overbroad and court failed to make required Kozel factual findings; counsel’s mistake excusable | Whiddons: dismissal and sanctions justified by GMAC’s procedural disregard and repeated identical filings | Reversed as to broad sanctions; trial court failed to make required Kozel findings so punitive orders vacated |
| Whether claims based on the same default date as the 2010 action were barred | GMAC conceded it could not reassert the identical default date | Whiddons: res judicata/claim preclusion barred re-litigation of that default | Affirmed dismissal to the extent the pleaded default dates predated the 2010 dismissal |
| Whether cancellation of the mortgage and note and forever barring refiling was permissible | GMAC: cancelling debt and enjoining future actions was excessive and punitive | Whiddons: requested full relief to prevent further litigation and harassment | Reversed: cancellation and perpetual bar were improper without Kozel findings and are vacated |
| Whether GMAC may refile based on subsequent defaults occurring after the 2010 case | GMAC: should be permitted to refile for defaults postdating 2010 | Whiddons: argued they endured repeated litigation and sought protection from refiling | Remanded with instruction that GMAC may refile on subsequent, different defaults; trial court may consider sanctions only after proper findings |
Key Cases Cited
- Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) (sets six-factor test governing dismissal as a sanction)
- Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) (requires express Kozel findings when dismissing as a sanction)
- BAC Home Loans Servicing, L.P. v. Ellison, 141 So. 3d 1290 (Fla. 1st DCA 2014) (failure to apply Kozel requires remand)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980) (abuse of discretion standard and limits on arbitrary judicial action)
- Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004) (a prior foreclosure dismissal does not relieve borrowers of ongoing mortgage obligations; later defaults can support new foreclosures)