Ibis Circle, LLC and Shlomo Rasabi v. JPMorgan Chase Bank, National Association and WAMU Insurance Services, Inc.
193 So. 3d 957
| Fla. Dist. Ct. App. | 2016Background
- JPMorgan Chase (successor to WaMu) filed foreclosure against borrower 4040 Ibis Circle, LLC and Shlomo Rasabi in 2009. Borrowers answered and asserted affirmative defenses and counterclaims.
- Borrowers alleged WaMu improperly force-placed insurance, created an impound/escrow deficit (over $15,000), and misapplied borrowers’ principal and interest to pay that escrow, producing a “phantom default.”
- After Chase acquired the loan, borrowers claimed Chase increased the impound deficit by charging for taxes already paid.
- In 2014 borrowers filed an amended answer adding nine counterclaims (breach of contract, breach of implied covenant, unconscionability, FCRCPA/FCCPA/FUITPA claims, conspiracy claims, and defamation).
- The trial court granted Chase’s motion to dismiss all counterclaims with prejudice. Borrowers appealed the dismissal.
- The appellate court sua sponte addressed jurisdiction: it held some counterclaims were compulsory (no immediate appeal) and two FUITPA-based counterclaims were permissive and thus immediately appealable; it affirmed dismissal of the FUITPA claims as time-barred and dismissed the appeal as to the compulsory claims for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction over dismissal of counterclaims | Borrowers: dismissal of counterclaims is reviewable on appeal | Chase: some counterclaims relate to the foreclosure and appeal is premature | Court: dismissal of compulsory counterclaims not immediately appealable; permissive counterclaims are appealable |
| Whether counterclaims are compulsory or permissive | Borrowers: claims arise from same transaction? some claims distinct | Chase: many claims arise from same operative facts as foreclosure | Court: breach, implied covenant, unconscionability, FCRCPA, conspiracy, defamation, FCCPA = compulsory; FUITPA claims = permissive |
| Timeliness of FUITPA claims | Borrowers: alleged force-placed insurance scheme 2005–2008, claim brought 2014 | Chase: FUITPA has 4-year statute of limitations; claims exceed limitations period | Court: FUITPA claims barred by four-year statute of limitations; affirmed dismissal |
| Merits of other dismissed claims | Borrowers: alleged misapplication produced phantom default and related causes of action | Chase: moved to dismiss all claims as legally insufficient | Court: did not reach merits of compulsory claims on appeal (appeal dismissed for lack of jurisdiction) |
Key Cases Cited
- Nero v. Cont’l Country Club R.O., Inc., 979 So. 2d 263 (Fla. 5th DCA 2008) (finality standard for appellate jurisdiction)
- Welch v. Resolution Tr. Corp., 590 So. 2d 1098 (Fla. 5th DCA 1991) (definition of final order)
- S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla. 1974) (dismissal of counterclaim appealability when counterclaim is distinct and severable)
- Agriesti v. Clevetrust Realty Inv’rs, 381 So. 2d 753 (Fla. 4th DCA 1980) (permissive counterclaim appellate jurisdiction discussion)
- Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So. 2d 507 (Fla. 2d DCA 1993) (dismissed compulsory counterclaim not immediately appealable)
- Londono v. Turkey Creek, Inc., 609 So. 2d 14 (Fla. 1992) (logical-relationship test for compulsory counterclaims)
- Neil v. S. Fla. Auto Painters, Inc., 397 So. 2d 1160 (Fla. 3d DCA 1981) (same aggregate of operative facts test for compulsory counterclaims)