LLANO FINANCING GROUP LLC v. ROGER YESPY AND GULFSTREAM APPRAISAL CO.
228 So. 3d 108
| Fla. Dist. Ct. App. | 2017Background
- A claim servicer (assignee of subservicer assignments) sued a property appraiser for professional negligence and negligent supply of false information after a foreclosed property sold for much less than its appraisal.
- Original lender ordered an appraisal naming the mortgage broker as lender/client and stating the report was for use in mortgage finance transactions; it also said “NO OTHER INTENDED USERS HAVE BEEN IDENTIFIED BY THE APPRAISER.”
- The mortgage and note were transferred to Impac, which entered a servicing/master servicing arrangement; Impac then entered a subservicing agreement with Savant.
- Savant allegedly assigned to the claim servicer “all of its legal rights to assert negligence claims against real estate appraisers”; however, the original assignment to Impac did not expressly transfer any tort/negligence claims.
- The trial court dismissed the amended complaint with prejudice on statute-of-limitations grounds for professional negligence and negligent misrepresentation; the appellate court affirmed on the alternative ground that the claim servicer lacked standing to sue the appraiser.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue appraiser for negligence | Claim servicer alleged assignments (Impac→Savant→claim servicer) and thus standing; Rule 1.120 only requires pleading standing | Complaint and attachments show no assignment by the original lender of negligence/tort claims to Impac or successors; claim servicer never in privity with appraiser | No standing: dismissal affirmed (claim servicer not assigned negligence claims; no privity) |
| Whether assignment of mortgage/note conveys tort claims | Assignment of loan/note transfers all rights to enforce loan and foreclose, which suffices to assert related claims | Assignment of note/mortgage does not automatically include preexisting tort claims unless expressly assigned | Held for defendant: mortgage/note assignment did not transfer lender’s tort claims (Ginsberg controlling logic) |
| Applicability of Restatement §552 negligent-supply theory to assignee/purchaser | Claim servicer argued it was within the limited class who could justifiably rely on the appraisal and thus could sue under §552 | Appraisal identified intended user as lender/client and limited use to mortgage finance transactions; third parties/purchasers cannot justifiably rely; Cooper and appraisal language narrow §552’s scope | Held for defendant: claim servicer not an intended user; §552 does not extend to it here |
| Statute of limitations for negligence and negligent misrepresentation | Claim servicer argued dismissal was premature and complaint could be amended | Trial court found negligence accrued at foreclosure/sale and limitations had run; court also found accrual at negligent act for §552 claim | Appellate court did not reach merits (affirmed on standing); trial court had dismissed on limitations but standing sufficed to affirm |
Key Cases Cited
- Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999) (standing/conceptual framework cited)
- Ginsberg v. Lennar Florida Holdings, Inc., 645 So. 2d 490 (Fla. 3d DCA 1994) (assignment of mortgage/note does not by itself transfer tort claims)
- Cooper v. Brakora & Assocs., Inc., 838 So. 2d 679 (Fla. 2d DCA 2003) (limits negligent-misrepresentation liability under Restatement §552 for appraisals obtained for lender financing)
- Papa John’s Int’l, Inc. v. Cosentino, 916 So. 2d 977 (Fla. 4th DCA 2005) (permitting affirmative defenses apparent on face of complaint to be considered on motion to dismiss)
- Gordon v. Kleinman, 120 So. 3d 120 (Fla. 4th DCA 2013) (standard of review for standing dismissal)