Trenda Kinney f/k/a Trenda Boutin and Peter Kinney v. Countrywide Home Loan Servicing, L.P.
165 So. 3d 691
| Fla. Dist. Ct. App. | 2015Background
- In 2007 the Kinneys executed a promissory note and mortgage in favor of Southstar Funding, LLC; they later defaulted.
- Countrywide Home Loans Servicing, L.P. (the Bank) filed suit asserting action on the promissory note, mortgage foreclosure, and reestablishment of note, claiming it held the original note via endorsement.
- The Bank produced the original note at some point before trial; the note bore an allonge endorsing it to the Bank.
- The Kinneys demanded a jury trial; the trial court later set a non-jury bench trial. The Kinneys moved to strike the non-jury setting but did not obtain a hearing and raised the jury demand at trial start.
- The Bank argued foreclosure is equitable (non-jury) and that the mortgage contains a broad jury-trial waiver; the court denied the Kinneys’ jury demand and conducted a bench trial.
- The court entered final judgment of foreclosure for the Bank; the Kinneys appealed, arguing entitlement to a jury trial and that the Bank could not enforce the jury-waiver because it was not the original lender.
Issues
| Issue | Plaintiff's Argument (Kinneys) | Defendant's Argument (Bank) | Held |
|---|---|---|---|
| Whether Kinneys were entitled to a jury trial on the Bank’s claim on the promissory note brought with a foreclosure action | Note action is at law so Kinneys have a right to jury trial | Note claim is part of foreclosure proceeding; deficiency remedy is equitable and tried to the court | No jury right; promissory note claim tied to foreclosure and deficiency properly tried in equity to the court |
| Whether the Bank could enforce the mortgage’s jury-trial waiver despite not being the original lender | Bank, not being original lender, cannot enforce waiver | Bank was holder of the note/mortgage by endorsement and can enforce the waiver | Bank may enforce waiver as holder of the endorsed note/mortgage |
Key Cases Cited
- Cheek v. McGowan Elec. Supply Co., 404 So. 2d 834 (Fla. 1st DCA 1981) (action on promissory note is at law and carries jury right)
- Padgett v. First Federal Sav. & Loan Ass'n of Santa Rosa County, 378 So. 2d 58 (Fla. 1st DCA 1979) (mixing legal and equitable claims does not automatically strip jury rights for issues traditionally triable by jury)
- Bradberry v. Atl. Bank of St. Augustine, 336 So. 2d 1248 (Fla. 1st DCA 1976) (deficiency claims in foreclosure historically tried as continuation of foreclosure in equity, not to a jury)
- Royal Palm Corporate Ctr. Ass'n, Ltd. v. PNC Bank, N.A., 89 So. 3d 923 (Fla. 4th DCA 2012) (foreclosure and deficiency overlap; equity courts may resolve both to avoid duplicate suits)
- Commercial Bank of Ocala v. First Nat. Bank, 87 So. 315 (Fla. 1920) (deficiency judgment is the legal remedy concomitant to foreclosure)
- Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010) (submission of original note with endorsement supports holder status and right to enforce note and mortgage)