Vidal v. Liquidation Properties, Inc.
104 So. 3d 1274
Fla. Dist. Ct. App.2013Background
- Vidals challenged foreclosure on a note and mortgage after Liquidation filed for foreclosure and sought a lost-note/mortgage reestablishment.
- Trial court granted summary judgment for standing and foreclosed; Vidals raised multiple affirmative defenses, including standing, fraud, and Truth in Lending Act (TILA) violations.
- Assignment history: Liquidation produced the original note, an undated allonge endorsed in blank, and a mortgage assignment dated Feb. 6, 2009 with an effective date of Jan. 15, 2009.
- Language in the Assignment of Mortgage suggested potential retroactive transfer; two inferences arise about when ownership transferred, creating material fact questions.
- Court held the standing issue was not foreclosed as a matter of law due to unresolved transfer timing; addressed TILA, fraud defenses, and remanded the case for further proceedings.
- Decision: reverse on standing and on the rejection of the TILA defenses; affirm other issues; remand for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose required as of filing date | Liquidation had standing via original note, allonge, and assignment | Vidals show assignment/posting failed to prove pre-filing transfer | Standing material facts disputed; remand for resolution |
| TILA violations and limitations defense | Liquidation argues statute of limitations bars TILA claims | Vidals' recoupment/offset defenses not barred by TILA statute; properly raised defenses survive | Recoupment/offset defenses not time-barred; remand for merits on defenses |
| Fraud defenses viability | Lender inflated income and misrepresented loan terms | Vidals knowingly signed documents; cannot rely on fraud to defeat foreclosure | Fraud defenses deemed legally insufficient; reversed on standing but fraud defenses fail; remanded for proceedings |
Key Cases Cited
- McLean v. JP Morgan Chase Bank N.A., 79 So.3d 170 (Fla. 4th DCA 2012) (standing to foreclose must be proven as of filing; endorsements/affidavits can establish standing)
- Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010) (owner of note entitled to foreclose; plaintiff must prove ownership at filing)
- Azanza v. Private Funding Group, 24 So.3d 586 (Fla. 4th DCA 2009) (waiver of objection to proof of standing and related issues may preclude reversal)
- Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., Inc., 981 So.2d 654 (Fla. 4th DCA 2008) (language in assignment can create inferences requiring proof of meaning)
- Dove v. McCormick, 698 So.2d 585 (Fla. 5th DCA 1997) (three-year SOL for rescission under TILA; one-year for recoupment; governs timing)
- Hillcrest Pac. Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA 1999) (fraud claims cannot be based on inconsistencies covered by written contract)
- Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105 (Fla. 4th DCA 2010) (failure to rebut properly raised affirmative defense precludes summary judgment)