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FELTUS v. US Bank N.A. | FL 2DCA “Affidavit of Indebtedness Fail, Genuine Issue of Material Fact of Who Owned or Held the Note”

FELTUS v. US Bank N.A. | FL 2DCA “Affidavit of Indebtedness Fail, Genuine Issue of Material Fact of Who Owned or Held the Note”


JULIA FELTUS, Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION, as TRUSTEE of MASTR ADJUSTABLE RATE MORTGAGES TRUST 2007-3, Appellee.

 

Case No. 2D10-3727.
District Court of Appeal of Florida, Second District. 

Opinion filed October 19, 2011.
Jacqulyn Mack of The Mack Law Firm, Englewood, for Appellant.Roy A. Diaz and Diana B. Matson of Smith, Hiatt & Diaz, P.A., Ft. Lauderdale for Appellee.

WHATLEY, Judge.

Julia Feltus appeals a final summary judgment of foreclosure in favor of U.S. Bank National Association, as Trustee of Mastr Adjustable Rate Mortgages Trust 2007-3 (U.S. Bank or the Bank). We reverse because material issues of fact as to which entity holding the promissory note executed by Feltus existed at the time the trial court entered summary judgment.

On August 24, 2009, U.S. Bank filed an unverified complaint seeking to reestablish a lost promissory note and to foreclose the mortgage on Feltus’s home. U.S. Bank attached to the complaint a copy of the note and the mortgage, but both documents showed the lender to be Countrywide Bank, N.A. In the count to reestablish the note pursuant to section 673.3091, Florida Statutes (2009), U.S. Bank alleged that the note was executed by Feltus on February 16, 2007; U.S. Bank is the owner and holder of the note; the original note has been lost and is not in U.S. Bank’s custody or control; the note was continuously in the possession and control of the Bank’s assignor and predecessor from the date of execution until the loss, at which time the assignor and predecessor was entitled to enforce the note; and the note has not been paid or otherwise satisfied, assigned, or transferred, or lawfully seized. Notably, these allegations did not include an allegation that Countrywide had assigned the note to U.S. Bank.

After Feltus filed a motion to dismiss alleging that U.S. Bank had failed to establish that it owned or held the subject note, on November 16, 2009, U.S. Bank filed an affidavit of indebtedness executed by Kathy Repka, an assistant secretary of BAC Home Loan Servicing, L.P., f/k/a Countrywide Home Loan Servicing, L.P. Repka asserted that her affidavit was based on the loan payment records of the servicing agent and her familiarity with those records. After she explained that the purpose of the records was “to monitor and maintain the account relating to a note and mortgage that are the subject matter of the pending case,” Repka asserted that U.S. Bank owns and holds the note described in its complaint. Then on November 18, 2009, U.S. Bank filed another copy of the note as a supplemental exhibit to its complaint. In contrast to the copy attached to the complaint that contained no endorsements, this copy contained two endorsements that were side by side on the last page—the first stated “PAY TO THE ORDER OF: COUNTRYWIDE HOME LOANS, INC. WITHOUT RECOURSE COUNTRYWIDE BANK, N.A.” and the second stated “PAY TO THE ORDER OF: __________ WITHOUT RECOURSE COUNTRYWIDE HOME LOANS, INC.” Notwithstanding this filing, eight days after Feltus filed her answer and affirmative defenses, on May 26, 2010, U.S. Bank filed a motion for summary final judgment alleging that it “owns and holds a promissory note and mortgage” and that the original note had been lost and is not in U.S. Bank’s control. But on June 4, 2010, the Bank filed a reply to Feltus’s affirmative defenses in which it asserted that it is now in possession of the original note, which it attached and which is the same note it filed on November 18, 2009. The Bank further asserted that because the note is endorsed in blank and it is in possession of the note, it is the bearer and entitled to foreclose the mortgage. See Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010) (noting that pursuant to Uniform Commercial Code, negotiation of note by transfer of possession with blank endorsement makes transferee the holder of the note entitled to enforce it).

We view U.S. Bank’s filing of a copy of the note that it later asserted was the original note as a supplemental exhibit to its complaint to reestablish a lost note as an attempt to amend its complaint in violation of Florida Rule of Civil Procedure 1.190(a). U.S. Bank did not seek leave of court or the consent of Feltus to amend its complaint. A pleading filed in violation of rule 1.190(a) is a nullity, and the controversy should be determined based on the properly filed pleadings. Warner-Lambert Co. v. Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983).

Before a court may grant summary judgment, the pleadings, depositions, answers to interrogatories, admissions, and any affidavits must “`conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So. 3d 1211, 1213 (Fla. 4th DCA 2009) (quoting Fini v. Glascoe, 936 So. 2d 52, 54 (Fla. 4th DCA 2006)). The party moving for summary judgment bears the burden to show conclusively that there is a complete absence of any genuine issue of material fact. Id.

The properly filed pleadings before the court when it heard the Bank’s motion for summary judgment were a complaint seeking to reestablish a lost note, Feltus’s answer and affirmative defenses alleging that the note attached to the complaint contradicts the allegation of the complaint that U.S. Bank is the owner of the note, a motion for summary judgment alleging a lost note of which U.S. Bank is the owner, an affidavit of indebtedness alleging that U.S. Bank was the owner and holder of the note described in the complaint, and U.S. Bank’s reply to Feltus’s affirmative defenses asserting that it was now in possession of the original note, which it attached to the reply. But the note attached to the complaint showed the lender to be Countrywide Bank, N.A. And the complaint failed to allege that “[t]he person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.” § 673.3091(a). In addition, the affidavit of indebtedness revealed no basis for the affiant’s assertion that U.S. Bank owns and holds the note. The affiant is an assistant secretary for the alleged servicing agent of the Bank, and she asserted that she had personal knowledge of the loan based on the loan payment records. She did not assert any personal knowledge of how U.S. Bank would have come to own or hold the note. See Shafran v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001) (“When affidavits are filed to establish the factual basis of the motion [for summary judgment], they must be made on personal knowledge, demonstrate the affiant’s competency to testify, and be otherwise admissible in evidence.”).

The trial court erred in entering final summary judgment of foreclosure because the documents before it created a genuine issue of material fact of who owned or held the note. Accordingly, we reverse and remand for further proceedings.

CRENSHAW, J., Concurs.

CASANUEVA, J., Concurs with opinion.

CASANUEVA, Judge, Concurring.

I fully concur with the majority opinion and write only to point out further failings in the affidavit of indebtedness.

The affidavit of indebtedness was the sole affidavit offered in support of U.S. Bank’s motion for summary judgment. The affiant was an assistant secretary employed by the Bank’s loan servicing agent. She set forth, under oath, that her direct personal knowledge was restricted to that learned in maintaining the loan payment records of the servicing agent. And, as the majority opinion points out, she did not assert any personal knowledge of how U.S. Bank had come to own or hold the note. Beyond this deficiency noted in the majority opinion, the affiant also stated that U.S. Bank had accelerated the entire principal balance due and had “retained Smith, Hiatt & Diaz, P.A. to represent it in this matter.” Because the affiant’s competency was based only on her review of the loan payment records, she was not competent to aver as to actions of the Bank in accelerating the loan or hiring counsel, and her averments are hearsay and inadmissible at trial. The Bank could have easily established the facts of acceleration of the note and hiring of counsel with affidavits from the Bank’s official in charge of foreclosing this loan and/or the Bank’s counsel to establish the fact of hiring and of the fee arrangement. Such bank official or counsel would have direct personal knowledge, would be competent, and would have presented evidence admissible at trial.

The affidavit the Bank submitted fell woefully short of these requirements and could not aid the Bank in any way to support its motion for summary judgment of foreclosure.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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FL 2nd DCA Reverses SJ, “Genuine Issues of Material FACT, Purported Assignment of Mortgage” SANDORO v. HSBC BANK

FL 2nd DCA Reverses SJ, “Genuine Issues of Material FACT, Purported Assignment of Mortgage” SANDORO v. HSBC BANK


DAVID J. SANDORO, Appellant,

v.

HSBC BANK, USA NATIONAL ASSOCIATION, AS TRUSTEE FOR WELLS FARGO HOME EQUITY ASSET BACKED CERTIFICATES, SERIES 2005-4, Appellee.

Opinion filed March 9, 2011.

Appeal from the Circuit Court for Manatee
County; Edward Nicholas, Judge.

John P. Fleck, Jr., Bradenton, for Appellant.

Joshua D. Moore of Carlton Fields, P.A.,
Orlando, and Michael K. Winston and Dean
A. Morande of Carlton Fields, P.A., West
Palm Beach, for Appellee.

KHOUZAM, Judge.

Excerpt:

We review the summary judgment de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment `if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Id. (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff “must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010).

Here, the record reflected genuine issues of material fact regarding the purported assignment of mortgage and whether Mr. Sandoro had been provided with a notice of acceleration. Therefore, the trial court erred in granting HSBC Bank’s motion for summary judgment and we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

WHATLEY and KELLY, JJ., Concur.

Continue below…

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FL 2nd DCA Appeals Court Reverses Attorney Fees “NO STANDING, WRONG ASSOCIATION, IMPROPER FILINGS” Against WELLS FARGO and David J. Stern, P.A.

FL 2nd DCA Appeals Court Reverses Attorney Fees “NO STANDING, WRONG ASSOCIATION, IMPROPER FILINGS” Against WELLS FARGO and David J. Stern, P.A.


SOUTH BAY LAKES HOMEOWNERS ASSOCIATION, INC., Appellant,
v.
WELLS FARGO BANK, N.A., Appellee.

Case No. 2D10-148.

District Court of Appeal of Florida, Second District.

Opinion filed February 18, 2011. Leslie M. Conklin, Clearwater, for Appellant.

Forrest G. McSurdy of Law Office of David J. Stern, P.A., Plantation, for Appellee.

ALTENBERND, Judge.

South Bay Lakes Homeowners Association, Inc., appeals an order denying its motion for attorney’s fees pursuant to section 57.105(1), Florida Statutes (2008). We conclude that the trial court abused its discretion in denying fees under the unusual circumstances of this case. Accordingly, we reverse and remand for an award of fees to be paid in equal amounts by Wells Fargo Bank, N.A., and its attorneys.

Kosta and Ljubica Jankovski obtained a loan, secured by a mortgage, to purchase a home in Hillsborough County in 2005. The documents in our record show the lender as Beazer Mortgage Corporation. Allegedly, the Jankovskis defaulted on the loan.

In March 2009, the Law Offices of David J. Stern, P.A., filed a mortgage foreclosure action on behalf of Wells Fargo, naming the Jankovskis and South Bay Lakes Homeowners Association as parties. The complaint alleged that Wells Fargo filed the action “by virtue of an assignment to be recorded.” As is common in recent foreclosure actions, the complaint contained a second count to enforce a lost, destroyed, or stolen promissory note.

The complaint itself does not contain a legal description of the property on which Wells Fargo sought to foreclose. It alleges a recorded mortgage on January 18, 2006, and a modification on July 13, 2006. The mortgage identified the relevant property as Lot 6, Block 7, Valhalla Phase 3-4. The modification changed the description to Lot 60, Block 2, South Bay Lakes, Unit #2. The notice of lis pendens that Wells Fargo recorded when it commenced this action identified the property it sought to foreclose as the original description and not the modified description. The property described in the modification is within South Bay Lakes Homeowners Association. However, the property described in the lis pendens and the original mortgage is not within the association.

The Jankovskis did not file a formal answer. Instead, they submitted a letter claiming that they disputed the amount owed and were trying to resolve the matter with America’s Servicing Company.

South Bay Lakes Homeowners Association filed an answer disputing that Wells Fargo had standing to bring the action, raising other defenses, and pointing out the confusion associated with the legal description. It also served the attorneys for Wells Fargo with requests for admission, asking the bank to admit that it did not have an assignment of the mortgage in its possession or recorded in Hillsborough County. One of the requests for an admission asked Wells Fargo to admit that it had no documentary evidence to show that it was an equitable owner of the note and mortgage. Wells Fargo did not respond to the requests for admission.

In May 2009, South Bay Lakes Homeowners Association filed a motion for summary judgment based on the admissions. At the same time, the attorney for the association filed an affidavit explaining that he had searched the public records and had not found an assignment of the mortgage. He also explained that the description on the lis pendens was not the encumbered property. Finally, the association served, but did not file, a motion for attorney’s fees pursuant to section 57.105 in order to give the bank an opportunity to resolve the matter within the statutory twenty-one-day period. The bank took no action.

On July 29, 2009, the attorney for the association attended the hearing on its motion for summary judgment. Wells Fargo made no appearance. Based on the admissions and the affidavit, the trial court entered a final judgment dismissing the entire action without leave to amend.

Thereafter, the association filed its motion for attorney’s fees and scheduled a hearing for November 2009. Wells Fargo sent a local attorney, who had not reviewed the file, to the hearing. He had “no idea” whether the legal description in the complaint had been inaccurate. The trial court denied the motion for fees, reasoning that some lender was entitled to file an action to foreclose on the parcel described in the modification and owned by the Jankovskis and that the action was, therefore, not one entitling the association to attorney’s fees. The association has appealed that order.

The issue in this case is not whether the owners would have been entitled to attorney’s fees. Instead, the issue is the association’s entitlement to fees. It is noteworthy, however, that the owners were the prevailing party in this action by virtue of the efforts of the association’s attorney. By contract, the owners would have been entitled to recover fees in this case if the prevailing attorney had been their attorney.

In this case, it is undisputed that Wells Fargo filed a foreclosure action without an assignment or other legal basis to file the action. Nothing in the record suggests that it or its attorneys took any steps to confirm that Wells Fargo had the legal right to file this action. It has relied on the association’s attorney to perform the legal research and public records examination that its own attorney should have performed before it filed the action.

We emphasize that a failure to respond to a request for admissions is not automatically grounds for attorney’s fees. In this case, however, the bank never attempted to explain why it admitted that it lacked standing, and there is no reason to believe that it had standing to bring the lawsuit. The bank also never sought to be relieved from its admissions and did not seek rehearing of the judgment that the trial court entered at a hearing it declined to attend.

At oral argument, the bank’s attorney tried to justify this improper filing due to the vast volume of foreclosure cases in the judicial system. While this court is well aware of the volume of these cases, that circumstance is not a matter that relieves the bank and its attorneys of their obligation to file pleadings that are adequately supported by a reasonable investigation prior to suit. If anything, the volume of these cases and the obvious detrimental effect that such volume has upon the legal system should be a factor requiring attorneys who file the actions to engage in a higher degree of professionalism.[1]

Section 57.105 entitles a party to attorney’s fees if the losing party, or the losing party’s attorney, knew or should have known that a claim was not supported by the material facts necessary to establish the claim when the party initially presented the claim to the court or at any time before trial. At a minimum, the association established a prima facie case that the bank or its attorneys knew or should have known that the bank had no standing to bring this lawsuit before the association served its motion for attorney’s fees. See, e.g., Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010) (“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.”); Bank of New York v. Williams, 979 So. 2d 347, 348 (Fla. 1st DCA 2008) (awarding the defendant attorney’s fees after dismissing a residential foreclosure complaint because the mortgagor failed to prove it owned the note and mortgage). If the bank or its attorneys had any evidence to refute this claim, they did not present that evidence at the hearing on the motion for attorney’s fees. The undisputed facts at the hearing established that Wells Fargo was required to take a voluntary dismissal of this action or some other appropriate action during the allotted twenty-one days and that it had no right to compel the association to proceed to judgment on the motion for summary judgment.

Although the trial court has discretion in awarding fees under section 57.105, we conclude that the trial court abused its discretion when it declined to award fees in these circumstances.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

[1] At oral argument, the bank’s attorney claimed for the first time that the association’s attorney had not served the requests for admissions on the bank’s law firm and that the trial court had not properly served the judgment on the law firm. These unsworn allegations more than a year after the entry of the final judgment are outside the record and otherwise entirely improper.

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2nd DCA- SMACKDOWN! Florida’s Court DENIES BAC Petition for Writ!

2nd DCA- SMACKDOWN! Florida’s Court DENIES BAC Petition for Writ!


via: Matt Weidner

Florida’s District Court of Appeal refuses to cave in to the banks and their games….more later…this is HUGE victory for consumers and for the Rule of Law….Justice Prevails in Florida!

[…]

GREAT JOB TO THE COURT AND TO GREG CLARK!

StentzPetWritCert-1

StentzMtnJudNotice

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FL APPEALS 2nd DCA “Unsupportable Claim, Lost Note Affidavit” COUNTRY PLACE COMM v. JPMORGAN

FL APPEALS 2nd DCA “Unsupportable Claim, Lost Note Affidavit” COUNTRY PLACE COMM v. JPMORGAN


COUNTRY PLACE COMMUNITY
ASSOCIATION, INC.,

v.

J.P. MORGAN MORTGAGE
ACQUISITION CORP.,

Opinion filed December 29, 2010.

Appeal from the Circuit Court for
Hillsborough County; William P. Levens,
Judge.

Leslie M. Conklin, Clearwater, for
Appellant.

No appearance for Appellee.

WALLACE, Judge.

EXCERPTS:

The lender named in the copy of the note and mortgage attached to the
complaint was First Franklin Financial Corporation. The mortgage designated Mortgage
Electronic Registration Systems, Inc., as the mortgagee. J.P. Morgan did not attach to
its complaint any evidence of an assignment of either the note or the mortgage in its
favor. When J.P. Morgan filed the action, no assignment of the mortgage in its favor
had been recorded in the public records of Hillsborough County.

<SNIP>

2The note had apparently been endorsed in blank. Oddly, J.P. Morgan
had filed an “Affidavit of Lost Original Instruments” after the entry of the adverse
summary judgment and about seven weeks before the hearing on Country Place’s
motion for attorney’s fees. In the affidavit, J.P. Morgan’s representative swore that the
original note and mortgage “have been lost or misplaced and cannot be located by
Plaintiff. Plaintiff has caused an extensive search of Plaintiff’s records and said Note
and Mortgage cannot be found.”

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FORECLOSURE EX PARTE REVERSED…Not Appropriate

FORECLOSURE EX PARTE REVERSED…Not Appropriate


DeSILVA v. FIRST COMMUNITY BANK OF AMERICA

JOHN R. DeSILVA, Appellant,
v.
FIRST COMMUNITY BANK OF AMERICA, a Federal Stock Savings Bank, Appellee.

Case No. 2D10-307.

District Court of Appeal of Florida, Second District.

Opinion filed August 4, 2010.

Matthew J. Meyer and Marc Matthews of Ansa Assuncao, LLP, Tampa, for Appellant.

Karen E. Maller of Powell Carney Maller Ramsay & Grove, P.A., St. Petersburg, for Appellee.

VILLANTI, Judge.

John R. DeSilva appeals the trial court’s nonfinal order appointing, without notice or a hearing, a receiver for certain real estate involved in a foreclosure action. He argues the trial court erred by not providing notice and an opportunity to be heard before entry of the order when First Community Bank of America failed to establish that immediate appointment of a receiver without notice or a hearing was necessary. We agree and, therefore, reverse and remand with directions.

This case arose in the context of a mortgage foreclosure of a single-family, nonhomestead residence located in St. Pete Beach. The Bank filed a verified complaint for foreclosure, along with an unverified motion to appoint a receiver on an expedited basis. These documents were served on DeSilva’s attorney on December 29, 2009. Count IV of the complaint sought appointment of a receiver, alleging that: (1) DeSilva “[did] not have the financial capability of maintaining the property which is in a residential community and requires maintenance and upkeep”; (2) his “inability to maintain the property will result in the possibility of complaints from the neighboring residential homeowners as well as code violations from the City and County for failure to maintain the property”; (3) DeSilva had been approached by individuals interested in purchasing the property and the Bank wanted a receiver to take over any sales negotiations and execute any documents necessary to complete the sale of the property; and (4) expedited appointment of a receiver was necessary “to see that the property is protected from waste which includes both the maintenance issues, as well as the capability of selling the property at what is deemed to be a reasonable financial arrangement with interested buyers.”

The Bank’s unverified motion for expedited appointment of a receiver made similar allegations: (1) the Bank wanted a receiver appointed to deal with unidentified potential buyers who were hesitant to buy the property because of the pending foreclosure action; (2) a receiver was necessary to oversee the property’s maintenance, to avoid complaints from neighbors, and to avoid possible code violations; and (3) the loan documents provided for appointment of a receiver in the event of default. While the motion generally asserted that appointment of a receiver is appropriate when the value of the property is insufficient to cover the debt at issue, neither the Bank’s motion nor its complaint affirmatively asserted that the actual value of the property was insufficient to cover the debt, and the record before us otherwise contains no evidence that this was the case. Without notice or hearing on the motion, on January 11, 2010, the circuit court entered an order appointing a receiver. Here, this was error.

The notice provisions of Florida Rule of Civil Procedure 1.610 clearly apply to an application for receivership. See Fla. R. Civ. P. 1.620(a) (“The provisions of rule 1.610 as to notice shall apply to applications for the appointment of receivers.”); Phillips v. Greene, 994 So. 2d 371, 372 (Fla. 3d DCA 2008) (reversing ex parte receivership order which did not comply with rule 1.610). Ordinarily, a hearing is required before appointment of a receiver. Edenfield v. Crisp, 186 So. 2d 545, 548 (Fla. 2d DCA 1966); Phillips, 994 So. 2d at 373. Pursuant to rule 1.610, a receiver can be appointed without notice or a hearing if: (1) “it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition”; (2) “the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required”; and (3) the trial court’s order “define[s] the injury, state[s] findings by the court why the injury may be irreparable, and give[s] the reasons why the order was granted without notice if notice was not given.” See Fla. R. Civ. P. 1.610(a)(1)-(2) (emphasis added); Phillips, 994 So. 2d at 373. None of these elements were established by the pleadings in this case.

First, we note that the loan documents do contain a provision for appointment of a receiver as a matter of right and without notice if the Bank instituted foreclosure proceedings. While mortgage agreements often contain provisions whereby the borrower in a mortgage contract consents to the appointment of a receiver in the event of default, the appointment of a receiver is still, by case law, not a matter of right even when the mortgage documents provide for such appointment. See Carolina Portland Cement Co. v. Baumgartner, 128 So. 241, 249 (Fla. 1930) (“[T]he mere fact that the mortgage pledges the rents and profits, and consents in advance to the appointment of a receiver upon default or breach of conditions, does not mean that upon such a showing alone a court of equity should appoint a receiver as a matter of course.”); Seasons P’ship I v. Kraus-Anderson, Inc., 700 So. 2d 60, 61 (Fla. 2d DCA 1997) (stating that appointment of a receiver is not a matter of right even if the mortgage so provides). Therefore, while the parties’ agreement to the appointment of a receiver is considered in determining whether to grant an ex parte receivership, it alone is not dispositive and the provisions of rule 1.610 are not thereby bypassed.

“The appointment of a receiver . . . should be approached with caution and circumspection.” Edenfield, 186 So. 2d at 548. The party seeking appointment of a receiver without a hearing must, as a condition precedent, establish an urgent need for dispensing with notice and a hearing. See Fla. R. Civ. P. 1.610(a)(1)(A); Dixie Music Co. v. Pike, 185 So. 441, 447 (Fla. 1938) (“The appointment of a receiver without notice should not be made except upon . . . showing that the injury will be done if an immediate remedy is not afforded. This power should be exercised only in cases of the greatest emergency, demanding the immediate interference of the court for the prevention or [sic] irreparable injury[.]”) (internal citation omitted)).

The requesting party must set forth, in sworn form and with sufficient particularity, specific facts and circumstances reflecting that delay in appointing the receiver will result in irreparable injury to the property, or that giving notice itself will precipitate such injury to the property. See Fla. R. Civ. P. 1.610(a)(1)(A); Dixie Music Co., 185 So. at 446 (“To justify granting an injunction ex parte, without notice, the allegations of the sworn bill or the accompanying affidavit must state facts showing how and why the giving of notice will accelerate or precipitate the injury[.]”); Martorano v. Spicola, 148 So. 585, 586 (Fla. 1933) (“[N]o order for the appointment of a receiver shall be granted without such notice, unless it is manifest . . . from the sworn allegations of the bill, or affidavit . . . that the injury apprehended will be done if the immediate remedy of a receivership is not afforded.”).

Thus, a receivership might be appropriate without notice and a hearing if the property is at immediate risk of being diverted, dissipated, destroyed, allowed to deteriorate, or wasted. See Cassara v. Wofford, 28 So. 2d 904, 905 (Fla. 1947) (quashing ex parte receivership because it was not apparent that giving notice of intent to appoint receiver would result in immediate injury); Dixie Music Co., 185 So. at 447 (approving ex parte receivership where defendant could leave the state with the property); Martorano, 148 So. 2d at 586 (reversing ex parte receivership order based solely on mortgage language allowing appointment of a receiver without notice); Carolina Portland Cement Co., 128 So. at 244 (“Land cannot run away, and buildings may be kept insured. Hence there is generally good reason for denying a receiver of mere real estate unless waste is being committed, or there be insolvency of the mortgagor and inadequacy of the property as security.”); Edenfield, 186 So. 2d at 549 (affirming receivership based on allegations that property and assets had been diverted); Polycoat Corp. v. City Nat’l Bank of Miami, 327 So. 2d 126, 127 (Fla. 4th DCA 1976) (reversing ex parte receivership because there were no “extreme circumstances of irreparable damage”).

Based on the principles outlined above, an ex parte receivership was not appropriate in this case. The Bank did not establish that an ex parte receivership was necessary to avoid immediate irreparable harm to the mortgaged property, or that giving notice and holding a hearing would accelerate or precipitate any injury. It simply asserted, in conclusory fashion, that DeSilva did not have the financial capability to maintain the property and that he might violate city and county codes and might get complaints from neighbors. At most, the verified complaint merely asserted many truisms common to foreclosure actions rooted on nonpayment: that the mortgagor who was in default may not pay maintenance and upkeep the property. This was insufficient to obtain an ex parte receivership. Even where a hearing has been held before appointment of a receiver, courts have rejected conclusory allegations of waste and destruction of property. See, e.g., Atco Constr. & Dev. Corp. v. Beneficial Sav. Bank, F.S.B., 523 So. 2d 747 (Fla. 5th DCA 1988) (reversing appointment of a receiver where witness testified that she did not know the condition of the property and there was no showing of waste); see generally ANJ Future Invs., Inc. v. Alter, 756 So. 2d 153, 154 (Fla. 3d DCA 2000) (reversing appointment of receiver because party seeking receivership did not show that mortgagor was wasting the property or subjecting it to serious risk of loss). Therefore, something more than a generic possibility of injury must be shown before an ex parte receiver is appointed.

We also reject the Bank’s argument that it needed an ex parte receiver-ship to assist in the sale of the property. A receiver is typically appointed in foreclosure proceedings to preserve the status quo, preserve the property, and collect and apply rents and profits to the payment of the mortgage. See Orlando Hyatt Assocs., Ltd. v. F.D.I.C., 629 So. 2d 975, 977 (Fla. 5th DCA 1993). Appointing a receiver ex parte to negotiate the sale of a single-family home before the foreclosure action is finalized is somewhat unorthodox because “`a mortgage merely creates a lien against the land with the title and right of possession remaining with the mortgagor/owner. Thus, in order to protect a borrower’s due process rights, the courts have determined that a mortgagee can acquire possession upon default only through judicial foreclosure[.]'” Id. (quoting In re Aloma Square, Inc., 85 B.R. 623, 625 (Bankr. M.D. Fla. 1988)); see also Carolina Portland Cement Co., 128 So. at 249 (“[T]he mortgagor’s possession must be respected until foreclosure and sale, unless meanwhile the equitable rights of the mortgagee require the interposition of a court of equity to protect the security by way of injunction or receivership.”). In this case, there were no exigent allegations warranting a receiver to sell the property before the foreclosure action was final.

The Bank also argues that an ex parte receivership was appropriate because the mortgage documents contained an assignment of rents provision which provided for appointment of a receiver in that context. However, the Bank’s motion for expedited appointment of a receiver did not raise the assignment of rents provision as a basis for appointing a receiver; it relied on the need to maintain the property and negotiate its sale. Furthermore, while count III of the verified complaint sought assignment of rents, the Bank did not present a verified allegation that any rents were actually being collected on the property and that any such rents were being dissipated, and the record before us contains no such evidence. See Carolina Portland Cement Co., 128 So. at 249 (“Where the rents . . . are expressly made a part of the security, and the mortgagor is receiving them but refusing to apply them to the mortgage debt, which he is allowing to go in default . . . a court of equity should appoint a receiver unless the mortgagor makes it clear that the real property covered by the mortgage will sell for enough to pay the debt and charges due the mortgagee and thus affords ample and entirely adequate security.”); Atco Constr. & Dev. Corp., 523 So. 2d at 750 (reversing receivership where there was no evidence that there was a tenant on the premises or that any rents were being collected). In fact, a letter in the record from the Bank’s attorneys to DeSilva on November 23, 2009, suggests that the Bank did not know if DeSilva was receiving any rents from the property. Therefore, the assignment of rents provision did not warrant an ex parte receivership. See generally Seasons P’ship I, 700 So. 2d at 62 (reversing receivership based on assignment of rents clause when there was no evidence that the mortgagor was wasting the property and there were other methods to protect the mortgagee’s interests).[ 1 ]

Finally, rule 1.610 requires the trial court’s ex parte order to define the injury, state why the injury may be irreparable, and give reasons for appointing a receiver ex parte. Fla. R. Civ. P. 1.610(a)(2). In addition to the pleading deficiencies described above, the trial court’s order here did not comply with the rule’s requirements because it contained no factual findings whatsoever. This was also error.

In conclusion, something more than the presence in the mortgage of a receivership clause must be demonstrated in order to allow an ex parte receiver; to wit, demonstration of an urgent need. In this case, the trial court abused its discretion by entering a receivership order without notice and a hearing when an urgent need was not demonstrated. The court also erred by not entering an appropriate order. Therefore, we must reverse and remand with directions to vacate the ex parte receivership. On remand, if the Bank so wishes, it must be afforded an opportunity to establish the need for a receiver at a properly noticed evidentiary hearing.

Reversed and remanded with directions.

ALTENBERND and LaROSE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

1. Section 697.07, Florida Statutes (2009), provides a simple method to enforce rent assignment clauses. See Seasons P’ship I, 700 So. 2d at 62.

This copy provided by Leagle, Inc.

Ex Parte (Latin for one party) means just that. The rest of the proceeding is for one party, the bank. They no longer have to notify you about anything involved in the case. The next time you will hear from them is right before they sell your home at auction. Then it is usually too late to do anything.

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