DAYTONA BEACH — Florida's Fifth District Court of Appeal recently reversed a lower court's decision to rule against a lender in Volusia County in a foreclosure appeal.
According to the court's June 9 opinion, MDTR filed an appeal after the trial court granted a final judgment of foreclosure in favor of Deutsche Bank National Trust Company.
MDTR said the lower court was incorrect because it ruled on the case without a trial after MDTR asked for a trial for damages and security. The appeals court, however, agreed with MDTR and reversed the trial court’s decision and remanded it for further proceedings.
The legal woes started when the bank submitted a foreclosure against MDTR over a promissory note that was in default for failed payments. The note was said to be secured by a property that MDTR owned.
The bank motioned for order to show cause in hopes of a final judgment of foreclosure to be quickened based on Florida Statute 702.10, which lets the controller of a lien “request an order to show cause for the entry of final judgment in a foreclosure action.”
Under the sanction, the court has to “immediately” evaluate the request and file it “without a hearing.” The court has to decide whether to verify the complaint or dismiss it while stating the reason.
The trial court then scheduled a hearing and ordered MDTR to be present. MDTR responded days before with an affidavit that opposed the entry of a final judgment. The affidavit said that MDTR wanted to challenge the amount, denied any ownership of the property the bank wanted to foreclose on and requested that evidence be presented.
Still, the trial court went through with the final judgment of foreclosure on behalf of the bank at the end of the hearing.
The appeals court, however, used BarrNun, LLC v. Palmer Bank & Trust to reverse and remand the trial court’s decision. In that case, another appeals court had ruled that "the filming of defenses ‘constitues cause and precludes the entry of final judgment.’” The appeals court considered MDTR's case to be similar.