In a recent opinion issued by Florida’s Third District Court of Appeal, the court affirmed that, where a motion to substitute party plaintiff is granted but the complaint is not subsequently amended to reflect the substitution, the order of substitution was sufficient to confer the status of party Plaintiff. See Van Tran v. Deutsche Bank Nat’l Trust Co., 2020 Fla. App. LEXIS 11323 (Fla. 3d DCA Aug 12, 2020).
In Van Tran, OneWest Bank, FSB initiated a foreclosure action against Van Tran in 2009; Van Tran did not file a responsive pleading and default was entered against him. Thereafter, OneWest filed a motion to substitute Deutsche Bank as party plaintiff in the action. The circuit court granted the motion; however, no amended complaint reflecting was filed. Van Tran moved to vacate the judgment seven years later, asserting that judgment was void due to Plaintiff's failure to amend.
The Court reasoned that while the complaint was not formally amended to reflect the substitution, the substitution order and final judgment, served on all parties conferred the status of party plaintiff on Deutsche Bank.
In a recent slip opinion, Florida’s Second District Court of Appeal reaffirmed that a mortgagee’s default notice requirement can be satisfied utilizing third party vendor. See U.S. Bank N.A. v. Charles W. Engle, 2D18-3384 (Fla. 2nd DCA 2020).
In Engle, Nationstar testified that it created the Notice of Default and conveyed an image of that notice to a third party vendor. The third party vendor then provided Nationstar with confirmation that the letter was sent, as evidenced by additionally provided collection notes. The third party vendor then input the tracking information on a website so that Nationstar could monitor it. Citing previous case law, the Court held that the Plaintiff had presented sufficient evidence to preclude involuntary dismissal.
Hot off the presses! Florida Governor Ron DeSantis signed Executive Order 20-180 last night. While most news organizations are focusing on the extension of the foreclosure and eviction moratoriums until September 1st, servicers and investors should note that the language covering which cases are affected by the moratorium, and at what stage, has changed dramatically. While the initial executive order, EO 20-94, suspended and tolled "any statute providing for a mortgage foreclosure cause of action," the new Order has revised that language to state that the order suspends and tolls "any statute providing for final action at the conclusion of a mortgage foreclosure proceeding." The moratorium was further limited to cases were the proceeding arose from non-payment of a mortgage by a single-family mortgagor.
My interpretation is that the new executive order prohibits only the pursuit of writs of possession on mortgagor-occupied properties. The language in the Order reminds me of this quote in Ober v. Town of Lauderdale-by-the-Sea, 218 So. 3d 952, 954 (Fla. 4th DCA 2017): “In a foreclosure lawsuit, the final judgment is not the end of the road, but merely a way station to the final result.”