Ibis Circle, LLC and Shlomo Rasabi v. JPMorgan Chase Bank, National Association and WAMU Insurance Services, Inc. , 2016 Fla. App. LEXIS 6424 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
4040 IBIS CIRCLE, LLC and SHLOMO RASABI,
Appellants,
v.
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION and WAMU
INSURANCE SERVICES, INC.,
Appellees.
No. 4D14-2601
[April 27, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John J. Hoy, Judge; L.T. Case No. 50 2009 CA 019696
XXXX MB AW.
Matthew R. Simring, Cooper City, for appellants.
Kimberly S. Mello and Jonathan S. Tannen of Greenberg Traurig, P.A.,
Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Fort
Lauderdale, for appellee JPMorgan Chase Bank, National Association.
PER CURIAM.
In this foreclosure case, the defendants/counterplaintiffs appeal the
dismissal of their counterclaims. We affirm in part and dismiss in part.
JPMorgan Chase brought this foreclosure action in 2009 against 4040
Ibis Circle, LLC and Shlomo Rasabi (the “Borrowers”). The Borrowers filed
their answer, affirmative defenses, and two counterclaims for breach of
contract and defamation. The Borrowers alleged that Chase’s predecessor,
Washington Mutual Bank (“WaMu”) improperly purchased force-placed
insurance on the property and created an impound/escrow account with
a deficit exceeding $15,000 (the price of the insurance). WaMu then
allegedly misapplied the Borrowers’ principal and interest payments to pay
down the escrow account.
The Borrowers alleged that when Chase acquired the loan, it
exacerbated the problem by increasing the deficit in the impound/escrow
account for the payment of property taxes that had already been paid.
According to the Borrowers, this misallocation of principal and interest,
first by WaMu and then by Chase, created a “phantom default.”
In 2014, the Borrowers filed an amended answer, including nine
counterclaims.1 By this pleading, the Borrowers set forth additional facts
in a section entitled “Illegal Force-Placed Insurance Scheme.” The
“Scheme” is defined as:
The unconscionable above-market premiums, undisclosed
commissions, and illegal kickbacks in the nature of
reinsurance premiums and subsidized administrative
services.
Chase moved to dismiss all of the Borrowers’ counterclaims with
prejudice. After a hearing, the trial court granted the motion. While
Chase’s foreclosure claim remains pending in the circuit court, the
Borrowers brought this appeal from the dismissal of their counterclaims.
We raise sua sponte the jurisdiction of this appellate court. This court
has jurisdiction to review final orders. Fla. R. App. P. 9.030(b)(1)(A). “An
order is considered final if it ‘disposes of the cause on its merits leaving no
questions open for judicial determination except for the execution or
enforcement of the decree if necessary.’” Nero v. Cont’l Country Club R.O.,
Inc., 979 So. 2d 263, 266 (Fla. 5th DCA 2007) (quoting Welch v. Resolution
Tr. Corp., 590 So. 2d 1098, 1099 (Fla. 5th DCA 1991)). The order
dismissing the Borrowers’ counterclaims is not considered a “final order”
because it does not dispose of the cause on the merits—rather, Chase’s
foreclosure claim is still pending in the trial court. S.L.T. Warehouse Co.
v. Webb, 304 So. 2d 97, 99 (Fla. 1974).
The appellate court may exercise jurisdiction where the trial court’s
dismissal of a counterclaim “adjudicates a distinct and severable cause of
action.” Id. at 100; accord Agriesti v. Clevetrust Realty Inv’rs, 381 So. 2d
753, 753–54 (Fla. 4th DCA 1980). By definition, a permissive counterclaim
does not arise out of the transaction or occurrence that is the subject
matter of the main claim. Fla. R. Civ. P. 1.170(b). As such, if this court
finds that a counterclaim is permissive, then the partial final judgment
1 (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith and Fair
Dealing; (3) Unconscionability; (4) Violation of the Florida Civil Remedies for
Criminal Practices Act (FCRCPA); (5) Conspiracy to Violate the FCRCPA; (6)
Violation of the Florida Unfair Insurance Trade Practices Act (FUITPA); (7)
Conspiracy to Violate the FUITPA; (8) Defamation per se; and (9) Violation of the
Florida Consumer Collection Practices Act (FCCPA).
2
adjudicating the counterclaim is immediately appealable. On the other
hand, if this court finds that a dismissed counterclaim is compulsory, then
the order dismissing the counterclaim is “not appealable until a final
disposition of the original cause has [been] obtained on the merits.”
Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So. 2d
507, 509 (Fla. 2d DCA 1993).
Compulsory counterclaims bear a “logical relationship” to the plaintiff’s
claims in that they arise out of the “same aggregate of operative facts as
the original claim.” Londono v. Turkey Creek, Inc., 609 So. 2d 14, 20 (Fla.
1992) (quoting Neil v. S. Fla. Auto Painters, Inc., 397 So. 2d 1160, 1164
(Fla. 3d DCA 1981)). We find that the Borrowers’ counterclaims for Breach
of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing,
Unconscionability, Violation of the FCRCPA, Conspiracy to Violate the
FCRCPA, Defamation per se, and Violation of the FCCPA are compulsory.
As pled, each of these counterclaims bears a logical relationship to the
foreclosure claim.2 Having found these counterclaims compulsory, we
dismiss the appeal as to these counterclaims without prejudice for lack of
jurisdiction.
We find that the Borrowers’ two counterclaims based on violation of the
Florida Unfair Insurance Trade Practices Act are permissive. These claims
are based on allegations that Chase’s predecessor participated in a force-
placed insurance scheme. The “purchase of insurance at above-market
premiums, undisclosed commissions, and illegal kickbacks” constitutes
separate and distinct activity that does not arise out of the “same aggregate
of operative facts” as the acts giving rise to the foreclosure. Id. (quoting
Neil, 397 So. 2d at 1164). We find that the order dismissing the Borrowers’
permissive counterclaims was a final order adjudicating distinct and
severable causes of action. As such, this court has jurisdiction to reach
the merits of the dismissal of these permissive counterclaims.
On the merits, we hold the trial court properly dismissed the Borrowers’
FUITPA counterclaims because they were not timely filed. The statute of
limitations to bring an action under the FUITPA is four years. § 95.11(3)(f),
Fla. Stat. (2014). The facts giving rise to the Borrowers’ FUITPA claims
occurred between 2005 and 2008, and the Borrowers did not plead their
FUITPA claims until 2014. Thus the four-year statute of limitations bars
the Borrowers’ FUITPA counterclaims as a matter of law. We affirm the
2 Each of these claims are related to the mortgage, creation of the
impound/escrow account, and the diverting of the Borrowers’ principal and
interest payments into that account which allegedly resulted in the phantom
default and improper acceleration of the debt.
3
trial court’s dismissal of the Borrowers’ FUITPA counterclaims as barred
by the statute of limitations.
Dismissed in part, Affirmed in part, and Remanded.
STEVENSON, MAY and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4