PNC Bank, N.A. v. Clark , 2017 Fla. App. LEXIS 721 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed January 25, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-1522
Lower Tribunal No. 13-818-K
________________
PNC Bank, N.A., etc.,
Appellant,
vs.
Jessica Clark, et al.,
Appellees.
An Appeal from the Circuit Court for Monroe County, Donald C. Evans,
Senior Circuit Court Judge.
McGlinchey Stafford, and N. Mark New, II, and William L. Grimsley
(Jacksonville); Shutts & Bowen LLP, and Patrick G. Brugger, for appellant.
Kevin Michael Hoyes (Key West), for appellee Jessica Clark.
Before WELLS, SALTER, and LOGUE, JJ.
LOGUE, J.
In this foreclosure action, after a non-jury trial, the trial court dismissed the
case for lack of standing. This was error. See, e.g., Clay Cty. Land Tr. v.
JPMorgan Chase Bank, Nat’l Ass’n, 152 So. 3d 83, 85 (Fla. 1st DCA 2014)
(“When appellee filed the foreclosure complaint, it attached a copy of the note and
an undated allonge to the note containing an endorsement in blank. This was
sufficient to establish as a matter of law that appellee had standing to bring the
foreclosure action.”).
Furthermore, the undisputed evidence indicated that (1) the borrower failed
to pay the 2011 ad valorem taxes on the property as the note required; (2) the
Monroe County Tax Collector issued a tax certificate to a third party as a result of
the unpaid taxes; (3) the bank paid off the tax certificate and paid subsequent
years’ taxes; and (4) as of the date of the filing of the foreclosure action, the
borrower still had not paid the bank the taxes and other costs the bank had
advanced or incurred in an amount no less than $4508.50, as admitted by the
borrower’s attorney at oral argument. In these circumstances, the bank established
a breach and the trial court should have entered a foreclosure judgment. See, e.g.,
Liberty Home Equity Sols., Inc. v. Raulston, No. 4D15-3652, 2016 WL 7118841,
at *3 (Fla. 4th DCA Dec. 7, 2016) (“[T]he trial court erred in finding that
appellee’s failure to pay property taxes and hazard insurance was not a material
breach justifying foreclosure.”).
2
The parties hotly disputed the amounts owed and the record reflects
conflicting evidence on this point. We remand for the trial court to make factual
findings consistent with this opinion and to enter a final judgment of foreclosure.
Reversed and remanded.
3