Calixte and Petit-Frere v. Federal National Mortgage Assoc. , 2017 Fla. App. LEXIS 1995 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed February 15, 2017.
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No. 3D15-2765
Lower Tribunal No. 14-28843
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Edly F. Calixte and Marie J. Petit-Frere,
Appellants,
vs.
Federal National Mortgage Association,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Robert J. Luck,
Judge.
Philippe Symonovicz (Fort Lauderdale), for appellants.
Choice Legal Group, P.A., and Wm. David Newman, Jr. (Fort Lauderdale),
for appellee.
Before SUAREZ, C.J., and ROTHENBERG and LOGUE, JJ.
PER CURIAM.
On Motion for Rehearing
Upon consideration of the appellants’ motion for rehearing, we withdraw
this court’s opinion issued November 20, 2016, and substitute the following
opinion in its stead.
Edly Calixte and Marie J. Petit-Frere appeal a final judgment of mortgage
foreclosure entered against them and in favor of Federal National Mortgage
Association. We uphold the judgment in all respects except for one point. As the
Bank commendably concedes, the trial court failed to determine whether
Appellants were “adequately protected against loss that might occur by reason of a
claim by another person to enforce the instrument,” as required by section
673.3091(2), Florida Statutes (2015). Accordingly, we reverse the final judgment
of mortgage foreclosure and remand for further proceedings, “at which the court
must address the means by which the Bank must satisfy this post-proof condition.”
Blitch v. Freedom Mortg. Corp., 185 So. 3d 645, 646-47 (Fla. 2d DCA 2016)
(“Because the court’s consideration of the issue of adequate protection is a
condition of entering a judgment that reestablishes a lost note, its failure to provide
adequate protection, or to make a finding that none is needed under the
circumstances, requires reversal and remand for the court to consider the issue.”).
Reversed and remanded for further proceedings.
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