Gretchen Miller v. Washington Mutual Bank, f/k/a Washington Mutual Bank, FA , 2016 Fla. App. LEXIS 220 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GRETCHEN MILLER,
Appellant,
v.
WASHINGTON MUTUAL BANK, f/k/a WASHINGTON MUTUAL BANK,
FA,
Appellee.
Nos. 4D14-2290 & 4D14-2654
[January 6, 2016]
Consolidate appeal from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Howard H. Harrison, Senior Judge; L.T. Case
No. 2008CA013001XXXXMB.
Jeffrey Begens of Law Office of Jeffrey Begens, P.A., Palm Beach
Gardens, for appellant.
Candy L. Messersmith, Suzanne B. Hill, and David C. Willis of
Rumberger, Kirk & Caldwell, Orlando, and Elizabeth T. Frau of Ronald R.
Wolfe & Associates, P.L., Tampa, for appellee.
LEVEY COHEN, MARDI, Associate Judge.
Gretchen Miller appeals the trial court’s issuance of a certificate of title
and final judgment of foreclosure. Miller claims that she and her husband
co-owned the residential property that was the subject of the foreclosure
action, and since her husband was an indispensable party that was not
included in the action, it was error to issue a certificate of title. We agree
and reverse.
In 2008, Washington Mutual Bank (“the Bank”) filed a foreclosure claim
against Gretchen Miller and her husband, Keith Miller, on residential
property they co-owned. The mortgage on the property reflected that
Gretchen Miller was the sole signer and borrower. Initially, Gretchen
Miller and her husband moved to dismiss the action claiming that since
only Gretchen Miller executed the mortgage, her husband could not be a
party to the action. The trial court denied the motion. Subsequently, and
for no explainable reason, the Bank voluntarily dismissed Gretchen
Miller’s husband from the action.
Following a trial held in April of 2014, the court entered judgment of
foreclosure in favor of the Bank. The property was sold pursuant to the
judgment and the clerk issued a certificate of title. Gretchen Miller moved
to vacate the sale and final judgment and objected to the issuance of the
certificate of title. After a hearing, the trial court denied Miller’s motion.
This appeal ensued.
The residential property in question was owned by husband and wife,
and as such was being held as a tenancy by the entirety. See Beal Bank,
SSB v. Almand & Assocs., 780 So. 2d 45, 54 (Fla. 2001). The Bank was
well aware of their co-ownership as it initially filed the complaint against
both husband and wife and also provided to the court a deed showing that
the property was transferred to Gretchen Miller and Keith Miller as
husband and wife. The record and pleadings are uncontroverted as to the
husband and wife co-owning the property at the time of the foreclosure
action.
Property that is owned by husband and wife as tenants by the entirety
cannot satisfy the debt of one tenant alone. Neu v. Andrews, 528 So. 2d
1278, 1279 (Fla. 4th DCA 1988). Rocketrider Pictures, LLC v. BankUnited,
138 So. 3d 1223 (Fla. 3d DCA 2014), presents a situation similar to the
instant case. There, the appellate court held that property owned by
husband and wife as tenants by the entirety was not subject to sale where
foreclosure was entered only against the wife’s interest in the property. Id.
Gretchen Miller and her husband co-owned residential property as
tenants by the entirety. Insofar as the foreclosure judgment was only
against the wife but not the husband, and the husband was an
indispensable party, the certificate of title cannot issue. Accordingly, we
reverse the final judgment of foreclosure as well as the trial court's order
denying Gretchen Miller’s objections to the judicial sale and issuance of
certificate of title.
Reversed.
WARNER and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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