ABDUL SALAM and GHAZALA K. SALAM v. U.S. BANK NATIONAL ASSOC., ETC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ABDUL SALAM and GHAZALA K. SALAM,
Appellants,
v.
U.S. BANK NATIONAL ASSOCIATION, As Trustee, Successor In Interest
To WACHOVIA BANK, NATIONAL ASSOCIATION, As Trustee For
WELLS FARGO ASSET SECURITIES CORPORATION, Mortgage Pass-
Through Certificates, Series 2005-AR13; WELLS FARGO BANK N.A.;
THE TOWN FOUNDATION, INC.; THE RIDGES MAINTENANCE
ASSOCIATION, INC.; Any and All Unknown Parties Claiming By,
Through, Under and Against The Herein Named Individual Defendant(s)
Who Are Not Known To Be Dead Or Alive, Whether Said Unknown Parties
May Claim An Interest As Spouses, Heirs, Devisees, Grantees, Or Other
Claimants; Unknown Tenant 1; Unknown Tenant 2; Unknown Tenant 3;
and Unknown Tenant 4; The Names Being Fictitious To Account For
Parties In Possession,
Appellees.
No. 4D16-1693
[December 20, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case No. 14-10840 (11).
Chase E. Jenkins of Loan Lawyers, LLC, Fort Lauderdale, for
appellants.
Sara F. Holladay-Tobias, C.H. Houston, III, and Monica L. Haddad
Forbes of McGuireWoods LLP, Jacksonville, for appellee U.S. Bank
National Association, As Trustee, Successor In Interest To Wachovia
Bank, National Association, As Trustee For Wells Fargo Asset Securities
Corporation, Mortgage Pass-Through Certificates, Series 2005-AR13.
CIKLIN, J.
In this appeal from a foreclosure judgment, Abdul and Ghazala Salam
(“the homeowners”) argue that the trial court erred in denying their
motion for involuntary dismissal and entering a final judgment where the
mortgage did not contain a legal description for the property. We find
that the plaintiff in the underlying foreclosure suit presented sufficient
evidence to establish a prima facie case, and we affirm.
In 2005, Abdul Salam executed a note in favor of the lender, Wells
Fargo Bank, N.A. The homeowners executed a mortgage securing the
note. The mortgage identifies the lender as the mortgagee and provides
the property address. The mortgage also contains a stamp reflecting
recording information, including a recording date and time, and book
and page number references:
INSTR # 104925505
OR BK 39480 PAGES 686-710
RECORDED 04/20/05 15:56:30
BROWARD COUNTY COMMISSION
DOC STMP-M: $1624.00
INT TAX: f1 $928.00
DEPUTY CLERK 3075
#1, 25 Pages
In 2014, U.S. Bank National Association, as Trustee, Successor in
Interest to Wachovia Bank, National Association, as Trustee for Wells
Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates,
Series 2005-AR13 (“the bank”), brought suit against the homeowners,
seeking to foreclose on the mortgage. The bank identified the official
records book of Broward County where the mortgage securing the note is
recorded: “Official Records Book 39480, at Page 686, of the Public
Records of Broward County, Florida.”
During trial, the original mortgage was introduced into evidence by
the bank. Although the original mortgage referenced an attached legal
description, there was no attachment to the original mortgage. An
assignment was also introduced into evidence. It provided a legal
description for the mortgaged property, and stated that the mortgage was
“recorded April 20, 2005 in Official Records Book 39480 at Page 686 of
the public records of BROWARD County . . . .”
After the bank rested, the homeowners moved for involuntary
dismissal, arguing that the bank “failed to state a cause of action” in the
absence of a legal description in the mortgage. The homeowners further
argued that a legal description is necessary to protect third parties: “It
could be foreclosing on only part of the actual subject property.” The
homeowners also pointed out that the bank had not pled a reformation
count.
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The bank relied on the legal description contained in the assignment.
It also argued that the homeowners’ argument was waived, as it was not
raised as an affirmative defense.
The trial court denied the motion for involuntary dismissal, reasoning
that the absence of a legal description was not raised in the homeowners’
affirmative defenses.
On appeal, the homeowners first argue that they did raise the absence
of a legal description in their affirmative defenses, and that their denial of
the bank’s allegations was sufficient to require the bank to prove that
there was a mortgage on the property. The homeowners also argue that
the bank failed to prove a lien existed on the subject property, because
the note, mortgage, and modification entered into evidence did not
contain a legal description of the property. We need not entertain the
homeowners’ first argument, as we find that the bank presented a prima
facie case.
We review a trial court’s ruling on a motion for involuntary dismissal
de novo. Deutsche Bank Nat’l Trust Co. v. Huber, 137 So. 3d 562, 563
(Fla. 4th DCA 2014). “To establish a prima facie case, a foreclosure
plaintiff must prove: (1) an agreement between the parties; (2) a default
by the defendant; (3) acceleration of the debt to maturity; and (4) the
amount due.” Liberty Home Equity Sol., Inc. v. Raulston, 206 So. 3d 58,
60 (Fla. 4th DCA 2016). “In other words, the plaintiff must introduce the
subject note and mortgage, an acceleration letter, and some evidence
regarding the outstanding debt.” Id.
“[T]he lien of a mortgage encompasses the property described in the
mortgage. Thus, for a mortgage to create a valid lien, the mortgage must
contain a sufficient description of the property to enable the parties to
ascertain and locate the property affected by the lien.” Heartwood 2, LLC
v. Dori, 208 So. 3d 817, 821 (Fla. 3d DCA 2017) (citation omitted); see
also § 697.02, Fla. Stat. (2014) (“A mortgage shall be held to be a specific
lien on the property therein described, and not a conveyance of the legal
title or of the right of possession.”).
“Florida courts have repeatedly held descriptions of property in
mortgages sufficient despite minor mistakes and irregularities where the
description of the property intended to be encumbered could be
determined from a review of the entire instrument.” Regions Bank v.
Deluca, 97 So. 3d 879, 884-85 (Fla. 2d DCA 2012). As early as 1907, the
Florida Supreme Court elaborated on the sufficiency of a property
description in a mortgage:
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It must be borne in mind that the contest here is directly
between the parties to the mortgage. As to the description of
the property mortgaged, the rule is . . . as follows: ‘As
against third persons the mortgage must point out the
subject-matter, so that the third person may identify the
property covered by the aid of such inquiries as the
instrument itself suggests; but between the parties it is only
necessary to identify the chattels, so that the mortgagee may
say with a reasonable degree of certainty what property is
subject to his lien.’
Davis v. Horne, 45 So. 476, 477 (Fla. 1907) (citation omitted). There, the
mortgaged property was described as “all the following described
property, situate, lying, and being in Suwanee [C]ounty, Florida, to wit:
All the real estate and timber or timber interest, of whatsoever nature,
kind, or description, that is owned by the parties of the first part, or
either of them . . . .” Id. at 477. The mortgage further described
specified personal property “together with the farm, and the
improvements thereon, that is now owned and that may be hereafter
owned by the said parties of the first part in said county during the time
that the parties of the first part, or either of them, may be indebted to the
party of the second part . . . .” Id. The Florida Supreme Court found the
description was sufficient as to the parties to the mortgage, and that
parol evidence was admissible to identify the property. Id.
We can also find guidance in cases involving the sufficiency of
property descriptions in deeds. In Mendelson v. Great Western Bank,
F.S.B., 712 So. 2d 1194 (Fla. 2d DCA 1998), the court summarized our
courts’ holdings:
To effect a valid conveyance of real property, a deed or
other instrument must describe the property such that it is
evident that a particular parcel, and not a different or
unspecified one, is to be conveyed. See Simons v. Tobin, 89
Fla. 321, 104 So. 583 (1925); Lente v. Clarke, 22 Fla. 515, 1
So. 149 (1886). Florida follows a liberal policy in this regard.
See Mitchell v. Moore, 152 Fla. 843, 13 So. 2d 314 (1943).
The rule is that a description is sufficient if, by relying on the
description read in light of all facts and circumstances
referred to in the instrument, a surveyor could locate the
land. See Burns v. Campbell, 131 Fla. 630, 180 So. 46
(1938); Bajrangi v. Magnethel Enterprises, Inc., 589 So. 2d
416 (Fla. 5th DCA 1991).
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Following this rule, Florida courts have upheld
conveyances that identified the subject properties by their
street addresses, Bajrangi, 589 So. 2d 416; Baker v. Baker,
271 So. 2d 796 (Fla. 3d DCA 1973); or by designations
commonly understood in the communities in which the
properties were located, Simons, 89 Fla. 321, 104 So. 583
(“Esmerelda Hotel Property”); Mitchell, 13 So. 2d 314 (“Palm
Beach Farms”); and by such seemingly imprecise language
as “my forty near the Garrison lands, in Hernando County,”
Lente, 22 Fla. 515, 1 So. 149.
On the other hand, if the instrument’s description of the
property is patently ambiguous, and the instrument
furnishes no other information from which the parties’
intention can be gleaned, the attempted conveyance is void,
and parol evidence may not be employed to cure the
deficiency. For example, in Carson v. Palmer, 139 Fla. 570,
190 So. 720 (1939), the deed at issue gave two inconsistent
legal descriptions, describing two separate parcels. Our
supreme court held that, in the absence of other language in
the instrument showing the grantor’s intent as to which
parcel was to be conveyed, the deed was void. In Mitchell v.
Thomas, 467 So. 2d 326 (Fla. 2d DCA 1985), the deed
described the property by metes and bounds, but omitted
two boundary calls, such that the description did not close.
This court held that the attempted conveyance was void
because the deed contained insufficient information to
permit a surveyor to locate the land to be conveyed.
....
[A] property description may be aided by reference to the
public records if the instrument contains information
sufficient to identify the property through that line of
inquiry. “Extrinsic facts pointed out in the description may
be resorted to to ascertain the land conveyed, and the
property may be identified by extrinsic evidence, as in the
case of records of the county where the land is situate.”
Id. at 1196-97 (emphasis omitted).
In Mendelson, the final judgment of divorce awarded the husband an
interest in the property, and described it as follows: “[T]he property
consisting of approximately 1 adjacent acre and the former marital home
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as well as approximately 1 acre of vacant land located on the corner of
South Race Track Road and State Street in Hillsborough County,
Florida.” Id. at 1195. The appellate court found that this was sufficient:
Here, the . . . divorce judgment reflected that it conveyed an
interest in property owned by one or the other of named
parties. The property was described by its approximate
quantity and location at a particular intersection within
Hillsborough County. Thus, the information on the face of
the document supported a line of inquiry in the public
records of Hillsborough County to ascertain whether they
described a property that met all the mentioned criteria.
Id. at 1197. The court acknowledged the “off chance” that more than one
parcel of property would meet the description contained in the judgment,
but concluded “that possibility does not invalidate the property
description.” Id. Rather, the defendant would have the burden to prove
that he owned more than one parcel of property matching the
description. Id.
Here, the mortgage is between named parties and contains a property
address and a stamp with recording information. We find that the bank
presented a prima facie case of foreclosure. 1
Affirmed.
WARNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1The homeowners rely on a reformation case, Losner v. HSBC Bank USA, N.A.,
190 So. 3d 160 (Fla. 4th DCA 2016), but that opinion does not address whether
a property address and recording information in a mortgage constitutes a
sufficient property description.
6