REAL ESTATE: MORTGAGE FORECLOSURE: LONG TERM LEASE: QUIET TITLE; CIVIL PROCEDURE: SUMMARY JUDGMENT: ERROR TO GRANT SUMMARY JUDGMENT ON GROUND NOT RAISED BY MOTION FOR SUMMARY JUDGMENT: ISSUES OF FACT EXISTED WHETHER LEASE PAYMENTS WERE SUBJECT TO ABATEMENT DURING FORECLOSURE PROCESS

HSBC Mortgage Corporation (USA) v. Mullan, ___ So. 3d ___, 40 Fla. L. Weekly D567 (Fla. 2d DCA March 4, 2015)

The lender included the lessor as a defendant in an action to foreclose on the 99 year lease on a condominium unit. The lessor filed a counterclaim to quiet title to the unit based on the premise that the mortgage attached only to the borrower’s leasehold estate, which had terminated because of his failure to pay rent. The lender opposed the lessor’s motion for summary judgment based upon insufficiency of notice to the lender of unpaid rent. The trial court granted summary judgment for the lessor because the lease entitled only institutional mortgagees to notice of default, and the mortgage identified MERS as the mortgagee. The appellate court reversed because the lessor never argued in the trial court that the lender was not entitled to notice but only that notice was sufficient. “[T]he trial court committed reversible error in granting summary judgment on an issue not raised by [the moving party].” In addition, material issues of fact existed whether the lease payments were subject to abatement during the foreclosure process.

To read more briefs in the Real Estate: Mortgage Foreclosure category of the Kashi Law Letter, please click here, http://www.kashilawletter.com/category/real-estate-law/mortgage-foreclosure/.

To read more briefs in the Civil Procedure: Judgment category of the Kashi Law Letter, please click here, http://www.kashilawletter.com/category/civil-procedure/judgment/.