REAL ESTATE: MORTGAGE FORECLOSURE: RIPENESS: DISTRIBUTION OF FIRE INSURANCE PROCEEDS MUST AWAIT FORECLOSURE SALE; CIVIL PROCEDURE: SUMMARY JUDGMENT: ERROR IN HEARING MOTION FOR SUMMARY JUDGMENT ONLY SIXTEEN DAYS AFTER IT WAS SERVED WAS HARMLESS BECAUSE NONMOVING PARTY DID NOT OBJECT TO HAVING THE MOTION HEARD, SHE WAS ALLOWED TO ADVANCE HER POSITION AT THE HEARING, AND SHE DID NOT CONTEND THE OUTCOME WOULD HAVE BEEN DIFFERENT IF THE COURT WAITED ANOTHER FOUR DAYS TO HEAR THE MOTION

White v. Ocwen Loan Servicing, LLC, ­___ So. 3d ___, 40 Fla. L. Weekly D756 (Fla. 3d DCA March 25, 2015)

The trial court in a mortgage foreclosure entered summary judgment for the loan servicer on the borrower’s counterclaims. The motion was heard at trial only sixteen days after it was filed, but the appellate court held that this procedural error was harmless because the borrower did not object to having the motion heard, she was allowed to advance her position at the hearing, and she did not contend the outcome would have been different if the trial court waited another four days to conduct the hearing.

The mortgaged property was destroyed by fire before foreclosure. The court held that disposition of the insurance proceeds must await the sale of the property. “‘[W]here the loss precedes the foreclosure the mortgagee is the creditor of the owner at the time of loss, and has an election as to how to satisfy the debt. The mortgagee may either turn to the insurance company for payment as mortgagee . . . and recover, up to the limits of the policy, the mortgage debt; or the mortgagee may foreclose on the property . . . [.] If the mortgagee elects to foreclose on the property and the foreclosure sale does not bring the full amount of the mortgage debt, then the mortgagee may recover the deficiency under the insurance policy as owner.’ . . . However, in no event is [the mortgagee] entitled to collect more than the debt secured.”

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/.