White v. Ocwen Loan , 159 So. 3d 1009 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed March 25, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-3229
Lower Tribunal No. 11-36956
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Pamela Z. White,
Appellant,
vs.
Ocwen Loan Servicing, LLC, et al.,
Appellees.
An appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Carlos A. Ziegenhirt, for appellant.
Morris, Laing, Evans, Brock & Kennedy and Khari E. Taustin and Jeremy
W. Harris and Masimba M. Mutamba and Angela Barbosa Wilborn (West Palm
Beach), for appellees.
Before SUAREZ, LAGOA, and SCALES, JJ.
SUAREZ, J.
Pamela Z. White seeks to reverse a final judgment in foreclosure, as well as
reverse the summary judgment entered in favor of plaintiff OneWest Bank, FSB,
on her counterclaims. White also seeks to recover certain insurance monies held
by the Intervenor plaintiff, OCWEN Loan Servicing LLC, as a result of a pre-
foreclosure property damage insurance payout. We affirm the final judgment in
foreclosure in favor of OCWEN, as well as the summary judgment on White’s
counterclaims against OneWest. We conclude that the issue regarding disposition
of the insurance proceeds is not ripe for review prior to sale of the property and
resolution of any dispute over satisfaction of the mortgage debt.
White is the personal representative of the estate of Willie Williams. In
2000, IndyMac made a mortgage loan to Mr. Williams.1 When Mr. Williams
failed to provide adequate hazard insurance on the house, IndyMac force-placed
hazard insurance on the property, which it maintained until 2007 when the property
was destroyed by a fire in which Mr. Williams died. White moved into the
property shortly afterward but failed to make payments on the mortgage. White
asserted that after the fire loss in 2007, she filed an insurance claim and received
somewhere between $114,000 and $117,000 as payout. Of that, White alleged that
approximately $30,000 was spent to minimally clean up the property and that the
1 IndyMac was closed in 2008, and in 2009, OneWest and the FDIC, on behalf of
IndyMac Federal, received the servicing rights to Mr. Williams’ loan. OneWest
sold its servicing rights to OCWEN during the pendency of the foreclosure.
OCWEN then moved to intervene as the proper party to prosecute claims
connected to the foreclosure. OCWEN’s Motion to Intervene stated that OneWest
remained the proper party to defend against any counterclaims filed against
OneWest as former loan servicer.
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remaining amount, approximately $85,000, is currently held in escrow by
OCWEN.
OneWest filed its complaint in foreclosure as holder and servicer of the Note
against White as personal representative of Mr. Williams’ estate. White answered
the Complaint and made several counterclaims, among them that OneWest or its
predecessors had failed to obtain adequate insurance to cover the property, or
placed insurance post-loss. At the foreclosure trial, OneWest moved for summary
judgment as to White’s counterclaims against it, contending that the record showed
that OneWest did not assume any liabilities for acts or omissions of the former
entities IndyMac or IndyMac Federal. White had previously testified that her
counterclaims focused exclusively on IndyMac's conduct in 2007 and 2008. The
trial court granted OneWest’s motion, concluding that White’s counterclaims were
made against the improper party.
White argues that the trial court’s consideration of the motion for summary
judgment at trial, where all parties were present, sixteen days after the motion had
been filed, is fundamental error. We agree that Florida Rule of Civil Procedure
1.510(c) provides that a party “shall serve its motion for summary judgment at
least 20 days before the time fixed for the hearing,” but also note that the record
shows White made no objection at trial to consideration of the motion, and was
allowed to argue the insurance money issue as it related to the foreclosure.
Further, she does not contend on appeal that the trial court’s consideration of the
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motion four days early would have altered the outcome of the trial. We conclude
that the procedural error was harmless. See Lumbermens Mut. Cas. Co. v. Martin,
399 So. 2d 536, 537 (Fla. 3d DCA 1981) (noting that “the numerous procedural
defects in the arbitration and the circuit court proceedings below did not adversely
affect the substantial rights of the appellant so as to interfere with an appropriate
determination of the merits.”); see also Blatch v. Wesley, 238 So. 2d 308, 309 (Fla.
3d DCA 1970) (holding the time set by Rule 1.510 is not jurisdictional and may be
waived by a failure to object or move for a continuance); E. & I. Inc. v.
Excavators, Inc., 697 So. 2d 545 (Fla. 4th DCA 1997); § 59.041, Florida Statutes
(2014). On the legal merits of the summary judgment, we review de novo the trial
court’s grant of OneWest’s motion for summary judgment. Volusia Cnty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). After
reviewing the entire record, we affirm the summary judgment as to the
counterclaims against One West.
After admitting evidence and hearing argument from all parties, the trial
court granted judgment of foreclosure. The record shows that White, as
representative of her father’s estate, failed to pay the mortgage on his property for
approximately six years; the original Note and Mortgage, loan payment history,
and assignments were admitted without objection; OCWEN was the ultimate
servicer of the loan, held the original Note and Mortgage, and was entitled to
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foreclose. White asserted no issues against OCWEN that would prevent
foreclosure, and we affirm.
As to the approximately $85,000 insurance proceeds still held by OCWEN,
the issue is not ripe for review. Once the property has been sold, the parties shall
retain the right to litigate disposition of the remaining insurance proceeds,
following this Court’s holding in Lenart v. OCWEN Financial Corp., 869 So. 2d
588 (Fla. 3d DCA 2004), which provides,
[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.
Lenart 869 So. 2d at 591. However, in no event is OCWEN entitled to collect
more than the debt secured. Id.Affirmed.
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