From Casetext: Smarter Legal Research

Lucas v. Barnett Bank of Lee Cty

District Court of Appeal of Florida, Second District
Jan 21, 1998
705 So. 2d 115 (Fla. Dist. Ct. App. 1998)

Summary

explaining that an incorrect legal description that is not corrected before entry of the final judgment of foreclosure and which is carried into the advertisement for sale and the foreclosure deed requires the court to begin the foreclosure case anew because potential bidders at the sale may not know the specific property being sold

Summary of this case from Refaie v. Bayview Loan Servicing, LLC

Opinion

Case No. 97-00820

Opinion filed January 21, 1998.

Appeal from the Circuit Court for Lee County; William C. McIver, Judge.

Frank P. Murphy of Keane Murphy, Naples, for Appellants.

Jeffrey D. Fridkin of Grant, Fridkin Pearson, P.A., Naples, for Appellee.


Chandler and Shirley Lucas challenge a final summary judgment modifying a legal description in a mortgage, partial release of security agreement, and certificate of title. Barnett Bank of Lee County had previously foreclosed on a mortgage given by the Lucases, and had obtained title to the property at a foreclosure sale. The bank brought this new action to reform an erroneous legal description in all the previously-recited documents. We reverse because the trial court had no authority to correct the inaccurate legal descriptions without first canceling the certificate of title and setting aside the original foreclosure judgment.

None of the parties contest the fact that the legal description in all the documents is incorrect. The metes and bounds description contains an erroneous distance and a mistaken course direction. As a result, the legal description does not close, and consequently it does not describe an actual parcel of real estate. The Lucases admitted both the error and the correct legal description in response to requests for admission from Barnett.

When a mortgage contains an incorrect legal description, a court may correct the mistake before foreclosure. If, however, the mistaken legal description is not corrected before final judgment of foreclosure, and the mistake is carried into the advertisement for sale and the foreclosure deed, a court cannot reform the mistake in the deed and judgment; rather, the foreclosure process must begin anew. Fisher v. Villamil, 62 Fla. 472, 56 So. 559 (1911). The reason behind this policy is that, if the mortgage is not reforeclosed, the purchaser would have obtained title to a property that was not properly ordered for sale, advertised, or sold. While the mortgagee who bid its mortgage at the sale might have understood exactly what property was being offered, other potential bidders at the sale might not have had the same understanding. 62 Fla. at 479, 56 So. at 561. As the Fisher court noted, the mortgage may be reformed if a sufficient showing is made, and the reformed mortgage may be foreclosed. But first, the deed to the property must be canceled, and the original foreclosure judgment set aside, such that the parties are returned to their original status. 62 Fla. 480, 56 So. 561; cf. § 702.08, Fla. Stat. (1993).

We reverse the summary judgment reforming the mortgage, partial release of security agreement, and certificate of title. If Barnett wishes to pursue reformation it must comply with procedures set out in Fisher.

Under the old forms of pleading, an action to reform an incorrect legal description in a mortgage or deed was brought as a bill of review. Morton v. Smith, 133 Fla. 260, 183 So. 475 (1938). Florida Rule of Civil Procedure 1.540 abolished bills of review, and requires that relief from a judgment be pursued by motion or independent action, as stated in the rule. Equitable reformation of a mortgage can now be accomplished either by filing a motion in the original action under rule 1.540(b)(5), or by filing an independent equitable action to reform the documents. Fla. R. Civ. P. 1.540(b).

Reversed.

QUINCE, A.C.J., and WHATLEY, J., Concur.


Summaries of

Lucas v. Barnett Bank of Lee Cty

District Court of Appeal of Florida, Second District
Jan 21, 1998
705 So. 2d 115 (Fla. Dist. Ct. App. 1998)

explaining that an incorrect legal description that is not corrected before entry of the final judgment of foreclosure and which is carried into the advertisement for sale and the foreclosure deed requires the court to begin the foreclosure case anew because potential bidders at the sale may not know the specific property being sold

Summary of this case from Refaie v. Bayview Loan Servicing, LLC

In Lucas v. Barnett Bank of Lee County, 705 So.2d 115, 115 (Fla. 2d DCA 1998), the Second District reviewed a final summary judgment that modified “a legal description in a mortgage, partial release of security agreement, and certificate of title,” when the mortgagor had previously obtained a final judgment of foreclosure and purchased the subject property at a foreclosure sale.

Summary of this case from Wells Fargo Bank, N.A. v. Giesel
Case details for

Lucas v. Barnett Bank of Lee Cty

Case Details

Full title:CHANDLER M. LUCAS and SHIRLEY K. LUCAS, Appellants, v. BARNETT BANK OF LEE…

Court:District Court of Appeal of Florida, Second District

Date published: Jan 21, 1998

Citations

705 So. 2d 115 (Fla. Dist. Ct. App. 1998)

Citing Cases

Wells Fargo Bank, N.A. v. Giesel

dants on their counterclaim in a foreclosure action could be affirmed based upon the “wherefore clause” in…

Fed. Nat'l Mortg. Ass'n v. Astrid Sanchez, Botanica/Sea Plum Master Ass'n, Inc.

If, however, the mistaken legal description is not corrected before final judgment of foreclosure, and the…