we're there. always.®

GMAC Mortgage, LLC v. Choengkroy

By Shaun Ramey • Saturday, December 15, 2012

This case originated as a foreclosure action out of Indian River County.  GMAC filed the complaint which included copies of the mortgage and promissory note.  The defendants failed to file a response resulting in the clerk entering a default.   GMAC moved for summary judgment, but the trial court, without a motion or any appearance by the debtor, entered a final order dismissing the case on the grounds that “the mortgage was not assigned until after the action was filed on March 22, 2010.”  In the final order, the trial court found that “when the action was filed the mortgage was not owned by [GMAC] and [GMAC] lacked standing to file the complaint.”

As a part of its analysis, the Fourth District Court of Appeal referenced a prior 4th DCA opinion, McLean v. JP Morgan Chase, which held that the lender “may also establish standing by presenting evidence which shows either an assignment or an equitable transfer of the mortgage prior to the filing of the complaint.” Therefore, if there is an indication that an equitable transfer of the loan occurred prior to the date of the mortgage assignment, dismissal of the complaint would be incorrect.

In this case, there was evidence indicating an equitable transfer prior to the filing of the complaint, and resolution of GMAC's standing, at a minimum, required an evidentiary hearing.  In addition, the 4th DCA went on to hold that a trial judge may not sua sponte dismiss an action based on affirmative defenses not raised by the debtor because it denies the lender its due process rights. For these reasons, the 4th DCA reversed the trial court's decision and remanded the case for further proceedings.

Wonderful featured pages