Florida Appellate Court Reversed Foreclosure Judgment against Mortgagor Holder Holding a Probate is Required to Complete a Foreclosure

Florida’s Fourth Appellate District reversed a foreclosure judgment with a ground breaking decision creating additional steps to foreclose the interest of a deceased party.  The Court’s decision in Desbrunes v. US Bank Nat’l Ass’n, as Tr. for Structured Asset Sec. Corp. Mortgage Pass-Through Certificates, Series 2006-AM1, 2024 WL 591432, at *1 (Fla. 4th DCA Feb. 14, 2024) represents a detrimental break in Florida jurisprudence that has governed foreclosure proceedings for decades.

The factual background of this case is not unlike many foreclosure proceedings. US Bank National Association, as Trustee for Structured Asset Securities Corp. Mortgage Pass Through Certificates, Series 2006-AM1 (“Plaintiff”) filed an action for foreclosure naming Francois Desbrunes as a defendant.  Desbrunes actively litigated the case, but passed away before the entry of the Judgment, wherein his counsel filed a suggestion of death.

The Plaintiff then moved to amend the complaint to drop Desbrunes as a party, add known and unknown heirs, as well as appoint a guardian ad litem.  Desbrunes counsel, who was no longer representing any party, filed a Motion to Abate pursuant Fla. R. Civ. P. 1.260(a), stating a probate must be opened in order to continue the action.  The Trial Court denied the Motion because Desbrunes counsel was not a party to the case.

Ultimately the Trial Court granted judgment in favor of the Plaintiff, and an heir, Ronald Desbrunes appealed the ruling. The Fourth held that the Plaintiff improperly substituted Desbrunes with the heirs pursuant to Rule 1.260(a) despite the fact the Plaintiff never moved for substitution under the Rule.  The Fourth held that only an Estate can be substituted in for a deceased party citing to non-foreclosure cases involving money judgments.

The Fourth went further to find any judgment where a probate was not opened would a “nullity.”  This language causes the most concern as it would open completed cases to attack.  Due to the severity of this ruling a rehearing was filed.

DAA, on behalf of USFN, also filed an Amicus Curie brief, joined by ALFN and Legal League.  The purpose of the Amici was to bring to the attention of the Court that if the opinion not revised, or reversed, this it will significantly impact the mortgage industry, and cause severe consequences this Court may not have anticipated or intended.