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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
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Experience:  Attorney and Real Estate broker -- Retired (mostly)
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Can a bank foreclose on a property that has a mortgage that

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Can a bank foreclose on a property that has a mortgage that has been executed improperly? No legal description of the property was included; therefore, making the morgage and the note separated. Would the note then be considered uncollaterized?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  socrateaser replied 1 year ago.
Hello,

Please clarify. You are stating that the mortgage recorded with the county has no legal description of the subject property?

If yes, then what does the mortgage actually identify concerning the loan?
Customer: replied 1 year ago.

I do not have the mortgage copy in front of me, but I do know that it does not include a legal description of the property. In effect, the mortgage and the note are separated due to this error of ommission.

Expert:  socrateaser replied 1 year ago.

Okay, thanks!

In Regions Bank v. Deluca, 97 So. 3d 879 (Fl 2nd App. 8/22/2012), the Florida 2nd District Court of Appeals writes:

The lien of a mortgage only covers the property that is described in the mortgage. § 697.02, Fla. Stat. (2004); Sunshine Meadows Condo. Ass'n v. Bank One, Dayton, N.A., 599 So.2d 1004, 1007 (Fla. 4th DCA 1992). It follows that the recording of a mortgage with no description of the property or a description that would have to be reformed to be effective does not constitute constructive notice and defeats the effect and purpose of recordation. See Neves v. Flannery, 111 Fla. 608, 149 So. 618, 620 (1933) (quoting 41 C.J. at 564-65); Air Flow Heating & Air Conditioning, Inc. v. Baker, 326 So.2d 449, 451 (Fla. 4th DCA 1976). However, in considering the sufficiency of a legal description in a mortgage, one must examine the entire instrument:

If it is apparent from the face of the record that there is a mistake or misdescription, which is capable of being corrected from other parts of the same instrument, or other details of the same description, it operates as a constructive notice.

Neves, 149 So. at 620 (quoting 41 C.J. at 564-65). Based on this principle, the Florida courts have repeatedly held descriptions of property in mortgages sufficient 885*885 despite minor mistakes and irregularities where the description of the property intended to be encumbered could be determined from a review of the entire instrument. See, e.g., Fed. Land Bank of Columbia v. Dekle, 108 Fla. 555, 148 So. 756, 757 (1933) (holding description of lands by government surveys and subdivisions sufficient despite reference to lands as being in Calhoun County when they were in fact in Jackson County); Neves, 149 So. at 620-21 (holding description of land by reference to lots, block number, and name of recorded plat sufficient despite erroneous statement that the land was located in "the SE 1/4 of the SE 1/4" instead of in "the S.W. 1/4 of the S.W. 1/4" of the appropriate section); Merrell v. Ridgely, 62 Fla. 546, 57 So. 352, 353 (1912) (holding description of land by lot and block number of named subdivision sufficient despite reference to an incorrect plat book for the subdivision); Fid. Bank of Fla. v. Nguyen, 44 So.3d 1238, 1239 (Fla. 5th DCA 2010) (holding description of land by lot and block number of a subdivision identified by name and the designation of the correct plat book sufficient despite reference to an incorrect page number of the plat book), review denied, 57 So.3d 846 (Fla.2011). With these basic principles in mind, we turn to an examination of the arguments made by the Delucas and JPMorgan on the issue of constructive notice.


END QUOTE

As can be seen from the above, a complete absence of any legal description in a mortgage would render the mortgage invalid and the creditor would have to sue on the note for default, instead of based upon a foreclosure theory. Assuming that the creditor were to prove the case, it would have a judgment against the borrower -- however, as Florida has an unlimited homestead exemption, the creditor would be unable to foreclose against the borrower's home, if that was the property originally secured by the invalid mortgage.

Please let me know if my answer is helpful, or if I can provide further assistance. And, thanks for using justanswer.com!

Customer: replied 1 year ago.

You have been most helpful. The bank has asked for a summary judgment, which they were granted, because I did not have sufficient defense. They asked for reformation based on a deposition of me and my husband determining "intent". However, there is no written intent in the morgage and you are correct on the note. I think I have a strong case for having the summary judgement reversed. And I am mad. We asked the bank to mediate and we received no answer. As with most properties in Florida, our property is work about half of what we agreed to when it was purchased. i know that means nothing, but the bank will take a huge loss ono this one and we are willing to reaffirm the note and mortgage if we can work out an agreement. We want to keep our property

Expert:  socrateaser replied 1 year ago.
I hope that things work out for you. I can't comment intelligently on the deposition evidence, but based upon your description of the mortgage instrument, I do not see how a court could find that the mortgage provides constructive notice of your property being secured by the mortgage to the note.

Best of luck with your appeal.
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 34403
Experience: Attorney and Real Estate broker -- Retired (mostly)
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