Van Ness Attorneys

Van Ness Prevails in Note Certification Appeal

Summary judgments are subject to reversal on appeal more than judgments entered after trial because a summary judgment effectively denies a litigant their day in court. Van Ness procured a summary judgment in favor of its client and it was recently affirmed on appeal. In Capital Markets Group v. LendingHome Funding Corp., Case No. 1D18-2276 (Fla. 1st DCA June 4, 2019), the borrowers argued that the Florida statutes and rules of civil procedure relating to note certification create a condition precedent to filing a foreclosure action and that plaintiff failed to sufficiently authenticate the note in its note certification. Van Ness defended its case on appeal.

Van Ness argued that the grounds for appeal had been waived because the borrowers did not provide a transcript of the proceeding. Whether a transcript is necessary is a fundamental concern of appellate practice in Florida and can be the end of many appellate actions. Van Ness argued that, because the borrowers did not claim that the final judgment in favor of plaintiff was fundamentally and facially erroneous, the appellate court could not reverse the trial court in the absence of a transcript.

Van Ness also argued that neither section 702.015 of the Florida Statutes nor rule 1.115 of the Florida Rules of Civil Procedure establish a condition precedent to filing suit. If a plaintiff fails to meet a condition precedent to filing a lawsuit, the lawsuit is subject to dismissal. Construing a provision as not creating a condition precedent can prevent such a dismissal. This effort requires a technical analysis of the pertinent statutes and rules. The distinction between a statutory or rule requirement and a condition precedent in Florida can save a case.

Appellate actions present two distinct requirements for counsel: detailed knowledge of the appellate system and a robust understanding of the ever-changing landscape of foreclosure law. Counsel must be aware of the requirements for preservation of error, the appropriate standard of review, and how to properly construct an argument on appeal. All this knowledge must be set against the substantive backdrop of foreclosure law in the State of Florida.