final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Cheryl Caracuzzo, Judge; L.T. Case No.
J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for
A. Cole and Daniel M. Schwarz of Cole Scott & Kissane,
P.A., Miami, and Thomas L. Hunker of Cole, Scott &
Kissane, P.A., Fort Lauderdale, for appellee Roger Yespy.
a case of the missing link-the claim servicer's standing
to pursue negligence claims against a property appraiser. A
third-party claim servicer appeals an order dismissing its
amended complaint against an individual and his company for
negligence in the appraisal of the mortgaged property. It
argues the trial court erred in dismissing the amended
complaint with prejudice. We disagree and affirm.
claim servicer filed a complaint against the property
appraiser for professional negligence
and false information negligently supplied for the guidance
of others. The property appraiser moved to dismiss the
complaint, arguing the claim servicer did not have standing,
failed to properly assert the causes of action or attach loan
documents, and was barred by the statute of limitations. The
trial court granted the motion to dismiss without prejudice,
giving the claim servicer thirty (30) days to amend the
claim servicer amended the complaint, and alleged the
original lender refinanced a mortgage secured by real
property. To obtain the loan, the borrower employed a
mortgage broker, who hired the property appraiser to prepare
an appraisal for the property. The property appraiser valued
the property, and listed the mortgage broker as
appraisal provided for the mortgage broker to
distribute the report to the borrower, other
lenders, the mortgagee or its successors and assigns, and
secondary market participants. It also stated: "[t]he
borrower, another lender . . ., the mortgagee or its
successors and assigns, mortgage insurers, . . . and other
secondary market participants may rely on this appraisal
report as part of any mortgage finance transaction .
. . ." (Emphasis added). But, it provided that the
intended user is the "lender/client." In a
different section, the appraisal stated: "THE CLIENT IS
THE INTENDED USER OF THIS REPORT. NO OTHER INTENDED USERS
HAVE BEEN IDENTIFIED BY THE APPRAISER."
original lender subsequently transferred the underlying
mortgage to Impac Funding Corporation ("Impac"),
which later sold it to Impac CMB Trust Series 2005-1 (the
"Trust"). Impac, the Trust, and Deutsche Bank
National Trust Company ("Trustee") entered into a
master servicing agreement. The parties agreed that Impac
would service the loans for the benefit of the Trustee.
agreement granted Impac the right to file and collect
insurance claims, institute lawsuits relating to
delinquent or non-performing mortgage loans within the
trust, and enter into subservicing agreements to
delegate duties. Impac entered into a subservicing agreement
with Savant LG, LLC ("Savant"), assigning all of
its legal rights to assert negligence claims against real
estate appraisers and other tortfeasors. However, Impac had
never been assigned those rights.
then assigned its rights to the claim servicer. The amended
complaint alleged that the claim servicer stood in the shoes
of the Trust, which relied upon the appraisal. It alleged
that when the foreclosed property was sold, the claim
servicer discovered the property's value was
substantially less than the appraised value. The claim
servicer argued the loss was due to the property
appraiser's negligence, including its use of dissimilar
property appraiser moved to dismiss and strike the amended
complaint on the same grounds contained in its original
motion to dismiss. The trial court granted the motion with
prejudice to the professional negligence count. It found the
claim servicer alleged a loss occurred when the property was
foreclosed, and the mortgage holder knew or should have known
that the appraisal misrepresented the value of the property.
The two-year statute of limitations ran ten months before the
complaint was filed.
court dismissed the false information negligently supplied
count for the same reasons, finding that the ordinary
negligence claim accrued at the time of the negligent act.
The trial court entered a final judgment for the property
appraiser. The claim servicer now appeals.
the trial court relied on the statute of limitations defense
as the basis for its dismissal of the amended complaint, we
affirm on an alternative ground argued by the property
appraiser: the claim servicer lacked standing to sue the