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Llano Financing Group, LLC v. Yespy

Florida Court of Appeals, Fourth District

August 23, 2017

ROGER YESPY, individual, and GULFSTREAM APPRAISAL COMPANY, an inactive Florida corporation, Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 2015CA010747.

          Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for appellant.

          Scott 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.

          May, J.

         This is 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.

         The claim servicer filed a complaint against the property appraiser[1] 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 complaint.

         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 "Lender/Client."

         The 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."

         The 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.

         The 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.

         Savant 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 comparable properties.

         The 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.

         The 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.

         While 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 property ...

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