US Bank National Association, as Trustee for CSFB Heat 2006-7, Petitioner,
Jason Tranumn and D'Honour Tranumn, Respondents.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
for Writ of Certiorari-Original Jurisdiction.
Michael K. Winston and Dean A. Morande of Carlton, Fields,
Jorden, Burt, P.A., West Palm Beach, for Petitioner.
J. Lee of Schuler & Lee, P.A., Jacksonville, for
Petitioner, U.S. Bank National Association (US Bank),
challenges the circuit court's "Final Judgment in
the Amount of $80, 587.17" (Final Judgment). This Court
found that the Final Judgment is not an appealable non-final
order due to pending counterclaims. Therefore, U.S. Bank
filed a petition for writ of certiorari requesting that the
Final Judgment be quashed because the trial court: 1) severed
the Respondents' counterclaims, even though they were
inextricably intertwined with their affirmative defenses; 2)
granted relief that was not pled; 3) engrafted a
"face-to-face" meeting requirement into the Note
and Mortgage as a condition precedent to foreclosure; 4)
issued a money judgment that purports to be immediately
executable, even though the proceedings below are not final
because of a pending counterclaim; and 5) issued a judgment
granting attorneys' fees directly in favor of the
Respondents' counsel and refused to permit U.S. Bank to
offset that judgment against its money judgment. We grant
U.S. Bank's petition, and write to address the trial
court's severance of the Respondents' counterclaims.
March 31, 2006, Respondents, D'Honour Tranumn and Jason
S. Tranumn (the Tranumns), executed a promissory note and
mortgage for property located in Duval County. U.S. Bank has
the right to enforce the mortgage. In June 2010, the Tranumns
were notified that their mortgage was in default due to
non-payment of their November 2009 installment, as well as
subsequent monthly installments and late fees. The Tranumns
paid an $11, 835.32 reinstatement fee and the mortgage was
taken out of foreclosure. The reinstatement fee made the
mortgage current, and the next payment was due in July 2010.
However, the Tranumns missed their July payment and
subsequently defaulted again on their mortgage. The Tranumns
received a letter dated August 15, 2010, indicating that they
would have to pay $4, 615.10 by September 14, 2010, in order
to prevent immediate acceleration, as well as foreclosure.
The Tranumns made no further payments.
U.S. Bank filed a complaint against the Tranumns to foreclose
on the mortgaged property. U.S. Bank alleged that the
Tranumns owed a principal balance of $176, 402.03, plus
interest. The Tranumns filed Amended Answers, Affirmative
Defenses, and Counterclaims.
bench trial, U.S. Bank elicited testimony that the principal
balance owed by the Tranumns was $176, 402.03, and the total
amount owed including interest, fees, and taxes was $237,
509.68. After U.S. Bank and the Tranumns rested, the trial
court inquired as to any pending counterclaims. Tranumns'
counsel stated that a prior judge had dismissed a jury trial
demand for the counterclaims with prejudice. Counsel for U.S.
Bank then began to speak on the issue, but was cut off by the
[US BANK]: If I may, they're inextricably intertwined
with the affirmative defenses raised-
THE COURT: Well, that's the reason-we don't
handle-when a counterclaim is filed in a foreclosure action,
we bifurcate the cases. We keep the foreclosures. The
counterclaim goes to the civil division judges that this case
is assigned to.
We go forward on the foreclosure unless he enters the stay
order staying the foreclosure proceeding because it's
integrated into the counterclaim. But I'm just ...