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Fersom Mortgage, Inc. v. Moreno

Florida Court of Appeals, Third District

April 25, 2018

Fersom Mortgage, Inc., Appellant,
v.
Carlos E. Moreno and Emira Moreno, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 12-2515, Rodolfo A. Ruiz, Judge.

          Walton Jones Browne, and Carla A. Jones and Holly M. Hamilton, for appellant.

          Loan Lawyers, LLC, and Chase E. Jenkins (Ft. Lauderdale), for appellees.

          Before SUAREZ, SALTER, and LINDSEY, JJ.

          SUAREZ, J.

         This is an appeal from a final order dismissing Appellant Fersom Mortgage, Inc.'s crossclaim for lack of jurisdiction. Because we find that Fersom's crossclaim survived dismissal of the main foreclosure action, we reverse and remand for further proceedings.

         In January 2012, The Bank of New York Mellon ("BNY"), the first mortgage lender, brought a foreclosure action against Appellees/Homeowners Carlos and Emira Moreno. Fersom had a second, separate mortgage on the property and was joined as a party. In May 2013, Fersom filed a crossclaim for foreclosure of its second mortgage and paid the crossclaim filing fee. The Homeowners were duly served, and they filed an answer and affirmative defenses in response to the crossclaim. In May 2014, following mediation between BNY and the Homeowners, BNY filed a voluntary dismissal of the main action.

         In September 2016, Fersom filed a motion for final judgment. In response, the Homeowners filed a motion to amend their answer to Fersom's crossclaim, which was granted. After filing their amended answer, the Homeowners filed a motion to dismiss Fersom's crossclaim for lack of subject-matter jurisdiction. In their motion to dismiss, the Homeowners, relying on Layne Dredging Co. v. Regus, Inc., 622 So.2d 7 (Fla. 2d DCA 1993), argued that Fersom's crossclaim did not survive BNY's voluntary dismissal. The trial court agreed and dismissed Fersom's crossclaim, citing Layne Dredging. This appeal follows.

         The issue before us is whether BNY's voluntary dismissal of the main foreclosure action extinguished the trial court's subject-matter jurisdiction as to Fersom's crossclaim. We hold that it did not; Fersom's crossclaim survived. Both the Homeowners' and the trial court's reliance on Layne Dredging is misplaced. In Layne Dredging, the Second District held that the trial court erred when it entered an order permitting the filing of a crossclaim "long after" voluntary dismissal of the main claim. Here, however, Fersom filed its crossclaim, paid its filing fee, served the Homeowners, and the Homeowners filed an answer before BNY filed its Notice of Voluntary Dismissal. Moreover, the court in Layne Dredging suggested that the crossclaim there "was purely derivative, so as to disappear with the dismissal of the main claim." Bruce J. Berman & Peter D. Webster, Fla. Prac., Civil Procedure § 1.420:8 n.4 (April 2018 update) (citing Layne Dredging, 622 So.2d at 8 ("Any purpose the defendant [crossclaimant] may have had to transfer its liability through a crossclaim . . . was nullified at the moment when [plaintiff] accomplished the voluntary termination of its lawsuit.")). In contrast, the crossclaim here does not appear to depend on the survival of the main claim.

         In Bird Lakes Dev. Corp. v. Velez, 846 So.2d 555 (Fla. 3d DCA 2003), this Court held that both a crossclaim and third party claim survived dismissal of the main action because none of the pleadings or orders entered in connection with the dismissal referred to the crossclaim or the third party claim. The same is true here. The voluntary dismissal only addressed BNY's foreclosure action; it did not address Fersom's crossclaim.

         Because Fersom's crossclaim was filed before the voluntary dismissal and the voluntary dismissal did not address the action between Fersom and the Homeowners, the trial court had subject-matter jurisdiction over Fersom's crossclaim.[1] We therefore reverse and remand for further proceedings.

         Reversed ...


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