National City Bank v. Nagel

District Court of Appeal of Florida

National City Bank v. Nagel

95 So. 3d 458, 2012 WL 3587358, 2012 Fla. App. LEXIS 14008

CourtDistrict Court of Appeal of Florida

DecidedAugust 22, 2012

DocketNo. 4D11-3172

StatusPublished

Cited by2 cases

This text of 95 So. 3d 458 (National City Bank v. Nagel) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

National City Bank v. Nagel, 95 So. 3d 458, 2012 WL 3587358, 2012 Fla. App. LEXIS 14008 (Fla. Ct. App. 2012).

Pincite

Opinion

STEVENSON, J.

National City Bank filed a foreclosure suit against Kristin A. Nagel, et. al.; the complaint alleged that the note and mortgage had been executed in favor of First Franklin Financial, but that plaintiff was now the “owner” of the note. No answer, pleading, or paper of any kind was filed by the defendants. Thereafter, National City Bank filed a “Motion to Substitute Party Plaintiff,” alleging the note had been assigned subsequent to the filing of the foreclosure suit. The trial court sua sponte reviewed the public records and concluded that National City Bank did not own the note at the time the suit was filed and therefore lacked standing. The trial court thereafter dismissed the action. We reverse. “A trial judge may not sua sponte dismiss an action based on affirmative defenses not raised by proper pleadings” as a dismissal under these circumstances “denies the parties due process because the [459]*459claim is being dismissed without ‘notice and an opportunity for the parties and counsel to be heard.’ ” Liton Lighting v. Platinum Television Grp., Inc., 2 So.3d 366, 367 (Fla. 4th DCA 2008) (quoting Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246, 1249 (Fla. 4th DCA 1998)).

Reversed and remanded for further proceedings.

CIKLIN, J., and WALSH, LISA S., Associate Judge, concur.

Free access — add to your briefcase to read the full text and ask questions with AI

STEVENSON, J.

National City Bank filed a foreclosure suit against Kristin A. Nagel, et. al.; the complaint alleged that the note and mortgage had been executed in favor of First Franklin Financial, but that plaintiff was now the “owner” of the note. No answer, pleading, or paper of any kind was filed by the defendants. Thereafter, National City Bank filed a “Motion to Substitute Party Plaintiff,” alleging the note had been assigned subsequent to the filing of the foreclosure suit. The trial court sua sponte reviewed the public records and concluded that National City Bank did not own the note at the time the suit was filed and therefore lacked standing. The trial court thereafter dismissed the action. We reverse. “A trial judge may not sua sponte dismiss an action based on affirmative defenses not raised by proper pleadings” as a dismissal under these circumstances “denies the parties due process because the [459]*459claim is being dismissed without ‘notice and an opportunity for the parties and counsel to be heard.’ ” Liton Lighting v. Platinum Television Grp., Inc., 2 So.3d 366, 367 (Fla. 4th DCA 2008) (quoting Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246, 1249 (Fla. 4th DCA 1998)).

Reversed and remanded for further proceedings.

CIKLIN, J., and WALSH, LISA S., Associate Judge, concur.

Cite This Page — Counsel Stack

Bluebook (online)

95 So. 3d 458, 2012 WL 3587358, 2012 Fla. App. LEXIS 14008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-city-bank-v-nagel-fladistctapp-2012.

Opinion

Related

Cite This Page — Counsel Stack