5D10-3471 Beaumont v. Bank of New York

State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-3471

Case Date: 02/13/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

MARC D. BEAUMONT, Appellant, v. BANK OF NEW YORK MELLON, etc., Appellee. ________________________________/ Opinion filed February 17, 2012 Appeal from the Circuit Court for Volusia County, William A. Parsons, Judge. Marc D. Beaumont, Port Orange, pro se. Todd A. Armbruster of Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, for Appellee. PER CURIAM. Marc D. Beaumont appeals a final summary judgment entered by the trial court on a claim to foreclose a residential mortgage and recover on a promissory note executed in connection with the mortgage. We reverse. The final summary judgment in this case was entered in favor of Novastar Home Mortgage, Inc. ("Novastar"), a nonparty to the suit because of its prior withdrawal from the case. It is fundamental error to enter judgment in favor of a nonparty. Beseau v. Bhalani, 904 So. 2d 641 (Fla. 5th DCA 2005); Rustom v. Sparling, 685 So. 2d 90 (Fla. 4th DCA 1997). The defect, which is jurisdictional, can be raised by this Court sua Case No. 5D10-3471

sponte. Dep't of Envtl. Prot. v. Garcia, 36 Fla. L. Weekly D1664b (Fla. 3d DCA Aug. 3, 2011). The judgment would also have to be reversed even if entered in favor of appellee, The Bank of New York Mellon, as Successor Trustee Under Novastar Mortgage Funding Trust 2005-3 ("Mellon"). Mellon sought in the complaint to

reestablish the note and recover on it. See

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