Meb Loan Trust VI v. Albert Isaacs
CourtDistrict Court of Appeal of Florida
Date FiledOctober 7, 2026
Docket3D2025-1280
StatusPublished
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Full Opinion
Third District Court of Appeal
State of Florida
Opinion filed October 7, 2026.
Not final until disposition of timely filed motion for rehearing.
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No. 3D25-1280
Lower Tribunal No. 23-17090-CA-01
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Meb Loan Trust VI,
Appellant,
vs.
Albert Isaacs, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Reemberto Diaz, Judge.
McCalla Raymer Leibert Pierce, LLC, and Robinson Keith Ustler
(Orlando), for appellant.
Markowitz, Ringel, Trusty & Hartog, P.A., and Adrian Carlington
Delancy, for appellee Albert Isaacs.
Before SCALES, C.J., and FERNANDEZ, and REBULL, JJ.
REBULL, J.
In a mortgage foreclosure action must an incapacitated ward be
personally named as a defendant where a probate court has already
appointed a guardian to act on behalf of the ward’s real property? Or must
the guardian be substituted as a named defendant in place of the
incapacitated ward?
I.
MEB Loan Trust VI appeals an order dismissing defendant Albert
Isaacs from its foreclosure suit, contending the trial court erroneously
dismissed Isaacs under Florida Rule of Civil Procedure 1.260(a) and (b). We
review the dismissal de novo. Grove Isle Ass’n, Inc. v. Grove Isle Assoc.,
LLLP, 137 So. 3d 1081 (Fla. 3d DCA 2014); see also Hamza v. McLemore,
421 So. 3d 742, 743 (Fla. 5th DCA 2025) (“We review de novo the trial court’s
dismissal under Rule 1.260.”).
MEB filed this foreclosure action in May 2023 against Albert Isaacs,
among other defendants. Isaacs was a co-owner of the property, and he
executed the mortgage MEB is seeking to enforce. When MEB filed this
action, it knew that the probate court had already adjudicated Isaacs totally
incapacitated and appointed Adrian Delancy as Guardian for the property of
Isaacs as his Ward.
2
The probate court’s Letters of Plenary Guardianship of the Property
declare that Delancy had “full power” to, among other things, “take
possession of and to hold for the benefit of the Ward, all property and income
of the Ward.” The Letters empowered Delancy to administer and take
possession of Isaacs’ property, but they did not divest Isaacs of title or
ownership. In a later order, the probate court authorized Delancy “to file
pleadings in the foreclosure action . . . to protect the Ward’s interest in real
properties and business.”
Delancy filed an answer and affirmative defenses to the foreclosure
complaint “in his official capacity of Guardian of the Property of Albert
Isaacs.” Delancy later moved to dismiss Isaacs as a party defendant and
argued that MEB’s failure to substitute Delancy as party defendant was
required by Florida Rule of Civil Procedure 1.260(a)(1), and that any
judgment against Isaacs would be void. MEB responded that Isaacs, as a
record title property owner, was an indispensable party who could not be
substituted.
The trial court initially denied the motion to dismiss, but when Delancy
moved for reconsideration of the order, asserting that dismissal was
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mandatory under Rule 1.260, the court granted the motion for
reconsideration and dismissed Isaacs from the case. This appeal followed.1
II.
A.
The legal issue raised in this appeal is whether, under Florida Rule of
Civil Procedure 1.260, the trial court was required to dismiss MEB’s
foreclosure complaint because it failed to file a motion substituting Delancy
for Isaacs within ninety days after Delancy filed a statement that Isaacs was
incapacitated. The simple answer is no, and we conclude the trial court erred
in dismissing Isaacs as a party.
As happened here, an incapacitated person’s right to defend a lawsuit
can be delegated by court order to a guardian. See § 744.3215(3)(b), Fla.
Stat. (2025). When that happens, the ward or incapacitated person remains
an indispensable defendant in an action to foreclose their ownership interest,
1
During the pendency of this appeal, Delancy filed a suggestion of death,
indicating Isaacs died on June 1, 2026. We express no opinion on the
application of Rule 1.260 below, following the death of Isaacs and the filing
of any suggestion of death in the trial court. We merely take this opportunity
to note: “The courts of this state have a long-standing tradition in favor of the
disposition of an action on its merits. Further, this court has recognized that
rule 1.260 has been liberally interpreted to permit substitution beyond the
ninety-day time period. Moreover, we have explained that all doubt should
be resolved in favor of allowing trial upon the merits.” Sammons v. Adam
Greenfield, D.O., 270 So. 3d 534, 535 (Fla. 2d DCA 2019) (citation modified).
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but they are not “substituted” as a party by the guardian. Rather, the guardian
“may . . . defend on behalf of the . . . incompetent person.”2 See Fla. R. Civ.
P. 1.210(b) (emphasis added). As a record title holder, the ward must remain
as a named defendant.3 The guardianship did not have the legal effect of
divesting him of his ownership interest in the property; it merely empowered
the guardian to act on his behalf and for his benefit as it relates to the
property he owned.
Community Federal Savings & Loan Association of Palm Beaches v.
Wright, 452 So. 2d 638 (Fla. 4th DCA 1984), illustrates this proposition.
There, a lender filed a foreclosure action against the guardian of the minor
title holder. The complaint named as the sole defendant “Karen L. Wright as
guardian of the person and property of Robert W. Olsker, Jr.” When the
guardian failed to file responsive papers, a default final judgment was
entered, and the property was sold at a foreclosure sale.
2
The Florida Rules of Civil Procedure use the terms “[i]ncompetency” and
“incompetent” person. The Florida Guardianship Law, Chapter 744, Florida
Statutes, uses the terms “Incapacitated Person” and “incapacity.” We use
the term “incapacitated person” as that is also the terminology used by the
probate court in its orders adjudicating Isaacs and appointing Delancy. For
purposes of this opinion, we treat the phrase “incompetent person” as
synonymous with “incapacitated person.”
3
A precise and complete naming of a ward as a party defendant would be:
“Albert Isaacs, by Adrian Delancy, as guardian.” Or “Albert Isaacs, a ward,
by Adrian Delancy, as guardian of the property.”
5
When the minor was evicted, he (through a guardian ad litem) moved
to set aside the default judgment and foreclosure sale. The trial court granted
the motion and set aside the judgment and the sale. On appeal the Fourth
DCA affirmed and held in pertinent part that the minor4 was an indispensable
party as he was the holder of fee simple title to the property. Because the
minor was not named a party to the foreclosure suit, the judgment of
foreclosure was void. Id. at 641. The same can be said for a minor and an
incapacitated person, as Isaacs was in this case. 39 C.J.S. Guardian and
Ward §1 (2026) (“A guardian is a person who legally has the care of the
person or property, or both, of another person, who is incompetent to act for
themself.”). As the court did in Wright, we reiterate that an incapacitated title
holder to property, such as Isaacs, is an indispensable party in a suit to
foreclose on that property. See Meh Byron 4 LLC v. Federal Nat. Mortg.
Ass’n, 187 So. 3d 335, 335 (Fla. 3d DCA 2016) (“One who holds legal title
to mortgaged property is an indispensable party defendant in a suit to
foreclose a mortgage . . . .” (quoting Davanzo v. Resolute Ins. Co., 346 So.
2d 1227, 1228 (Fla. 3d DCA 1977)).
4
The court cited to 39 C.J.S. Guardian and Ward §179, at 359-60 for the
proposition that “A ward is a necessary party to a suit affecting his title to real
property and cannot be bound by such an action brought against the
guardian alone.” Community Federal Sav. & Loan Ass’n of Palm Beaches v.
Wright, 452 So. 2d 638, 641 (Fla. 4th DCA 1984).
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B.
Having answered the question posed at the outset that an
incapacitated ward who holds title to realty must be named as a party
defendant in a foreclosure suit, we further hold that Rule 1.260 did not require
dismissal in this case. Indeed, that rule did not apply here at all. The Rule
provides in pertinent part:
(a) Death.
If a party dies and the claim is not thereby extinguished, the court
may order substitution of the proper parties.
(b) Incompetency. If a party becomes incompetent, the court,
upon motion filed and served as provided in subdivision (a) of
this rule, may allow the action to be continued by or against that
person’s representative.
The Rule plainly covers a situation where an existing party to a civil
action dies or becomes “incompetent.” When that happens, the Rule
contemplates that the court in that action, upon proper filing and service of a
motion, may order substitution (in the case of death) or continuation of the
action against an “incompetent” person’s representative.
Here, all parties agree that MEB knew Isaacs had a guardian before it
filed the foreclosure action, because MEB tried to effect service of initial
process on Isaacs at the Guardian’s place of business. Indeed, service of
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process on the Guardian was legally correct under section 48.042 of the
Florida Statutes:
48.042 Service on incompetent.—
(1) Process against an incompetent shall be served:
(a) By serving two copies of the process to the person who has
care or custody of the incompetent or, when there is a legal
guardian appointed for the incompetent, by serving the guardian
as provided in s. 48.031.
In the end, the only issue that existed with MEB’s complaint was – at
worst – a misnomer. MEB, knowing he was incapacitated and had a
guardian, sued “Albert Isaacs” without qualification or any indication of his
incapacity. As we have noted, the better practice would have been for MEB
to note his incapacity and guardianship by, for example, naming him as:
“Albert Isaacs, a ward, by Adrian Delancy, as guardian of the property.” But
even with this misnomer, the rules of civil procedure provide a remedy:
RULE 1.120. PLEADING SPECIAL MATTERS
(a) Capacity. It is not necessary to aver the capacity of a party to
sue or be sued, the authority of a party to sue or be sued in a
representative capacity, or the legal existence of an organized
association of persons that is made a party, except to the extent
required to show the jurisdiction of the court. The initial pleading
served on behalf of a minor party shall specifically aver the age
of the minor party. When a party desires to raise an issue as to .
. . the capacity of any party to sue or be sued . . . that party shall
do so by specific negative averment which shall include such
supporting particulars as are peculiarly within the pleader’s
knowledge.
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In other words, Delancy could have raised by specific negative averment that
Albert Isaacs was incapacitated and was his ward, and that he was acting
as his guardian in the action. Lastly, the other remedy for misnomer of a party
is – of course – amendment by interlineation. “The long-standing general rule
in Florida with respect to amendments changing the description of a
defendant is that amendment by interlineation is proper and will relate back
to the original filing of the complaint if the mis-description [of the defendant]
is interpreted merely as a misnomer or defect in the characterization of the
party....” See Barone v. Scandinavian World Cruises (Bahamas), Ltd., 531
So. 2d 1036, 1039–40 (Fla. 3d DCA 1988) (citation modified).
III.
For these reasons, it was error for the trial court to dismiss Isaacs as a
party defendant on the ground that MEB failed to comply with Rule 1.260 by
failing to substitute the Guardian in his place.
Reversed and remanded.
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