There is a minor.
On occasion, there is a document transferring property to a minor. If the transfer is pursuant to Chapter 710 of the Florida Statutes, the document will generally identify the custodian. Fla. Stat. § 710.111(e) (2017). Nevertheless, the conveyance to the minor should be reviewed in accordance with section 710.113 of the Florida Statutes to ensure that the transfer was valid. Fla. Stat. § 710.113 (2017). Likewise, property can be transferred to a minor via a probate action.
When a titleholder dies, the ownership interest in the property vests in the heirs subject to the administration of the estate. The personal representative or interested party of the decedent’s estate may bring a probate action to administer the estate. The pending probate action should identify all the possible beneficiaries and creditors of the estate. Once the probate action is completed, the estate should be fully administered and a distribution order should be recorded prior to the discharge of the personal representative of the estate. In review of the pending probate action or distribution order, it may become evident that a minor stands to inherit or inherited an interest in the decedent’s mortgaged property.
Litigating against a minor can be a worrisome task because a minor is considered a vulnerable party and there are certain rules in place to protect minors in litigation. For example, the Florida Rules of Judicial Administration 2.425(a), states in pertinent part that: “Unless authorized by subdivision (b), statute, another rule of court, or the court orders otherwise, designated sensitive information filed with the court must be limited to the following format: (1) The initials of a person known to be a minor . . . .” Fla. R. Jud. Admin. 2.425(a) (2017). However, one exception to the rule is “(6) The name of a minor in any document or order affecting the minor’s ownership of real property.” Fla. R. Jud. Admin. 2.425(b)(6) (2017). In fact, if the minor is a fee simple titleholder and the minor is not made a party of a foreclosure action, then the foreclosure judgment would be considered void. See Community Federal Savings & Loan Ass’n of the Palm Beaches v. Wright, 452 So. 2d 638, 641 (Fla. 4th DCA 1984)(concluding that “the judgment of foreclosure is void because the minor was never made a party.”).
In addition, it should be noted that, when serving an unmarried minor, section 48.041 of the Florida Statutes dictates that service should be made upon the parent, guardian, or individual appointed by the court to represent the minor. Fla. Stat. § 48.041(1) (2017). However, minors who were once married or are married, should be served in accordance with section 48.031 of the Florida Statutes. Fla. Stat. § 48.031(1) (2017).
Although litigating against a minor can be a worrisome task due to the protections afforded to minors, the minor should be properly named and served to ensure that the minor’s interest in the mortgaged property is appropriately foreclosed. Failure to properly foreclose a minor’s interest will likely result in a post foreclosure title issue that will impact the marketability of the property.