A quick glance at any court docket these days will reveal that many foreclosure actions are being prosecuted by someone other than the real party in interest. While it is generally acceptable for an authorized agent to bring a lawsuit on behalf of a principal in a civil action, how and to what extent is this rule recognized in the probate arena?

Generally, in actions by or against a probate estate, the personal representative of the estate is a necessary and indispensable party. There is a lot of decisional case law in Florida holding that in cases involving claims made by or against an estate, the estate and its survivors are the real parties in interest, and the personal representative is merely a nominal party.

The Florida Rules of Civil Procedure also provide that every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. Fla. R. Civ. P. 1.210(a) (emphasis added).

The application of this rule was examined last week in an opinion released by the Third District Court of Appeals in Juega v. Davidson –So.2d.–, 2009 WL 1211645 (May 6, 2009) which involved the decedent, Simon Davidson, whose estate was administered after he died in Spain in 1991. The decedent was survived by a son and a brother. Luis Juega was appointed administrator of the estate by the Spanish court.

A dispute arose wherein Juega alleged that prior to the decedent’s death, Nozomi Finance International Limited loaned the decedent’s brother five million dollars secured by a mortgage on the brother’s real estate located in Miami-Dade County. Juega asserted that the decedent was the director of Nozomi. Juega also argued that after the decedent’s death Mr. Juega became a director of Nozomi, which was an asset of the decedent’s estate.

In 1994, Nozomi filed suit against the decedent’s brother in Miami-Dade County seeking repayment of the note and foreclosure on the property securing the note. In 1995, Juega, as estate administrator, joined as a plaintiff in Nozomi’s lawsuit, and asserted additional claims on behalf of the estate for conversion and civil theft. In 2003, the Spanish court entered an order closing the decedent’s estate and finding the son to be his father’s sole heir. When the estate was closed in Spain, Juega was discharged from his responsibilities as administrator.

Eventually, in the Nozomi litigation, the decedent’s brother moved to dismiss the suit arguing that Juega lacked standing to pursue the litigation. According to the brother, once the Spanish estate was closed and Juega no longer was the estate administrator, Juega was not the real party in interest.

The son’s countered by arguing that Juega was essentially his appointed agent, no different than all the authorized agents who are bringing lawsuits on behalf of the banks in Florida’s foreclosure crisis. According to the son, Juega was pursuing the litigation for the son’s benefit and ratified all actions taken by Juega since the inception of the lawsuit.

The Third District Court of Appeals agreed with the son, and reversed the Miami-Dade probate court and remanded the case. As a practice point, the appellate court was especially persuaded by the affidavit filed by the son setting forth the essential facts pointing to the conclusion that Juega was authorized to act on the son’s behalf, and the son ratified each action of Juega.

Probate Records Research Steps

1. Determine where the decedent was living at time of death. 2. Find out where the records for that probate court jurisdiction at that time are now housed. Save yourself steps by using the Internet and the telephone to ask for and find the archive that you want. States and counties often have Web home pages. 3. If necessary, go to the archive. 4. Look in the index for the deceased’s name. This will usually be listed alphabetically by surname (last name). Find the docket number. Usually the date of probate is also listed, and this is usually fairly close to the date of death. 5. Make a list of files you wish to see and give these to the clerk, who will retrieve the files for you. If the files are old and are in a storage facility off-site, it might take several days for the request to be filled. Anticipate being required to pay a fee to obtain copies of the records. 6. If files are missing, and they sometimes are, probate record books might give some evidence of the probate. Probate record books are not likely to contain all the information that is/was in the actual file. 7. Examine the files and make notes or request copies of it. 8. Return the original file, as you found it, to the clerk. 9. Label and file your findings, being sure to note the name of the archive, address, telephone number, Web site address, and the date you did your research there.

Documents You Might Find in Probate Files

The documents found in a probate file will vary radically. They may range from a single letter to a sheaf of court and family documents. If the file represents proceedings to settle the estate of a deceased, its contents might include… • a will, if there was one • codicils (amendments) to the will, if any • a petition for an executor or administrator • probate of the will • a list of heirs or divisees • an inventory of the deceased’s probate estate at time of death • a report of the committee for partition when heirs cannot agree amongst themselves about how to divide the estate • receipts from heirs and divisees • a closing statement by the court