Third District Court of Appeal
State of Florida, July Term, A.D. 2011
Opinion filed November 23, 2011.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D11-395
Lower Tribunal No. 08-59543
________________
Carlos Humberto Malagon a/k/a Carlos Malagon and Rosalba
Malagon,
Appellants,

vs.

Citimortgage, Inc. f/k/a Citifinancial Mortgage Company d/b/a
Citifinancial Mortgage Company (DE),
Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, David C. Miller, Judge.

Garry W. Johnson and Bruce K. Herman (Fort Lauderdale), for appellants.

Burr & Forman and Reid S. Manley and Christine Irwin Parrish (Orlando),
for appellee.

Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

SUAREZ, J.

Appellants, Carlos Humberto Malagon a/k/a Carlos Malagon and Rosalba
Malagon appeal the trial court’s order denying their motion to vacate final
judgment of foreclosure and to cancel and/or rescind sale. Appellee, Citimortgage,
Inc., concedes error on the trial court’s denial of appellants’ motion to vacate the
final judgment of foreclosure.1 Appellee consents to a reversal of the order and a
remand for further proceedings. Upon concession of error, this Court, therefore,
reverses the trial court’s denial of appellants’ motion to vacate the final judgment
of foreclosure and remands for further proceedings.

Reversed and remanded.

1 This Court appreciates appellee’s candor in conceding error

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2011

RODGER and LINA DUKE,
Appellants,

v.

HSBC MORTGAGE SERVICES, LLC,
Appellee.

No. 4D09-5183

[November 23, 2011]

POLEN, J.

Appellants, Rodger and Lina Duke (“the Dukes”), appeal the trial
court’s order granting final summary judgment of foreclosure in favor of
appellee, HSBC Mortgage Services, Inc. (“HSBC”). We reverse the trial
court’s order and hold that the record reflected genuine issues of
material fact, making summary judgment improper.

In May 2009, appellee, HSBC, brought an action against appellants,
the Dukes, to foreclose on a mortgage on real property in Palm Beach
County, Florida. The mortgage, as attached to the complaint, showed
that the “borrower” was the Dukes and the “lender” was First NLC
Financial Services, LLC (“First NLC”). The mortgage further showed that
Mortgage Electronic Registration Systems, Inc. (“MERS”) “is a separate
corporation that is acting solely as a nominee for Lender and Lender’s
successors and assigns.” HSBC’s complaint indicated that the mortgage
was assigned to it, and that it was the rightful owner and holder of the
note and mortgage. The Dukes alleged that HSBC did not attach an
assignment of mortgage to their complaint; however, a notice of
assignment was filed with the court on August 26, 2009, with a copy of
the assignment dated June 1, 2009, attached. HSBC alleged that the
original note and mortgage had been lost and were not in HSBC’s
custody or control.

On July 10, 2009, and July 17, 2009, the Dukes were served by
publication in the Palm Beach Daily Business Review. When the Dukes
failed to respond to the service by publication, HSBC moved for default.
On the same date as the motion for default, HSBC also moved for
summary judgment as to “the existence of a valid mortgage and
promissory note and [HSBC’s] right to a Judgment of Foreclosure.” On
September 11, 2009, the Dukes filed a motion for additional time to file a
response to the foreclosure complaint. Shortly thereafter, on September
30, 2009, default was entered against the Dukes. In November of 2009,
a n agreed order on motion for additional time to file response was
entered, allowing the Dukes to file their response to the foreclosure
complaint on or before November 12, 2009.

On November 18, 2009, a hearing was held on HSBC’s motion for
summary judgment. At the hearing, the original note was unable to be
located. The Dukes argued that the original note did not contain any
endorsements proving that the note and mortgage were assigned to
HSBC, thus summary judgment should not be granted because of an
issue of material fact precluding such a determination. However, the
trial court entered final summary judgment of foreclosure on November
18, 2009, and set a sale date of December 21, 2009. This appeal
followed.

The standard of review on an order “granting summary judgment is de
novo.” McLeod v. Bankier, 63 So. 3d 858, 860 (Fla. 4th DCA 2011).
Summary judgment is granted only when no genuine issues of material
fact exist and the party moving for summary judgment is, as a matter of
law, entitled to judgment. Id. Florida Rule of Civil Procedure 1.510(c)
governs summary judgment motions and proceedings. The rule states,
in relevant part:

The motion shall state with particularity the grounds upon
which it is based and the substantial matters of law to be
argued and shall specifically identify any affidavits, answers
to interrogatories, admissions, depositions, a n d other
materials as would be admissible in evidence (“summary
judgment evidence”) on which the movant relies. The movant
shall serve the motion at least 20 days before the time fixed
for the hearing, and shall also serve at that time a copy of
any summary judgment evidence on which the movant relies
that has not already been filed with the court. . . . The
judgment sought shall be rendered forthwith if the pleadings
and summary judgment evidence on file show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.

Fla. R. Civ. P. 1.510(c).

The Dukes argued that at the time the foreclosure complaint was
filed, the mortgage was held by First NLC, not appellee, HSBC. In its
complaint, HSBC alleged it owned and held the note and mortgage at the
time the complaint was filed. “When exhibits are attached to a
complaint, the contents of the exhibits control over the allegations of the
complaint.” BAC Funding Consortium Inc. v. Jean-Jacques, 28 So. 3d
936, 938 (Fla. 2d DCA 2010). Here, HSBC alleged in its complaint that it
“now owns and holds the Note and Mortgage,” but an assignment was
not attached to the complaint, supporting HSBC’s position. Instead, the
mortgage attached to the complaint showed First NLC as the lender,
creating discrepancies between the complaint and the attached exhibit.
Thus, at the time of the argument on the summary judgment motion,
genuine issues of material fact existed as to whether HSBC was the
proper owner and holder of the note and mortgage where First NLC was
named on the mortgage and evidence of an assignment was not included.

We therefore reverse the trial court’s order granting summary
judgment because genuine issues of material fact remain in dispute
regarding the owner and holder of the note and mortgage at the time the
complaint was filed.

Reversed.

GROSS and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu T. Sasser, Judge; L.T. Case No. 502009CA018957
XXXXMB.

Elsa M. Figueras of E. Figueras & Associates, P.A., Davie, and Peter J.
Snyder of Peter J. Snyder, P.A., Boca Raton, for appellants.
Enrico G. Gonzalez, Temple Terrace, for appellee.

Not final until disposition of timely filed motion for rehearing.

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Great job! FL Atty Carol C. Asbury

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2011

VENTURE HOLDINGS & ACQUISITIONS GROUP, LLC and VINCENZO GURRERA,
Appellants,

v.

A.I.M. FUNDING GROUP, LLC,
Appellee.
No. 4D10-832

REAL INVESTMENTS, LLC and ALEXANDER GONZALEZ,
Appellants,

v.

A.I.M. FUNDING GROUP, LLC,
Appellee.
No. 4D10-1159

REAL INVESTMENTS, LLC and ALEXANDER GONZALEZ,
Appellants,

v.

A.I.M. FUNDING GROUP, LLC,
Appellee.
No. 4D10-1848

[ November 23, 2011 ]

PER CURIAM.

In these consolidated appeals, appellants challenge three separate
final summary judgments of foreclosure entered in favor of appellee,
A.I.M. Funding Group, LLC. Appellants raise several arguments on
appeal, two of which merit discussion: (1) A.I.M., having assigned the
promissory note as collateral for a loan, was not the proper party in
interest to file suit, and (2) the trial court erred in granting summary
judgment for A.I.M. without receiving the original promissory note or
accounting for its absence. We find that because A.I.M. did not file the
original promissory note or account for its absence before the court
entered summary judgment, we must reverse the summary judgment
orders in each of the cases. We further find that A.I.M. lacked standing
to foreclose at the time it filed its complaints, but that some parties
waived the defense of lack of standing. Any remaining issues are
rendered moot by our decision and we decline to address them.

Factual Background

In April 2007, Venture Holdings & Acquisitions Group, Inc. and
Vincenzo Gurrera, individually, entered into a loan agreement with A.I.M.
and gave A.I.M. a mortgage on certain real property. Gurrera, Venture’s
president, signed the promissory note as a guarantor.

Likewise, Real Investments LLC entered into two loans with A.I.M, one
in January 2008 and another in May 2008. In connection with these
loans, Real gave A.I.M. a mortgage on two properties. Alexander
Gonzalez, Real’s president, signed the promissory notes as a guarantor.
There is no dispute that the borrowers failed to remain current on
their payments and defaulted on all three loans. Accordingly, A.I.M. filed
mortgage foreclosure actions on the three properties.

In Case No. 09-19636, A.I.M. sought to foreclose o n Venture’s
property. Gurrera filed a proper answer, but Venture did not. A.I.M.
moved for default against Venture and the court granted the motion.
This default has not been contested in this appeal.

In Case Nos. 09-018086 and 09-18089, A.I.M. sought to foreclose on
the two properties owned by Real. In Case No. 09-018086, Gonzalez filed
a proper answer, but Real did not. A.I.M. moved for a default against
Real and the court granted the motion. This default has not been
contested in this appeal. In Case No. 09-18089, however, both Real and
Gonzalez answered the complaint.

In each of its complaints, A.I.M. alleged that it “now owns and holds
the Mortgage Note and Mortgage.” Prior to initiating suit, A.I.M. assigned
its interest in the properties as collateral for a loan. This was indicated
by an allonge attached to each promissory note. The assignment was
still in effect when A.I.M. filed suit.1 The circuit court, in each case,
determined that no issues of genuine fact were raised by the defendants.
In each case summary judgment was entered against the defendants and
in favor of A.I.M. These consolidated appeals followed.

Analysis

“The standard of review of an order granting summary judgment is de
novo.” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So. 3d 1211,
1213 (Fla. 4th DCA 2009). We examine the record in the light most
favorable to the non-moving party. Id. The moving party must
conclusively show the absence of any genuine issue of material fact. Id.
An assignment of a promissory note or mortgage, or the right to
enforce such, must pre-date the filing of a foreclosure action. Jeff-Ray
Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990). A party
must have standing to file suit at its inception and may not remedy this
defect by subsequently obtaining standing. Progressive Exp. Ins. Co. v.
McGrath Cmty. Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005). “The
assignee of a mortgage and note assigned as collateral security is the real
party in interest, that he holds the legal title to the mortgage and note,
and that he, not the assignor is the proper party to file a suit to foreclose
the mortgage.” Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla. 1st
DCA 1966); see also A & B Discount Lumber & Supply, Inc. v. Mitchell,
799 So. 2d 301, 307-08 (Fla. 5th DCA 2001).

Here, before A.I.M. filed any of the foreclosure actions below, A.I.M.
assigned the promissory note and mortgage to a third party as collateral
for a loan. Thus, A.I.M. did not have standing to foreclose on any of the
properties at the time it filed suit. However, “th e entry of default
precludes a party from contesting the existence of the plaintiff’s claim
and liability thereon.” Fla. Bar v. Porter, 684 So. 2d 810, 813 n.4 (Fla.
1996) (citations omitted). Real, in Case No. 09-018086, was found to be
in default. Venture in Case No. 09-19636, was found to be in default.
Neither party may contest A.I.M.’s standing at the inception of the suit.
See Glynn v. First Union Nat’l Bank, 912 So. 2d 357, 358 (Fla. 4th DCA
2005) (holding that a homeowner waived any claim that the bank lacked
standing to foreclose where the homeowner never filed a motion or an
answer in the trial court).

But even a party in default does not admit that the plaintiff in a
foreclosure action possesses the original promissory note. See Lenfesty
v. Coe, 16 So. 277, 278 (Fla. 1894). “The decree pro confesso cannot be
extended to a confession of ownership of the note in complainant up to
the time of the master’s report and the confirmation thereof by the court,
and the authorities above cited sustain the view that a production of the
note or securities at the hearing is essential to show complainant’s right
to judgment then.” Id. A.I.M., in order to be entitled to summary
judgment, must establish that it is the proper holder of the promissory
note. Id.

In this case, A.I.M. failed to produce the original promissory note,
failed to account for its absence, and failed to present evidence to
otherwise establish it was the proper holder of the note. The allonge
established that the note was indorsed to a third party. A.I.M.’s failure to
produce the original promissory note, or account for its absence, created
a genuine issue of material fact. Lenfesty, 16 So. at 278. For this reason
alone, the summary judgments were improper in each of the cases.2

Accordingly, in Case No. 09-18089, we reverse the final summary
judgment and remand with directions that the action be dismissed in its
entirety without prejudice.

In Case No. 09-19636, we reverse the summary judgment and vacate
the final judgment of foreclosure. With regard to appellant Vincenzo
Gurrera only, we direct that the action be dismissed without prejudice.
With regard to Venture, however, we do not direct dismissal of the action.

In Case No. 09-018086, we reverse the summary judgment and vacate
the final judgment of foreclosure. With regard to appellant Alexander
Gonzalez only, we direct that the action be dismissed without prejudice.
With regard to Real, however, we do not direct dismissal of the action.
While A.I.M. is free to file the original promissory note and to move for
summary judgment in the actions that have not been dismissed as to
Venture and Real, we caution that the absence of Gurrera and Gonzalez
from those proceedings would leave those parties’ interests unaffected by
any judgment.

Reversed and Remanded.

TAYLOR, HAZOURI and LEVINE, JJ., concur.

* * *

Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Ana I. Gardiner, Judge(Carol, please
check the judges in the other cases) ; L.T. Case Nos. 09-018086 CACE,
09-18089 08, and 09-19636 CACE.

Carol C. Asbury, Fort Lauderdale, for appellants.

Thomas D. Oates of the Law Offices of Oates & Oates, P.A., Pompano,
for appellee.

Not final until disposition of timely filed motion for rehearing.

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