ALMOND ENT. vs. BAYVIEW LOAN | Reversal and remand of commercial foreclosure where trial court entered summary judgment with pending discovery and discovery disputes

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ALMOND ENT. vs. BAYVIEW LOAN | FL 4DCA – Commercial foreclosure, Trial Court entered summary judgment with pending discovery and discovery disputes

ALMOND ENT. vs. BAYVIEW LOAN | FL 4DCA – Commercial foreclosure, Trial Court entered summary judgment with pending discovery and discovery disputes

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

ALMOND ENTERTAINMENT, INC.;
EDMOND BRIAN WAYMEL; and ZELJKO
BOGDANOVIC,

Appellants,

v.

BAYVIEW LOAN SERVICING, LLC, a
Delaware Limited Liability Co.,

Appellee.
___________________________________

EXCERPT:

Bayview Loan filed a commercial foreclosure action against Almond and
the guarantors, and it subsequently filed a motion for summary judgment. Almond filed
a motion to compel the deposition of Bayview Loan’s corporate representative. The
motion alleged that, despite its efforts, Almond had been unable to secure dates for the
deposition. Prior to the taking of the deposition, the circuit court granted final summary
judgment in favor of Bayview Loan.

In Brandauer v. Publix Super Markets, Inc., 657 So. 2d 932, 933 (Fla. 2d
DCA 1995), this court advised against entering summary judgment when the opposing
party has not completed discovery. Here, Almond informed the circuit court of the
outstanding discovery in its memorandum in opposition to summary judgment. Almond
argued that the deposition pertained to a question central to the validity of the suit,
namely whether Bayview Loan was the owner of the note and mortgage on the date it
filed suit. See Country Place Cmty. Ass’n, Inc. v. J.P. Morgan Mortg. Acquisition Corp.,
51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) (noting that party lacks standing to file
foreclosure action if it does not own or possess note and mortgage when it files suit);
see also Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281,
1285 (Fla. 2d DCA 2005) (stating that party’s standing is determined at time suit is filed
and cannot be acquired after the fact).

Almond has shown a good faith basis for questioning this point, and we
conclude that the circuit court erred by granting summary judgment when the facts of
the case had not been sufficiently developed. See Kimball v. Publix Super Markets,
Inc., 901 So. 2d 293, 295 (Fla. 2d DCA 2005). Accordingly, we reverse and remand for
further proceedings.

Reversed and remanded.

ALTENBERND, J., and RAIDEN, MICHAEL E., ASSOCIATE JUDGE, Concur.

[…]

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