220 So. 3d 566
Fla. Dist. Ct. App.2017Background
- Fannie Mae sued to foreclose a note and mortgage signed by Mary S. Cehi, attaching the note (indorsed in blank), mortgage, and assignments from Countrywide to Bank of America to Fannie Mae; complaint alleged default, acceleration, and $121,650.33 due.
- Black Point purchased the property in a private Chapter 7 trustee sale in January 2014 for $2,000; sale was "As is, Where is" and the trustee’s quitclaim deed stated the transfer was subject to all liens; Fannie Mae’s mortgage had been recorded in 2007.
- Black Point moved to dismiss, arguing the complaint failed to allege Fannie Mae’s interest was superior because Black Point was omitted from the complaint’s list of "inferior interests." The trial court denied the motion.
- The court struck Black Point’s affirmative defenses and affidavit opposing summary judgment for lack of personal knowledge; Black Point then had no operative response to Fannie Mae’s amended summary-judgment motion but counsel attended the hearing.
- Fannie Mae sought judicial notice of bankruptcy records (including the trustee’s sale and quitclaim deed) and relied on the recorded deed; the trial court granted summary judgment for Fannie Mae, and Black Point appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the foreclosure complaint was legally sufficient | Complaint pleaded agreement, default, acceleration, and amount due — sufficient under Rule 1.110(b) | Complaint failed because it did not explicitly allege Fannie Mae’s interest was superior to Black Point’s | Court: Complaint met foreclosure elements; no need to expressly plead superiority; naming parties gives notice; alternative: wherefore clause sought superiority |
| Whether a plaintiff must expressly allege its interest is superior to specific named defendants | Plaintiff: naming defendant and seeking foreclosure implies superiority; explicit statement unnecessary | Defendant: omission of Black Point from list of "inferior interests" shows lack of allegation of superiority | Court: No requirement to state superiority explicitly; foreclosure complaint necessarily alleges superior interest by naming parties and seeking relief |
| Admissibility/judicial notice of bankruptcy court records and recorded deed as summary-judgment evidence | Records and recorded deed are judicially noticeable/public records proving Fannie Mae’s recorded priority | Defendant: Challenged the propriety of that evidence on appeal (arguing it was improper) | Court: Judicial notice of federal court records is proper; recorded deed is admissible as public record and establishes priority |
| Preservation of challenge to summary-judgment evidence for appeal | Plaintiff contends evidence was improper and should not have supported summary judgment | Defendant contends issue was not preserved below because affirmative defenses and opposition were struck and no transcript/motion shows challenge | Court: Issue waived — appellant failed to show it raised the objection below; even if preserved, evidence was admissible and Fannie Mae met prima facie burden |
Key Cases Cited
- Deutsche Bank Nat’l Tr. Co. v. Lippi, 78 So. 3d 81 (Fla. 5th DCA) (de novo review of motion to dismiss)
- Bilbrey v. Myers, 91 So. 3d 887 (Fla. 5th DCA) (purpose of motion to dismiss tests legal sufficiency)
- Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825 (Fla. 3d DCA) (elements of a foreclosure complaint)
- U.S. Bank Nat’l Ass’n v. Bevans, 138 So. 3d 1185 (Fla. 3d DCA) (parties claiming superior title generally are not proper foreclosure defendants)
- Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955 (Fla. 3d DCA) (same principle regarding proper parties in foreclosure)
- Bank of Am., N.A. v. Kipps Colony Condo. Ass’n, 201 So. 3d 670 (Fla. 2d DCA) (foreclosure extinguishes inferior interests)
- Aills v. Boemi, 29 So. 3d 1105 (Fla.) (appellate review limited to grounds raised at trial)
- Houk v. PennyMac, Corp., 210 So. 3d 726 (Fla. 2d DCA) (discussing preservation without transcript where issue presented below)
- Butler v. Butler, 870 So. 2d 239 (Fla. 2d DCA) (moving party need only establish prima facie case in absence of opposition)
- Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla.) (summary-judgment standard and de novo review)