Gregory Sandefur v. RVS Capital, LLC, Rio Vista Saloon, LLC, and David Zwick
183 So. 3d 1258
| Fla. Dist. Ct. App. | 2016Background
- Rio Vista Saloon, LLC borrowed under a promissory note secured by mortgage; Gregory Sandefur and David Zwick personally guaranteed the note.
- First Southern Bank sued Rio Vista and the guarantors after a balloon payment defaulted and moved for summary judgment on the guarantees.
- Four days before the summary-judgment hearing, RVS Capital, LLC moved to substitute in as plaintiff, claiming it had been assigned the note; the motion attached no assignment or endorsed note.
- The court granted substitution; RVS’s counsel said he possessed the original note and an assignment but the assignment was not filed or served as summary-judgment evidence and was not shown to the court.
- The trial court entered summary judgment for RVS against Sandefur, reasoning substitution showed RVS stepped into the bank’s shoes; Sandefur appealed arguing RVS lacked standing at the time judgment was entered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substitution of plaintiff established standing to obtain summary judgment | Substitution places RVS in the bank’s shoes and thus establishes standing | Sandefur: substitution does not create standing; substituted plaintiff must prove standing when judgment is entered | Substitution alone does not establish standing; substituted plaintiff must prove standing at judgment entry |
| Whether RVS proved it was holder or assignee of the note at summary judgment | RVS: assignment exists (and was recorded); counsel had original documents | Sandefur: assignment was never filed or served as summary-judgment evidence within 20 days; court never saw it | RVS failed to present assignment as summary-judgment evidence; standing not established |
| Whether the trial court could judicially notice the recorded assignment to supply missing evidence | RVS: recorded assignment could be judicially noticed | Sandefur: judicial notice was not invoked per Evidence Code procedures and recording alone doesn’t mandate notice | Court: recording alone doesn’t justify judicial notice; procedures weren’t followed; judicial notice would not cure lack of summary-judgment evidence |
| Whether summary judgment was proper without assignment served per Rule 1.510(c) | RVS: late production and substitution suffice | Sandefur: Rule 1.510(c) requires service of summary-judgment evidence 20 days before hearing; assignment wasn’t served | Court: Rule 1.510(c) unmet; assignment not served timely; genuine issue of material fact on standing — summary judgment reversed |
Key Cases Cited
- Greene v. Bursey, 733 So. 2d 1111 (Fla. 4th DCA 1999) (guaranty follows the note)
- Miller v. Kondaur Capital Corp., 91 So. 3d 218 (Fla. 4th DCA 2012) (substituted plaintiff stands in original plaintiff’s shoes but must prove enforceability)
- Lewis v. J.P. Morgan Chase Bank, 138 So. 3d 1212 (Fla. 4th DCA 2014) (substitution does not create standing; standing evaluated at judgment)
- Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039 (Fla. 4th DCA 2015) (party must establish standing when final judgment is entered)
- Brandenburg v. Residential Credit Solutions, Inc., 137 So. 3d 604 (Fla. 4th DCA 2014) (discussing substitution and possession issues)
- Murray v. HSBC Bank USA, 157 So. 3d 355 (Fla. 4th DCA) (nonholder-in-possession may rely on assignment to enforce note)
- Viola v. U.S. Bank Nat’l Ass’n, 133 So. 3d 1018 (Fla. 4th DCA 2014) (summary-judgment evidence must be timely served)
- Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009) (appellate review limited to record; summary-judgment standards)
- Altchiler v. State, Dep’t of Prof'l Regulation, 442 So. 2d 349 (Fla. 1st DCA 1983) (appellate courts may not consider matters outside the trial record)
- Bull v. Jacksonville Fed. Sav. & Loan Ass’n, 576 So. 2d 755 (Fla. 1st DCA 1991) (recorded documents are not automatically proper subjects of judicial notice)