Fed. Deposit Ins. Corp. v. Maria Gaby Soliz, Pierre Fregeau, Bruce Carr, Time Off, LLC, Case No: 2:14-cv-232-FtM-29CM
| Decision Date | 13 March 2015 |
| Docket Number | Case No: 2:14-cv-232-FtM-29CM |
| Court | U.S. District Court — Middle District of Florida |
| Parties | FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for The Royal Palm Bank of Florida, Plaintiff, v. MARIA GABY SOLIZ, PIERRE FREGEAU, BRUCE CARR, TIME OFF, LLC, WASHINGTON MUTUAL BANK, and THE VILLAGES AT EMERALD LAKES TWO, a condominium association, Defendants. |
This matter comes before the Court on the plaintiff's Motion for Summary Judgment and Final Default Judgment (Doc. #13) filed on September 2, 2014. Defendant JP Morgan Chase Bank, the only defendant to appear in this matter, has not filed a response, and the time to do so has expired.
On November 19, 2003, Pierre Fregeau (Fregeau) and Maria Gaby Soliz (Soliz) acquired real property located at 7785 Esmeralda Way, Naples, Florida (the "Property"), more particularly described as:
Unit M-201, The Villages at Emerald Lakes Two, a Condominium, according to the declaration of Condominium thereof, recorded in Official Record Book 1641, Page 1036, and as amended, of the Public Records of Collier County, Florida, together with an undivided share in the common elements appurtenant thereto.
The deed was recorded in the public records of Collier County on November 25, 2003.
On December 12, 2003, Fregeau and Soliz executed and delivered a mortgage securing a debt in the amount of $120,000 to Coastal Capital Corp. (the "Coastal Capital Mortgage"). The Coastal Capital Mortgage was recorded on December 29, 2003. On November 5, 2004, Time Off, LLC (Time Off), Fregeau, and Soliz obtained a revolving line of credit, not to exceed the principal sum of $250,000, from the Royal Palm Bank of Florida (Royal Palm). The line of credit was secured by a mortgage recorded on January 14, 2005 (the "Royal Palm Mortgage").
Fregeau and Soliz executed and delivered another mortgage securing a loan in the amount of $100,000 to the Sven A. Wasberg Trust on November 9, 2005 (the "Wasberg Mortgage"). The Wasberg Mortgage was recorded on November 23, 2005. On October 3, 2006, Washington Mutual Bank, FA (WaMu) granted a loan to Fregeau and Soliz in the original principal amount of $232,500. The loan was secured by a mortgage recorded on October 18, 2006 (the "WaMu Mortgage"). Proceeds from the loan secured by the WaMu Mortgage were used to pay-off and satisfy the Coastal Capital Mortgage andthe Wasberg Mortgage. A Satisfaction of the Wasberg Mortgage was recorded on November 14, 2006, and a Release of the Coastal Capital Mortage was recorded on December 4, 2006.
WaMu was closed by the Office of Thrift Supervision on September 25, 2008, and the Federal Deposit Insurance Corporation (FDIC) was named receiver. After the closure, JP Morgan Chase Bank (JP Morgan) acquired certain assets of WaMu, including all loans and loan commitments of WaMu, pursuant to a Purchase and Assumption Agreement with the FDIC. On October 29, 2008, JP Morgan filed an action to foreclose on the WaMu Mortgage in the Circuit Court in and for Collier County (the "State Court"). The Property was purchased at a judicial sale by JP Morgan, and a Certificate of Title reflecting JP Morgan as the owner of the Property was recorded on November 6, 2009.
On March 13, 2009, Royal Palm filed a complaint in the Circuit Court in and for Collier County, seeking to foreclose on the Royal Palm Mortgage. The State Court entered a Final Summary Judgment of Foreclosure in favor of Royal Palm on January 11, 2010, and foreclosed on any and all interests claimed by Fregeau, Soliz, Time Off, Bruce Carr (Carr), the managing member of Time Off, LLC, the Villages at Emerald Lakes Two, and WaMu. The Collier County Clerk of Court sold the Property to Royal Palm at a public auctionon February 10, 2010. Royal Palm then sold the Property to John and Mary Jane Bucci, via special warranty deed.
On August 12, 2010, JP Morgan filed a petition to intervene and a motion to set aside sale and judgment of foreclosure. JP Morgan alleged that it was the successor to the interest of WaMu and did not receive notice of the forfeiture proceeding initiated by Royal Palm. JP Morgan argued that the Royal Palm Foreclosure Judgment did not apply to JP Morgan because service on WaMu did not constitute service on JP Morgan, and requested that the State Court set aside the Royal Palm Foreclosure Judgment and the Royal Palm Certificate of Title.
The State Court denied JP Morgan's motion to set aside the sale and judgment and ordered Royal Palm to file a reforeclosure complaint. Royal Palm complied with the State Court's Order and filed a Verified Supplemental Complaint to Reforeclose on May 16, 2011. JP Morgan filed an Answer and Counterclaims alleging claims for equitable subrogation, an equitable lien, and unjust enrichment.
On November 17, 2011, JP Morgan filed a Motion for Partial Summary Judgment as to Lien Priority on Counterclaim, arguing that its interest in the Property was superior to Royal Palm's interest to extent the proceeds from the WaMu loan were used to satisfy the Coastal Capital loan. The State Court denied JP Morgan's motionon April 24, 2012, and determined that Royal Palm had a senior interest in the Property.
Royal Palm was closed by the Florida Office of Financial Regulation on July 20, 2012, and the FDIC was named receiver. On August 6, 2012, the FDIC served JP Morgan with a "Notice to Creditor to Present Proof of Claim" which notified JP Morgan that any claims against Royal Palm must be filed with the FDIC on or before October 24, 2012 (the "Claims Bar Date"). JP Morgan did not file a claim with the FDIC regarding the Property.
The FDIC filed a Notice of Substitution of Parties on April 3, 2014, and removed the action to this Court on April 25, 2014. The FDIC now moves for summary judgment against JP Morgan, the only defendant to appear in this matter, and entry of a final default judgment against Soliz, Fregeau, Time Off, Carr, WaMu, and the Villages at Emerald Lakes Two.
The FDIC argues that it is entitled to summary judgment on its claim for reforeclosure because the State Court has already determined that the Royal Palm Mortgage has priority over the WaMu Mortgage. The FDIC also argues that the Court lacks subject matter jurisdiction of JP Morgan's affirmative defenses and counterclaims because JP Morgan failed to file a timely claim with the FDIC.
Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Baby Buddies, Inc. v. Toys "R" Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is "material" if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A court must decide 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir. 2010). However, "if reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment." St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (). "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment." Allen v. Bd. of Pub. Educ., 4 95 F.3d 1306, 1315 (11th Cir. 2007).
The FDIC argues that it is entitled to foreclose on JP Morgan's interests in the Property because the Royal Palm Mortgage is superior to all of JP Morgan's recorded interests. In Florida, a senior mortgagee's rights are unaffected by the foreclosure of a junior mortgage. Garcia v. Stewart, 906 So. 2d 1117, 1121 (Fla. 4th DCA 2005). Thus, the FDIC may only foreclose on JP Morgan's interests in the Property if it establishes that the Royal Palm Mortgage is superior to all of JP Morgan's recorded interests in the Property.
The priority of competing interests in land is generally based on the order in which the interests are created. See Morris v. Osteen, 948 So. 2d 821, 826 (Fla. 5th DCA 2007). "The important caveat to this rule is that those acquiring rights later will havepriority if they took without 'notice of the first created rights.'" Id. (quoting F.J. Holmes Equip., Inc. v. Babcock Bldg. Supply, Inc., 553 So. 2d 748, 750 (Fla. 5th DCA 1989)). In order for a conveyance, transfer, or mortgage of real property, or of any interest therein, to be good and effectual against creditors or subsequent purchasers, it must be recorded in a county's "Official Records." Fla. Stat. § 695.01. See also U.S. Bank Nat'l Ass'n v. Farhood, 153 So. 3d 955, 958 (Fla. 1st DCA 2014). The sequence of official register numbers Fla. Stat. § 695.11.
Here, the undisputed evidence clearly establishes that the Royal Palm Mortgage has priority over the WaMu Mortgage. The Royal Palm Mortgage was recorded in ...
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