Sr Acquisitions-Florida City, LLC v. San Remo Homes At Florida City, LLC, No. 3D11–2393.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: RAMIREZ
• Citation: 78 So.3d 636
• Parties: SR ACQUISITIONS—FLORIDA CITY, LLC, Petitioner, v. SAN REMO HOMES AT FLORIDA CITY, LLC, Respondent.
• Decision Date: 30 November 2011
• Docket Number: No. 3D11–2393.

78 So.3d 636

SR ACQUISITIONS—FLORIDA CITY, LLC, Petitioner,
v.
SAN REMO HOMES AT FLORIDA CITY, LLC, Respondent.

No. 3D11–2393.

District Court of Appeal of Florida, Third District.

Nov. 30, 2011.

[78 So.3d 637]

Shutts & Bowen LLP and Steven M. Ebner and Stephen T. Maher, Miami and Jacqueline B. Savir, for petitioner.

Concepcion Martinez & Bellido, Carlos Concepcion, Coral Gables, and Scott A Burr, for respondent; Jorge E. Otero, Coral Gables, for non party Dinuro Investments, LLC.

Before RAMIREZ, CORTIÑAS and FERNANDEZ, JJ.

RAMIREZ, J.

SR Acquisitions—Florida, LLC petitions for mandamus, requesting this Court direct the trial court to enter an order setting a foreclosure sale and deny any further requests for postponements of the date. We grant the petition in part, and direct that the trial court: 1) rule on the pending motion for relief from the order setting a foreclosure sale date; and 2) rule on the motion to vacate default judgment against San Remo Homes at Florida City, LLC.

This is a dispute over sale of property that was owned, and mortgaged, by the respondent, San Remo Homes at Florida City, LLC. San Remo, which is owned by three members, owned real property in Miami–Dade County, upon which it intended to construct and sell homes. The property was not developed, and making payments on the property's mortgage soon became difficult. Two of the members, Merici and Starmac, infused capital on multiple occasions to keep the mortgage current and avoid default. The third member, Dinuro Investments, LLC, did not make additional capital payments.

Merici and Starmac determined to restructure the debt and arrange for another entity, SR Acquisitions, to take over the property. Dinuro was offered, but did not accept, the opportunity to participate in SR Acquisitions. Merici and Starmac, who had established SR Acquisitions, used that entity to buy the loan from the bank. Merici and Starmac, as members of San Remo, also caused San Remo to default on the mortgage. After the default, SR Acquisitions sued for foreclosure of the loan. San Remo did not defend the resulting foreclosure action, because according to the majority members there were no meritorious defenses.

Because San Remo did not defend the lawsuit, a judgment of foreclosure resulted. Dinuro contends SR Acquisitions and its principals violated fiduciary duties and other legal requirements and essentially froze Dinuro out of San Remo and Dinuro's interest in the property. Dinuro contends the establishment of SR Acquisitions, SR Acquisitions' actions, and SR Acquisitions' objective, demonstrate the entire transaction is illegitimate and cannot go forward.

Dinuro filed a separate suit for breaches of legal duties, and in this suit, Dinuro attempted to file a derivative answer on behalf of San Remo, asserted counter-claims against its partners, and alleged claims against the bank and the principals of Merici and Starmac. In addition, Dinuro filed, but later withdrew, a motion to intervene in this suit. Lastly, and most relevant to the pending petition, Dinuro moved the trial court for an order vacating the foreclosure judgment and canceling the...