Wells Fargo Bank, N.A. v. Dias, Case No. 2D19-3256

CourtCourt of Appeal of Florida (US)
Writing for the CourtSMITH, Judge.
PartiesWELLS FARGO BANK, N.A., as trustee for Carrington Mortgage Loan Trust, Series 2006 FRE1 Asset-Backed Pass-Through Certificates, Appellant, v. BRUCE DIAS, MARY LYNNE DIAS, CALVIN RUTLEDGE, and HARBOR TOWERS OWNERS ASSOCIATION, INC., Appellees.
Decision Date12 February 2021
Docket NumberCase No. 2D19-3256

WELLS FARGO BANK, N.A., as trustee for Carrington Mortgage Loan Trust,
Series 2006 FRE1 Asset-Backed Pass-Through Certificates, Appellant,
v.
BRUCE DIAS, MARY LYNNE DIAS, CALVIN RUTLEDGE,
and HARBOR TOWERS OWNERS ASSOCIATION, INC., Appellees.

Case No. 2D19-3256

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

February 12, 2021


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

Appeal from the Circuit Court for Sarasota County; Maria Ruhl, Judge.

Morgan L. Weinstein of Van Ness Law Firm, PLC, Deerfield Beach, for Appellant.

John C. Dent, Jr., and Jennifer A. McClain of Dent & McClain, Chartered, Sarasota, for Appellee, Calvin Rutledge.

No appearance for Appellees, Bruce Dias, Mary Lynne Dias, and Harbor Towers Owners Association, Inc.

SMITH, Judge.

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In this final chapter of the trilogy to foreclose property mortgaged by Bruce and Mary Dias, as husband and wife, Wells Fargo Bank, N.A., appeals the final judgment entered in favor of third-party purchaser Calvin Rutledge following a bench trial on remand from this court in Wells Fargo Bank, N.A. v. Rutledge, 230 So. 3d 550, 550 (Fla. 2d DCA 2017) (Wells Fargo II), and before that in Wells Fargo Bank, N.A. v. Rutledge, 148 So. 3d 533, 535 (Fla. 2d DCA 2014) (Wells Fargo I). Because the trial court failed to conduct a de novo trial on remand, we reverse and remand with instructions for the trial court to enter final judgment of foreclosure in favor of Wells Fargo and against the Diases and Mr. Rutledge.

After two trials and two appeals stretching over the last decade, we recognize that the complicated history of this case no doubt contributed to the confusion below, and so we will do our best to not add further confusion. Wells Fargo commenced this action in 2010 when it filed its lis pendens and sought to foreclose property subject to the note and mortgage executed by the Diases. A default judgment was entered against Mr. Dias. Mrs. Dias, appearing pro se, filed an answer and affirmative defenses, one of which was that the signature on the mortgage documents did not appear to be her handwriting. Harbor Towers Owners Association, Inc. (the HOA), also filed an answer to Wells Fargo's foreclosure suit. Other than the filing of the answer and affirmative defenses by Mrs. Dias, neither of the Diases otherwise appeared or participated in any of the foreclosure proceedings below.

During the pendency of Wells Fargo's foreclosure action, the HOA brought its own foreclosure suit in county court seeking to foreclose its lien for unpaid dues and assessments against the same property owned by the Diases and subject to the Wells

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Fargo foreclosure suit. The HOA named Wells Fargo as a party defendant in its county court foreclosure action and ultimately defaulted Wells Fargo and obtained a final summary judgment against the bank. The property was sold at a public sale with Mr. Rutledge the successful bidder.

In 2011, Mr. Rutledge, as the third-party purchaser, joined Wells Fargo's foreclosure action as a party defendant. He moved for summary judgment based upon theories of laches and equitable estoppel, arguing that regardless of Wells Fargo's superior interest, Wells Fargo had slept on its rights and was thus barred from asserting its superior interest against the property. The circuit court agreed and granted Mr. Rutledge's motion for summary judgment but did not enter a final order.

Meanwhile, in the HOA foreclosure case, Wells Fargo moved to vacate the HOA's final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(4). The county court recognized that the HOA, as a junior lienholder, could not foreclose on a superior interest and vacated the final judgment against Wells Fargo. Mr. Rutledge appealed and the circuit court, sitting in its appellate capacity, affirmed the order vacating the HOA's final judgment against Wells Fargo.

Having lost his appeal in the HOA action, Mr. Rutledge then filed a motion for final judgment against Wells Fargo in Wells Fargo's foreclosure action, raising Mrs. Dias's affirmative defense of forgery. He filed the affidavit of a forensic handwriting expert who, after comparing Mrs. Dias's signature on the mortgage Wells Fargo was seeking to foreclose with signatures found on an unrelated mortgage and her answer filed in Wells Fargo's foreclosure action, concluded that Mrs. Dias's signature on the mortgage in this case was a forgery. The circuit court granted Mr. Rutledge's motion for

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final judgment, relying on the summary judgment previously granted in Mr. Rutledge's favor and also finding that because Wells Fargo failed to provide any evidence to refute the affidavit establishing a forgery filed by Mr. Rutledge, summary judgment was appropriate on that ground too. Wells Fargo I followed.

In Wells Fargo I, we reversed the order granting Mr. Rutledge's first motion for summary judgment, which was granted on the theories of laches and equitable estoppel, largely for the same reason that the county court vacated the final judgment in the HOA lien foreclosure action—the HOA could not foreclose Wells Fargo's superior interest on the subject property. See Wells Fargo I, 148 So. 3d at 534-35. We also reversed the second final summary judgment with regard to the forgery defense, concluding there remained material issues of fact that prevented summary judgment. Id. We specifically explained:

In Wells Fargo's complaint, it alleged Bruce and Mary Dias executed a note and mortgage on the subject property and that they defaulted on the note and mortgage. Wells Fargo attached a copy of the note and mortgage, which contained the notarized signatures of Bruce and Mary Dias. There is a presumption that Mary Dias's signature is authentic under section 673.3081, Florida Statutes (2013). In [Mr.] Rutledge's motion for final judgment, he alleged that Mary Dias's signatures were forged and he filed the forensic document examiner's affidavit in support. [Mr.] Rutledge did not file any affidavits or other evidence establishing that Mary Dias's signatures on the unrelated mortgage or on her answer to Wells Fargo's complaint were genuine, nor did he request a stipulation from Wells Fargo. See § 92.38, Fla. Stat. (2013) (permitting a witness to compare "a disputed writing with any writing proved to the satisfaction of the judge to be genuine" (emphasis added)). Thus, there remains a material issue of fact as to the authenticity of Mary Dias's signature.

Id.

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On remand after Wells Fargo I, a bench trial was held. Neither of the Diases participated in the trial. Mr. Rutledge offered into evidence Mrs. Dias's deposition1 for the purpose of establishing the...

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