FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Sumter County, Michelle T. Morley,
P. Stopa, of Stopa Law Firm, LLC, Tampa, for Appellant.
Diaz and Adam A. Diaz, of SHD Legal Group, P.A., Fort
Lauderdale, for Appellee.
Point Assets, Inc. ("Black Point") appeals the
summary final judgment of foreclosure against a property it
purchased following a bankruptcy sale. Black Point argues
that the trial court erred in not dismissing the complaint
for failing to plead and prove that Federal National Mortgage
Association ("Fannie Mae") had a superior interest
in the property. We affirm because the complaint properly
alleged all of the necessary facts to state a claim for
foreclosure, and Fannie Mae submitted sufficient
summary-judgment evidence to establish a prima facie claim
for foreclosure. Black Point's additional objections to
the summary judgment were not preserved for appeal.
Mae filed an initial complaint seeking foreclosure on a note
and mortgage signed by Mary S. Cehi, the original homeowner.
The note was payable to Countrywide Bank, FSB, and indorsed
in blank. Attached to the complaint were assignments of the
note from Countrywide to Bank of America, N.A., and then from
Bank of America to Fannie Mae. The complaint further alleged
that Cehi had defaulted on her obligations on August 1, 2013;
that Fannie Mae had accelerated the note; and that $121,
650.33 were due and owing on the note. Finally, the complaint
alleged that Black Point was the current owner of the
Point acquired the property in January of 2014 in a private
sale for $2000, following Cehi's Chapter 7 bankruptcy.
The bankruptcy trustee sold the property "As is, Where
is" with notice of the $121, 650.33 lien on the
property. Black Point's "Trustee's Quitclaim
Deed" specifically stated that the deed issued subject
to all liens and encumbrances. Fannie Mae's interest had
been recorded in 2007.
Point later moved to dismiss the complaint, alleging, among
other things, that the complaint failed to allege Fannie
Mae's interest was superior to Black Point's interest
because a section of the complaint listing "inferior
interests" did not list Black Point. The trial court
denied the motion. After Black Point answered the complaint,
Fannie Mae moved to strike Black Point's affirmative
defenses, and the court granted the motion. Black Point's
affidavit in opposition to summary judgment was struck as
well because it was not based on personal knowledge.
Mae then filed an amended motion for summary judgment and
requested the court to take judicial notice of the bankruptcy
records, including the trustee's intention to sell the
property "As is, Where is, " and the trustee's
quitclaim deed. A hearing was held on the summary-judgment
motion, which counsel for Black Point attended even though
there was no operative response to the motion for summary
judgment after Black Point's affirmative defenses had
been struck. The court granted Fannie Mae's motion.
appeal, Black Point argues that the court erred in denying
its motion to dismiss the complaint. This Court reviews an
order on a motion to dismiss de novo. Deutsche Bank
Nat'l Tr. Co. v. Lippi, 78 So.3d 81, 84 (Fla. 5th
DCA 2012). The purpose of a motion to dismiss is to test the
legal sufficiency of the allegations made in the complaint.
Bilbrey v. Myers, 91 So.3d 887, 890 (Fla. 5th DCA
2012). By rule, the complaint need only include a "short
and plain statement of the ultimate facts showing that the
pleader is entitled to relief." Fla. R. Civ. P.
1.110(b). The elements of a foreclosure complaint are: 1) an
agreement, 2) a default, 3) an acceleration of the amount
due, and 4) the amount due. Kelsey v. SunTrust Mortg.,
Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014).
Mae's complaint clearly met all four elements. It
attached the mortgage showing an agreement between the
parties. It also alleged a default and acceleration, then
specified the amount due. Black Point provides no support for
its argument that the plaintiff needs to allege the
superiority of its interest in the property vis-à-vis
naming a party in the complaint, the plaintiff provides
notice to the named parties that the plaintiff is asserting a
superior interest. See U.S. Bank Nat'l Ass'n v.
Bevans, 138 So.3d 1185, 1187 (Fla. 3d DCA 2014)
("Parties claiming title superior to the lien of a
mortgage being foreclosed are not proper parties to the
foreclosure suit." (quoting Gonzalez v. Chase Home
Fin. LLC, 37 So.3d 955, 957 (Fla. 3d DCA 2010))). If the
plaintiff succeeds on its claim, the foreclosure will
extinguish the interests of parties having an inferior
interest. Bank of Am., N.A. v. Kipps Colony Condo.
Ass'n, 201 So.3d 670, 674-75 (Fla. 2d DCA 2016).
Because every complaint seeking foreclosure necessarily
alleges that the plaintiff's interest in the property is
superior to the parties' interests being foreclosed, we
do not believe a complaint fails to state a claim simply
because it does not explicitly state as much.
Black Point argues that Fannie Mae's summary-judgment
evidence, which established that Black Point took its
interest in the property subject to, and with notice of,
Fannie Mae's interest, was not proper summary-judgment
evidence. We find that this issue is
waived as Black Point has not established that the issue was
ever raised below. See, e.g., Aills v.
Boemi, 29 So.3d 1105, 1109 (Fla. 2010) (explaining that
appellate review is limited to "specific grounds raised
at trial"). Black Point cites a number of cases in which
courts have held that a transcript of a summary-judgment
hearing is not necessary to preserve an issue for appeal.
See, e.g., Houk v. PennyMac, Corp., 210
So.3d 726, 730-31 (Fla. 2d DCA 2017). Yet, in those cases,
the issue was presented to the court through some other
motion or paper, allowing the appellate court to be sure that
the issue was actually raised and ruled on at some point.
Here, Black Point's ...