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Asset Recovery Group, LLC v. Cabrera

Florida Court of Appeals, Third District

November 22, 2017

Asset Recovery Group, LLC, and Wayne Ginter, Petitioners,
v.
Lazaro Cabrera, et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

         A Case of Original Jurisdiction - Prohibition Lower Tribunal No. 16-31938.

          BeharBehar, and Jaclyn Ann Behar and Sharita R. Young (Sunrise), for petitioners.

          Law Offices of Stephen M. Cohen, P.A., and Stephen M. Cohen (Palm Beach Gardens), for respondent Lazaro Cabrera.

          Before ROTHENBERG, C.J., and LAGOA and SCALES, JJ.

          ROTHENBERG, C.J.

         The defendants below, Asset Recovery Group, LLC, and Wayne Ginter (collectively, "the Receiver"), petition this Court for a writ of prohibition, challenging the trial court's non-final order denying the Receiver's motion to dismiss for lack of subject matter jurisdiction Counts IV and V of the amended complaint filed by Lazaro Cabrera ("Cabrera").[1] Because Cabrera was required to obtain leave of court from the trial court appointing the Receiver prior to filing his negligence action against the Receiver, we grant the petition for writ of prohibition, quash the order under review, and remand with directions to enter an order granting the motion to dismiss without prejudice.[2]

         I. FACTS AND PROCEEDINGS BELOW

         The petition relates to two cases filed in the Miami-Dade Circuit Court. First, Case No. 11-38747 (Judicial Section CA05) is a commercial foreclosure action, during which the trial court (Judge Schumacher) appointed the Receiver and ordered the Receiver to take control of the mortgaged property-an apartment complex located in Homestead, Florida ("the apartment complex"). Second, Case No. 16-31938 (Judicial Section CA06) is a premises liability action filed by Cabrera against the owners of the apartment complex and the Receiver for injuries sustained during a stabbing that occurred at the apartment complex on May 7, 2013, prior to the discharge of the Receiver in Case No. 11-38747. The facts in each case are as follows:

         A. Case No. 11-38747-Commercial Foreclosure

         In November 2011, U.S Century Bank filed a commercial foreclosure action against 1200 Homestead 72, LLC ("1200 Homestead"). Thereafter, U.S. Century Bank filed an emergency motion to appoint a receiver, or in the alternative, a motion for sequestration of rent. In February 2012, the trial court (Judge Schumacher) granted the motion and appointed the Receiver. The order appointing the Receiver provides that the Receiver shall take possession, custody, and control of the mortgaged real property-the apartment complex. Paragraph 16 of the appointing order provides:

Judicial Immunity. The Receiver and the Receiver's attorneys and agents: . . . (iii) shall not be liable to anyone for their good faith compliance with the duties and responsibilities as a receiver, or as attorney or agent for Receiver; and (iv) shall not be liable to anyone for their acts or omissions, except upon a finding by this Court that such acts or omissions were outside the scope of their duties or were grossly negligent.

         Samjack Homestead, LLC ("Samjack"), was substituted as the plaintiff for U.S. Century Bank. In March 2013, a final judgment of foreclosure was entered in favor of Samjack and against defendant 1200 Homestead and others. In April 2013, the apartment complex was sold at the foreclosure sale to Samjack, and on July 9, 2013, the Receiver was discharged.

         B. Case No. ...


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