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PNC Bank, National Association v. Numismatic Subs, LLC

United States District Court, M.D. Florida, Jacksonville Division

December 21, 2017

PNC BANK, NATIONAL ASSOCIATION, a national banking association, Plaintiff,
v.
NUMISMATIC SUBS, LLC, TREVOR BUBE, and THOMAS BUBE, Defendants.

          ORDER

          MARCIA MORALES HOWARD, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Plaintiff's Motion for Summary Final Judgment of Foreclosure filed on February 28, 2017 (Doc. 42; Motion). Although given ample time to respond to the Motion, the Defendants have not done so.[1] On June 4, 2017, the Court entered an endorsed order asking Plaintiff PNC Bank, National Association (PNC) to clarify whether the Motion relates to any claim other than the foreclosure claim in Count V of Plaintiff's First Amended Verified Complaint for Foreclosure of Mortgage and Security Interests and Related Relief (Doc. 7; Amended Complaint). See Endorsed Order (Doc. 48). In response, PNC confirmed that the Motion pertains only to Count V of the Amended Complaint. See Plaintiff's Response to Court Order (Doc. 50). The Motion is ripe for review.

         I. Background

         On November 18, 2013, in exchange for a loan from PNC in the amount of $290, 000.00 (the First Loan), Numismatic executed a promissory note. See Amended Complaint ¶¶15-16; Promissory Note (Doc. 7-1; First Note).[2] To secure the First Loan, Trevor Bube executed the Mortgage (Doc. 7-3), on a parcel of real property located at 8766 Country Creek Blvd., Jacksonville, Florida 32221 (the Property), the legal description of which is:

LOT 6 BLOCK 9, COUNTRY CREEK-UNIT TWO, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 35, PAGE(S) 44, OF THE PUBLIC RECORDS OF DUVAL COUNTY, FLORIDA.[3]

See Amended Complaint ¶¶19, 22; Mortgage at 2. Trevor Bube owns the Property and Thomas Bube resides on the Property. See Amended Complaint ¶7. The Mortgage was recorded on December 19, 2013, in Official Records Book 16638, Page 405 of the Official Records of Duval County, Florida. See Amended Complaint ¶19. PNC owns, and is in possession of, the First Note and Mortgage. Id.¶17, 59; Affidavit of Indebtedness (Doc.42-1; McKeon Aff.) ¶¶5-6.[4]

         On the same day, in exchange for a second loan from PNC in the amount of $25, 000.00 (the Second Loan), Numismatic executed a second promissory note. See Amended Complaint ¶¶29-30; Promissory Note (Doc. 7-7; Second Note).[5] PNC owns, and is in possession of, the Second Note. Id.¶31.

         The First and Second Notes specify that the failure to make any payments when due or Numismatic's insolvency constitutes a default. See First Note at 2-3 and Second Note at 2-3. Notably, the Mortgage is cross-defaulted and cross-collateralized with the First and Second Notes, such that a default under either Note constitutes a default under the Mortgage. See Mortgage at 6-7, 8; Amended Complaint ¶37; McKeon Aff. ¶18. The Mortgage provides that in the event of such a default, PNC may foreclose on the Property. See Mortgage at 6-7.

         Numismatic defaulted under the First and Second Loans by failing to pay amounts required by the loan documents when due, including: (1) the First Loan payments due on May 18, 2015, June 18, 2015, July 18, 2015, August 18, 2015, September 18, 2015, and October 18, 2015, and (2) the Second Loan payments due on June 18, 2015, July 18, 2015, August 18, 2015, September 18, 2015, and October 18, 2015. See Amended Complaint ¶¶38, 50, 60; McKeon Aff. ¶8. Numismatic also defaulted by virtue of the bankruptcy of its member, William Dougherty, Jr.. See Amended Complaint ¶¶38, 50, 60. Despite notice of the default and PNC's written demands for payment, id. ¶¶39-48, 51-55, 68, 70; McKeon Aff. ¶¶9-13; Reservation of Rights Letter to Dougherty and Trevor Bube (Doc. 7-11; ROR Letter); Fair Debt Notice Letter (Doc. 7-10; Fair Debt Notice), Numismatic and Trevor Bube have not paid all amounts due and owing under the First and Second Notes, see Amended Complaint ¶¶47, 49; McKeon Aff. ¶¶22, 27.

         PNC filed the Amended Complaint on December 28, 2015. See generally Amended Complaint. In the Amended Complaint, PNC asserts eight claims against Defendants Numismatic Subs, LLC (Numismatic), Trevor Bube, and Thomas Bube. Id. As relevant to the instant Motion, in Count V, PNC seeks to foreclose the Mortgage on the Property. Id. ¶¶125-136. Although PNC personally served the Defendants with process, no party responded. See Affidavit of Service (Doc. 11); Proof of Service (Doc. 12); Return of Service (Doc. 13). As such, on PNC's motions, see Plaintiff's Motion for Entry of Default (Doc. 17, Doc. 19 and Doc. 22), the Clerk of Court entered clerk's defaults with respect to each Defendant, see Clerk's Entry of Default (Doc. 18, Doc. 21 and Doc. 24; collectively, the Clerk's Defaults).

         On June 20, 2016, Numismatic and Trevor Bube each filed Suggestions of Bankruptcy. See Defendant Numismatic Subs, LLC's Suggestion of Bankruptcy and Imposition of Automatic Stay (Doc. 31; Numismatic's Suggestion) and Defendant Trevor Bube's Suggestion of Bankruptcy and Imposition of Automatic Stay (Doc. 32; Trevor Bube's Suggestion). Accordingly, on July 11, 2016, the Court stayed this case in its entirety. See Order (Doc. 35; Stay Order). On October 11, 2016, PNC advised the Court that, with respect to Numismatic, the bankruptcy court granted PNC relief from the automatic stay to proceed with its efforts to foreclose on the Property.[6] See First Status Report (Doc. 36) ¶¶3-4. On PNC's motion, see Motion to Lift Stay (Doc. 37), the Court lifted the Stay Order on November 23, 2016, to allow PNC to proceed with its foreclosure claims. See Order (Doc. 40) at 2. On January 31, 2017, PNC advised the Court that Trevor Bube had been granted a bankruptcy discharge and that his bankruptcy was closed. See Status Report (Doc. 41) at 2.

         II. Standard of Review

         Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).[7] Id. Thus, case law construing the former Rule 56 standard of review remains viable and is applicable here. An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must view all ...


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