United States District Court, M.D. Florida, Jacksonville Division
PNC BANK, NATIONAL ASSOCIATION, a national banking association, Plaintiff,
NUMISMATIC SUBS, LLC, TREVOR BUBE, and THOMAS BUBE, Defendants.
MORALES HOWARD, UNITED STATES DISTRICT JUDGE
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
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.
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). 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.
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.)
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). PNC owns, and is in possession of, the
Second Note. Id.¶31.
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.
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.
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
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. 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.
Standard of Review
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). 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)).
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 ...