final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 12-31154, Samantha Ruiz-Cohen, Judge.
Akerman LLP, and Kristen M. Fiore (Tallahassee), Michael O.
Mena, and Alexandra M. Mora, for appellant.
Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for
ROTHENBERG, C.J., and EMAS and LUCK, JJ.
Grove Acquisition, LLC ("CGA") appeals from a final
judgment entered in favor of S&C Venture, etc.,
("S&C"), among others, who were the defendants
below in this breach of promissory note and foreclosure
action. Because we find that the law and the record fully
support the trial court's rulings, we affirm.
owns commercial property in Miami-Dade County. In September
2007, S&C executed a balloon payment promissory note
("the Note") for more than $7.9 million, secured by
a mortgage on its commercial property, to Mercantil
CommerceBank, N.A., f/k/a CommerceBank, N.A.
("Mercantil"). The loan provided for a maturity
date of August 20, 2012, and included an option of extending
the maturity date by five years, until August 20, 2017, if
certain requirements were met. S&C maintained an
operating account at Mercantil, from which Mercantil withdrew
S&C's monthly mortgage payments.
2010, after S&C defaulted on the Note, Mercantil and
S&C entered into a forbearance agreement, which
reaffirmed the original obligations in the loan documents
except as specifically modified in the forbearance agreement.
Mercantil agreed to forbear on any legal action until the
maturity date of the loan so long as, among other things,
S&C did not default again. It is undisputed that S&C
never missed a payment to Mercantil under the forbearance
confusion that spawned this litigation commenced in November
2011, when Mercantil sold the loan to Stabilis Fund II, LLC
("Stabilis"). Although it no longer held the Note
and was no longer in privity with S&C, Mercantil sent
S&C a letter ("goodbye letter") on November 14,
2011, via overnight mail, informing S&C that Mercantil
had sold the mortgage to Stabilis and directing S&C to
submit its payments to Stabilis at the address provided in
the letter. This letter also informed S&C that the
monthly payments would no longer be deducted from the
Mercantil operating account and provided a phone number to
call if S&C had any questions. Despite these
instructions, S&C continued to deposit sufficient funds
to cover its monthly payment obligations into the operating
account at Mercantil rather than sending the payments
directly to Stabilis.
not until December 2011 that S&C received a letter
("hello letter") from Stabilis's loan servicer,
which provided specific payment instructions. The hello
letter informed S&C that it would receive a billing
statement two weeks prior to a payment due date. However,
rather than receiving the promised billing statement, S&C
received a default notice from Stabilis on January 11, 2012,
informing S&C that the entire loan balance was
immediately due and owing because of existing defaults. In
the ensuing months, while the parties attempted to resolve
their disputes, S&C sent Stabilis all monthly payment due
under the terms of the loan documents, and Stabilis accepted
each payment, with the qualification that it was not waiving
any preexisting default.
19, 2012, S&C attempted to exercise its right to extend
the maturity date of the loan from August 20, 2012 to August
20, 2017, pursuant to the terms of the loan documents and the
forbearance agreement. To that end, S&C tendered the
required extension fee to Stabilis. Stabilis rejected the
tender and informed S&C on August 24, 2012, that the
maturity date would not be extended because S&C's
loan was in default.
Stabilis filed a two-count complaint against S&C for
breaching the Note and for foreclosure on the collateral
property. Stabilis argued, among other things, that S&C
failed to make its monthly payments in November and December
2011. S&C responded that Stabilis and its agents were
responsible for any delay in payments because they caused the
confusion that resulted in the delay. S&C also
counterclaimed, seeking a declaratory judgment finding ...