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LLC v. Lauderhill Lending, LLC

Florida Court of Appeals, Fourth District

June 26, 2019

FLORIDA HOLDING 4800, LLC, Appellant,
v.
LAUDERHILL LENDING, LLC and LAUDERHILL MALL INVESTMENT, LLC, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Raag Singhal, Judge; L.T. Case No. CACE16-012986.

          Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for appellant.

          Todd L. Wallen of Wallen Kelley, Coral Gables, for appellee Lauderhill Lending.

          KLINGENSMITH, J.

         Florida Holding 4800, LLC appeals the trial court's order granting Lauderhill Lending, LLC's motion for summary judgment for foreclosure. The property that is the subject of the foreclosure dispute was originally owned by Lauderhill Mall Investment (LMI), who then sold it to Florida Holding. Florida Holding raises several points on appeal claiming the trial court erred in granting the summary judgment, but we affirm as to all issues.

         LMI filed a complaint to foreclose on the commercial mortgage, alleging that Florida Holding was in default of the promissory note. Florida Holding answered the complaint asserting affirmative defenses, as well as a compulsory counterclaim for rescission, fraud, negligent misrepresentation, and unjust enrichment among other things. In its counterclaim, Florida Holding alleged that LMI fraudulently misrepresented zoning requirements and their effect on leases with its tenant, the Broward Sheriff's Office (BSO). Florida Holding further alleged that these misrepresentations induced it to purchase the property and execute the promissory note and mortgage in question.

         LMI moved for summary judgment, supported by an affidavit from LMI's representative Carlos Segrera who stated that LMI was in physical possession of the note, that the note was endorsed in blank, and that he was prepared to present the note at the summary judgment hearing. Segrera also confirmed that Florida Holding was in default under the note and mortgage. Before the trial court heard the motion, LMI assigned the note and mortgage to Lauderhill Lending who was substituted as the new plaintiff "for all purposes."

         Lauderhill Lending then filed its own amended complaint for foreclosure while also seeking to re-establish the promissory note, which had been lost. Regarding the note, Lauderhill Lending alleged that LMI assigned the note to Ocean Bank, a non-party, who then assigned the note back to LMI. LMI in turn assigned the note to Lauderhill Lending, but Ocean Bank "lost or misplaced" the original note while it was in its possession. These allegations were corroborated by an affidavit from Rogelio Villarreal of Ocean Bank attesting to those facts.

         Florida Holding answered Lauderhill Lending's amended complaint with the same affirmative defenses and counterclaim that had been directed against LMI, asserting that LMI procured the mortgage and note by false pretenses and misrepresentations relating to BSO's lease on the mortgaged property. Since LMI was no longer a party following its assignment of the note to Lauderhill Lending, the trial court determined that this counterclaim would be considered a third-party claim.

         While the third-party claim against LMI was still pending, Lauderhill Lending moved for summary judgment on both the foreclosure and re-establishment of the lost note.[1] The motion stated in part:

2. Plaintiff relies on The Affidavits Filed in Support of this Motion for Summary Judgment, which establish the execution of the note and mortgage, the note's maturity, the existence and loss of the note, the defaults thereon and the balance presently due.
3. In further support of this Motion, Plaintiff relies on the pleadings of record.

         Florida Holding responded to Lauderhill Lending's motion claiming: the amount owed was in dispute, its affirmative defenses were unresolved and precluded summary judgment, and that Lauderhill Lending did not produce the original note. Florida Holding submitted an affidavit by its manager, Harry Dorvilier, who claimed LMI made various false representations about the condition of the property during the purchase negotiations. Specifically, Dorvilier claimed LMI stated the BSO leases were "true and correct and have not been modified," but he later learned those leases had been modified by a 2009 ordinance which required BSO to leave the property ...


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