final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No.
J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for
L. Wallen of Wallen Kelley, Coral Gables, for appellee
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.
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.
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
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
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.
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. 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.
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