ARR INVESTMENTS, INC., A FLORIDA CORPORATION, ARR CHILD CARE, INC., A FLORIDA CORPORATION, ARISTA ACADEMY, INC., A FLORIDA CORPORATION, RAFAEL RODRIGUEZ AND ALEJANDRINO RODRIGUEZ, Appellants,
BAUTISTA REO US, LLC., Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Julie H.
Dorothy F. Easley, of Easley Appellate Practice, PLLC, Miami,
and John W. Zielinski, of Nejame Law, P.A., Orlando, for
D. Dell-Powell and Dean Mead, of Dean, Mead, Egerton,
Bloodworth, Capouano & Bozarth, P.A., Orlando, for
Investments, Inc., et al. (Appellants) appeal the trial
court's entry of final summary judgment in favor of
Bautista REO US, LLC, the Appellee (Bautista). We agree with
Appellants that a genuine issue of material fact remained
regarding Bautista's standing to enforce the promissory
note. Therefore, we reverse and remand for further
2006, Doral Bank made a loan to Appellants who executed a
promissory note, loan security agreement, and guaranties.
Subsequently, Doral Bank lost the note and executed a lost
defaulted on the note, and Doral Recovery II, LLC (Doral
Recovery) filed the initial complaint against Appellants,
asserting that it was authorized to enforce the note. While
the case was pending, the note was transferred to a number of
entities through a series of assignments.
Bautista, the final assignee in the chain of assignments,
filed an amended complaint. In the amended complaint,
Bautista alleged that it was reestablishing a lost note and
that it was authorized to enforce the note pursuant to
statutory requirements. To the amended complaint, Bautista
attached the assignments following the path of the lost note
from Doral Bank to Bautista, which included an assignment to
and from FDIC. Appellants subsequently filed affirmative
defenses, alleging that Bautista lacked standing to enforce
discovery, Bautista filed a motion for summary judgment, and,
in its response, Appellants maintained that Bautista lacked
standing, arguing that genuine issues of material fact
regarding the assignments precluded summary judgment. After a
hearing, the trial judge granted final judgment in favor of
Bautista, finding an absence of any genuine issue of material
fact. This appeal timely followed.
review a trial court's ruling on a motion for summary
judgment de novo. See Volusia Cty. v. Aberdeen at Ormond
Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary
judgment is proper if there is no genuine issue of material
fact and if the moving party is entitled to a judgment as a
matter of law. Id. (citing Menendez v. Palms W.
Condo. Ass'n, 736 So.2d 58 (Fla. 1st DCA 1999)).
"The burden to conclusively establish the nonexistence
of a disputed issue of material fact and entitlement to
judgment as a matter of law rests squarely with the
movant." Gee v. U.S. Bank Nat'l Ass'n,
72 So.3d 211, 214 (Fla. 5th DCA 2011). When reviewing an
order granting summary judgment, "[a]n appellate court
must examine the record in the light most favorable to the
non-moving party." Vander Voort v. Universal Prop.
& Cas. Ins. Co., 127 So.3d 536, 538 (Fla. 4th DCA
it is well-established that a plaintiff must prove its right
to enforce the note at inception of the suit and "as of
the time the summary judgment is entered." Beaumont
v. Bank of N.Y. Mellon, 81 So.3d 553, 555 (Fla. 5th DCA
2012). In order to do so, a plaintiff can submit "an
assignment from payee to the plaintiff or an affidavit of
ownership proving its status as holder of the note."
Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla.
5th DCA 2015). Of Appellants' many arguments that
Bautista lacked standing at both critical points, we find one
meritorious and dispositive of this appeal.
standing depended on a series of assignments. Appellants
argue that records attached to the amended complaint show
that Doral Bank-not Doral Recovery- owned the note when it
was assigned to FDIC. These records, relied upon by Bautista
to enforce the note, cast doubt on whether Doral Recovery
owned the lost note at case inception and whether Doral
Recovery had any rights in the lost note to convey to FDIC.
This conflict in the evidence created a material issue of
fact which precluded summary judgment. See Khan v. Bank
of Am., N.A., 58 So.3d 927, 928 (Fla. 5th DCA 2011).
Accordingly, the trial court erred in ...