final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 16-23620 Jacqueline Hogan Scola, Judge.
Nexterra Law and Steven M. Liberty and Eric A. Jacobs, for
Offices of Mandel, Manganelli & Leider, P.A., and Melisa
Manganelli (Boca Raton), for appellee.
SALTER, LOGUE and HENDON, JJ.
Bay LLC and Peter Coakley appeal a final summary judgment of
foreclosure and an order denying rehearing as to that final
judgment. The foreclosing plaintiff and appellee is
Wilmington Savings Fund Society, FSB ("Wilmington
Savings"). We affirm these rulings in all respects.
Coakley was the winning bidder at a 2014 foreclosure sale of
a condominium unit (the "Property") on Bay Road in
Miami Beach, Florida. After obtaining a certificate of title,
he quitclaimed the property to 1601 Bay LLC
("Owner"), an entity he controlled as manager. At
that point, Mr. Coakley and the Owner believed that they
owned and controlled the Property free and clear of other
all was not as it may have appeared. In 2007, Washington
Mutual Bank made a first mortgage loan to the then-owner of
the Property for $464, 000.00. A year later, as the South
Florida mortgage lending cycle was crashing, a
since-disbarred attorney served as closing agent for a sale
of the Property to a Ms. Lidia Polo. The closing statement
reported a sales price of $243, 000.00, a new first mortgage
loan by Wells Fargo Bank in the amount of $194, 400.00, and a
payoff of the existing first mortgage loan (the 2007
Washington Mutual mortgage) in the amount of $204, 769.00.
ultimately-revealed truth of the matter was that: (a) the
Washington Mutual first mortgage loan was not paid off, nor
were any proceeds remitted to Washington Mutual or its
successors in interest; and (b) a purported satisfaction of
the Washington Mutual mortgage, then owned by JPMorgan Chase
Bank, was fraudulent. The purported satisfaction of mortgage was
recorded in 2009, ten months after the transfer of the
Property to Ms. Polo.
summary judgment evidence submitted by Wilmington Savings
included (a) the verified allegations in the complaint; (b)
an affidavit from an operations unit manager at JPMorgan
Chase Bank establishing that the mortgage was not satisfied
by JPMorgan Chase Bank, that it had not received any payoff
proceeds, and that its "Payoff Tracking System"
would have reflected an order (but did not) for preparation
of a satisfaction of mortgage if the loan had indeed been
paid off; (c) an affidavit from a trust administrator of
Wilmington Savings establishing the defaults and outstanding
balances under the loan as well as the absence of any
business record pertaining to the mortgage loan authorizing
the preparation, execution, or recording of a satisfaction of
the mortgage; and (d) evidence of a recorded assignment of
the mortgage after the purported satisfaction of mortgage and
before Mr. Coakley made his successful bid to obtain title to
the Property upon foreclosure of the Wells Fargo second
summary judgment evidence was filed by Mr. Coakley or 1601
Bay before the scheduled hearing (Florida Rule of Civil
Procedure 1.510(c)). Mr. Coakley's later affidavit was
attached to his motion for rehearing. That affidavit stated
that he relied on the validity of the satisfaction of
mortgage recorded in 2009 and that he had no knowledge of any
other mortgage holder when he acquired title to the Property.
Counsel for Mr. Coakley and 1601 Bay did not attend the
duly-noticed hearing on the motion for final summary
judgment, and the final judgment was entered by the trial
Coakley and 1601 Bay then filed their motion for rehearing,
contending that: the movants had not coordinated the
scheduling of the summary judgment hearing; counsel for Mr.
Coakley and 1601 Bay had not seen the notice of hearing,
because it had been miscalendared by staff; and had the
hearing not been miscalendared, their attached response in
opposition (including Mr. Coakley's affidavit) would have
been filed and considered at the summary judgment hearing.
Coakley and 1601 Bay further argued that discovery was not
complete, and they attached a motion for continuance of the
summary judgment hearing (filed after that hearing) to their
motion for rehearing. The trial ...