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1601 Bay LLC v. Wilmington Savings Fund Society, FSB

Florida Court of Appeals, Third District

November 20, 2019

1601 Bay LLC and Peter Coakley, Appellants,
Wilmington Savings Fund Society, FSB, etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An 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 appellants.

          Law Offices of Mandel, Manganelli & Leider, P.A., and Melisa Manganelli (Boca Raton), for appellee.

          Before SALTER, LOGUE and HENDON, JJ.

          SALTER, J.

         1601 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.

         Mr. 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 mortgage liens.

         Unfortunately, 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.

         The 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.[1] The purported satisfaction of mortgage was recorded in 2009, ten months after the transfer of the Property to Ms. Polo.

         The 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 mortgage.

         No 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[2] 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 court.

         Mr. 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.

         Mr. 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 ...

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