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HSBC Bank USA, National Association v. Florida Kalanit 770 LLC

Florida Court of Appeals, Third District

January 2, 2020

HSBC Bank USA, National Association, etc., Appellant,
v.
Florida Kalanit 770 LLC, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 15-28727, Pedro P. Echarte, Jr., Judge.

          McGlinchey Stafford PLLC, and Peter J. Maskow, and Kimberly Held Israel, and William L. Grimsley (Jacksonville), for appellant.

          Matthew Estevez, P.A., and Matthew Estevez; Jeffery H. Papell, for appellee Florida Kalanit 770 LLC.

          Before SCALES, LINDSEY, and LOBREE, JJ.

          LINDSEY, J.

         Appellant HSBC Bank USA[1] appeals an order granting Appellee Florida Kalanit 700, LLC's motion for involuntary dismissal in the underlying foreclosure action, which includes a count to re-establish a lost note. Because HSBC established that it was entitled to enforce the lost note, we reverse. Moreover, because HSBC's prima facie case for foreclosure is unrebutted by Florida Kalanit, we remand with instructions for the trial court to enter final judgment in HSBC's favor.

         I. BACKGROUND

         In August 2006, Yulesis Izquierdo executed a Promissory Note payable to WMC Mortgage Corp. The Note was secured by a Mortgage against the subject Property, which was executed by Izquierdo and Hector Smith (the "Borrowers"). In May 2010, the Borrowers defaulted under the Note and Mortgage by failing to make the payment due in May 2010 and all subsequent payments thereafter. The Borrowers were provided written notice of the default, and the default was not cured.

         The Mortgage and Note were eventually assigned to HSBC, the Appellant. The Assignment was recorded in June 2012. Pursuant to a Pooling and Servicing Agreement, and as a result of various mergers, [2] Bank of America took possession of the Note as a servicing agent and custodian of the Note. At some point thereafter, the Note was lost, and Select Portfolio Servicing, Inc. became the servicer.

         In August 2014, the Borrowers conveyed the Property to Angel Management Group via quitclaim deed. Angel Management Group subsequently conveyed the Property, again via quitclaim deed, to Florida Kalanit, the Appellee. In December 2015, HSBC commenced the underlying foreclosure action. The operative Complaint includes one count to foreclose the Mortgage and another count to reestablish the lost Note. HSBC attached several documents to the Complaint, including the 2012 Assignment, servicer Select Portfolio Servicing's lost note affidavit, servicer Bank of America's lost note affidavit, a copy of the Note, and the Mortgage. Florida Kalanit filed an answer and affirmative defenses. The Buyers failed to file any responsive pleadings, and a default was entered against them.

         The matter then proceeded to a non-jury trial, where only Florida Kalanit contested the foreclosure. HSBC objected to Florida Kalanit's standing as a third-party non-mortgagor, but the trial court allowed Florida Kalanit to proceed.[3]Following HSBC's case-in-chief, Florida Kalanit moved for involuntary dismissal, arguing that HSBC failed to establish standing to enforce the lost Note. The trial court agreed and granted involuntary dismissal based on a perceived conflict with the two lost note affidavits that HSBC had provided. This appeal followed.

         II. STANDARD OF REVIEW

         We review the trial court's involuntary dismissal order de novo, "viewing all of the evidence presented and all available inferences from that evidence in the light most favorable to the non-moving party." Deutsche Bank Nat'l Tr. Co. v. de Brito, 235 So.3d 972, 974 (Fla. 3d DCA 2017) (citing Maggolc, Inc. v. Roberson, 116 So.3d 556, 558 (Fla. 3d DCA 2013)). Moreover, it is firmly established in Florida that a defendant's motion for involuntary dismissal must be denied if the plaintiff has presented competent substantial evidence (even if conflicting) that establishes a prima facie case when considered in a light most favorable to the plaintiff. Valdes v. Ass'n I.N.E.D., H.M.O., Inc., 667 So.2d 856, 856-57 (Fla. 3d DCA 1996) (citing Tillman v. Baskin, 260 So.2d 509, 511-12 (Fla. 1972); Wygodny v. K-Site 600 Assocs., 644 So.2d 579, 581 (Fla. 3d ...


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