final until disposition of timely filed motion for rehearing.
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
Matthew Estevez, P.A., and Matthew Estevez; Jeffery H.
Papell, for appellee Florida Kalanit 770 LLC.
SCALES, LINDSEY, and LOBREE, JJ.
HSBC Bank USA 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
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.
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,  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.
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.
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.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.
STANDARD OF REVIEW
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 ...