IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
BLACK POINT ASSETS, INC.,
Appellant,
v. Case No. 5D16-1026
FEDERAL NATIONAL MORTGAGE
ASSOCIATION ("FANNIE MAE"),
A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE
UNITED STATES OF AMERICA,
Appellee.
________________________________/
Opinion filed June 16, 2017
Appeal from the Circuit Court
for Sumter County,
Michelle T. Morley, Judge.
Mark P. Stopa, of Stopa Law Firm, LLC,
Tampa, for Appellant.
Roy A. Diaz and Adam A. Diaz, of SHD
Legal Group, P.A., Fort Lauderdale, for
Appellee.
COHEN, C.J.
Black Point Assets, Inc. (“Black Point”) appeals the summary final judgment of
foreclosure against a property it purchased following a bankruptcy sale. Black Point
argues that the trial court erred in not dismissing the complaint for failing to plead and
prove that Federal National Mortgage Association (“Fannie Mae”) had a superior interest
in the property. We affirm because the complaint properly alleged all of the necessary
facts to state a claim for foreclosure, and Fannie Mae submitted sufficient summary-
judgment evidence to establish a prima facie claim for foreclosure. Black Point’s
additional objections to the summary judgment were not preserved for appeal.
Fannie Mae filed an initial complaint seeking foreclosure on a note and mortgage
signed by Mary S. Cehi, the original homeowner. The note was payable to Countrywide
Bank, FSB, and indorsed in blank. Attached to the complaint were assignments of the
note from Countrywide to Bank of America, N.A., and then from Bank of America to
Fannie Mae. The complaint further alleged that Cehi had defaulted on her obligations on
August 1, 2013; that Fannie Mae had accelerated the note; and that $121,650.33 were
due and owing on the note. Finally, the complaint alleged that Black Point was the current
owner of the property.
Black Point acquired the property in January of 2014 in a private sale for $2000,
following Cehi’s Chapter 7 bankruptcy. The bankruptcy trustee sold the property “As is,
Where is” with notice of the $121,650.33 lien on the property. Black Point’s “Trustee’s
Quitclaim Deed” specifically stated that the deed issued subject to all liens and
encumbrances. Fannie Mae’s interest had been recorded in 2007.
Black Point later moved to dismiss the complaint, alleging, among other things,
that the complaint failed to allege Fannie Mae’s interest was superior to Black Point’s
interest because a section of the complaint listing “inferior interests” did not list Black
Point. The trial court denied the motion. After Black Point answered the complaint, Fannie
Mae moved to strike Black Point’s affirmative defenses, and the court granted the motion.
Black Point’s affidavit in opposition to summary judgment was struck as well because it
was not based on personal knowledge.
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Fannie Mae then filed an amended motion for summary judgment and requested
the court to take judicial notice of the bankruptcy records, including the trustee’s intention
to sell the property “As is, Where is,” and the trustee’s quitclaim deed. A hearing was held
on the summary-judgment motion, which counsel for Black Point attended even though
there was no operative response to the motion for summary judgment after Black Point’s
affirmative defenses had been struck. The court granted Fannie Mae’s motion.
On appeal, Black Point argues that the court erred in denying its motion to dismiss
the complaint. This Court reviews an order on a motion to dismiss de novo. Deutsche
Bank Nat’l Tr. Co. v. Lippi, 78 So. 3d 81, 84 (Fla. 5th DCA 2012). The purpose of a motion
to dismiss is to test the legal sufficiency of the allegations made in the complaint. Bilbrey
v. Myers, 91 So. 3d 887, 890 (Fla. 5th DCA 2012). By rule, the complaint need only
include a “short and plain statement of the ultimate facts showing that the pleader is
entitled to relief.” Fla. R. Civ. P. 1.110(b). The elements of a foreclosure complaint are: 1)
an agreement, 2) a default, 3) an acceleration of the amount due, and 4) the amount due.
Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014).
Fannie Mae’s complaint clearly met all four elements. It attached the mortgage
showing an agreement between the parties. It also alleged a default and acceleration,
then specified the amount due. Black Point provides no support for its argument that the
plaintiff needs to allege the superiority of its interest in the property vis-à-vis named
defendants.
By naming a party in the complaint, the plaintiff provides notice to the named
parties that the plaintiff is asserting a superior interest. See U.S. Bank Nat’l Ass’n v.
Bevans, 138 So. 3d 1185, 1187 (Fla. 3d DCA 2014) (“Parties claiming title superior to the
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lien of a mortgage being foreclosed are not proper parties to the foreclosure suit.” (quoting
Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955, 957 (Fla. 3d DCA 2010))). If the
plaintiff succeeds on its claim, the foreclosure will extinguish the interests of parties
having an inferior interest. Bank of Am., N.A. v. Kipps Colony Condo. Ass’n, 201 So. 3d
670, 674–75 (Fla. 2d DCA 2016). Because every complaint seeking foreclosure
necessarily alleges that the plaintiff’s interest in the property is superior to the parties’
interests being foreclosed, we do not believe a complaint fails to state a claim simply
because it does not explicitly state as much. 1
Finally, Black Point argues that Fannie Mae’s summary-judgment evidence, which
established that Black Point took its interest in the property subject to, and with notice of,
Fannie Mae’s interest, was not proper summary-judgment evidence. 2 We find that this
issue is waived as Black Point has not established that the issue was ever raised below.
See, e.g., Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) (explaining that appellate
review is limited to “specific grounds raised at trial”). Black Point cites a number of cases
in which courts have held that a transcript of a summary-judgment hearing is not
necessary to preserve an issue for appeal. See, e.g., Houk v. PennyMac, Corp., 210 So.
3d 726, 730–31 (Fla. 2d DCA 2017). Yet, in those cases, the issue was presented to the
1 Alternatively, we note that the complaint’s “wherefore” clause requested the court
determine that its interest is “superior to any and all right, title or interest of the Defendants
herein.” This statement provides notice to the defendants of the relief sought.
2 Orders granting summary final judgment are reviewed de novo. Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary judgment
is appropriate where there is no genuine issue of material fact, and the moving party is
entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The motion must be based
on “summary-judgment evidence”—affidavits, answers to interrogatories, admissions,
depositions, and other evidence that would be admissible at trial. Id.
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court through some other motion or paper, allowing the appellate court to be sure that the
issue was actually raised and ruled on at some point. Here, Black Point’s affirmative
defenses were all struck along with its opposition to summary judgment. Therefore, there
is no way for this Court to determine whether Black Point ever challenged Fannie Mae’s
summary-judgment evidence during the proceedings below.
Even if the issue were preserved, Black Point’s argument lacks merit. The
summary-judgment evidence establishing the superiority of Fannie Mae’s interest
included records from the bankruptcy court, along with the recorded deed. Fannie Mae
requested the court to take judicial notice of the bankruptcy court records, which was
proper. See § 90.202(6), Fla. Stat. (2014) (providing for the judicial notice of records of
any court of the United States). The recorded deed was admissible as a public record
and also established Fannie Mae’s superior interest. See § 90.955, Fla. Stat. (2014); see
also §§ 695.01, 695.11, Fla. Stat. (2014) (explaining that priority of interests are
established by the order they are recorded). Therefore, Black Point’s argument fails on
its merits as well. In the absence of evidence in opposition to summary judgment, the
party moving for summary judgment need only establish its prima facie case. Butler v.
Butler, 870 So. 2d 239, 240 (Fla. 2d DCA 2004). We find that Fannie Mae has met that
burden. Accordingly, we affirm the summary final judgment order.
AFFIRMED.
BERGER, J., and NICHOLS, D., Associate Judge, concur.
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