1601 BAY LLC AND PETER COAKLEY,

v.

WILMINGTON SAVINGS FUND SOCIETY, FSB, ETC.,

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 20092 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 court denied the motion for rehearing, and this appeal followed.

Analysis

Our review of the final summary judgment is de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

Granting every indulgence to Mr. Coakley and 1601 Bay (and their counsel) regarding their failure to appear at the original, duly-noticed summary judgment hearing, we have thoroughly examined the memorandum and affidavit in opposition to summary judgment, and the motion for continuance relating to discovery, both of which were attached to the motion for rehearing.³ These are unpersuasive. The motion for continuance refers to Wilmington Savings’ alleged failure to produce documents and a corporate representative pursuant to a trial court order of April 26, 2018. These directives were required to be completed by late June 2018. The motion for final summary judgment was not filed until January 8, 2019. Even then, Mr. Coakley and 1601 Bay did not demand further documents or depositions. Nor had Mr. Coakley and 1601 Bay initiated the further discovery described in the motion for continuance, in a period of over two years following the filing of the complaint. See Vancelette v. Boulan S. Beach Condo. Ass’n, 229 So. 3d 398, 400

(Fla. 3d DCA 2017) (party opposing summary judgment and seeking a continuance for discovery should demonstrate diligence, good faith, and the materiality of the discovery to be completed).

Regarding the opposition to summary judgment filed with the motion for rehearing, a review of the memorandum and the affidavit of Mr. Coakley does not disclose any genuine issue of material fact. Our precedent regarding reliance on fraudulent records in a chain of title is well established. See Lloyd v. Chicago Title Ins. Co., 576 So. 2d 310, 311 (Fla. 3d DCA 1990) (“[T]he recording of a void or forged instrument cannot create legal title or protect those who claim under it.”) (citations omitted). In the present case, Mr. Coakley and 1601 Bay were never in privity with Wilmington Savings or its predecessor mortgagees/assignors, and Wilmington Savings owed them no special duty of investigation or warning.

For these reasons, the final summary judgment and the order denying rehearing are affirmed in all respects.