NERBONNE, N.V., APPELLANT,
v.
LAKE BRYAN INTERNATIONAL PROPERTIES, INC., APPELLEE
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In this mortgage foreclosure case, the Florida appellate court reversed a summary judgment in favor of Lake Bryan International Properties because the trial court granted summary judgment when material issues of fact existed regarding ownership of the note and mortgage, and subsequently allowed the appellee to amend its complaint to add a new party claiming partial ownership of the note.
The court held that the trial court erred in granting summary judgment in favor of Lake Bryan because material issues of fact existed regarding ownership of the note and mortgage at the time of judgment, and the subsequent amendment of the complaint to add a new party with a competing ownership claim required vacation of the summary judgment.
[1] A party seeking summary judgment must demonstrate that it is the sole owner and holder of the note and mortgage when the motion is heard.
[2] A material issue of fact regarding ownership of a note and mortgage precludes summary judgment.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under the circumstances, we believe the trial court erred in granting the summary judgment and denying the motion for rehearing. Certainly, by the time of the rehearing, it was apparent that summary judgment in favor of Lake Bryan had been improper.”
Establishes the core holding that the summary judgment was improper given the disputed ownership issues that became apparent by the time of the rehearing.
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Join FLexlaw to unlock all legal intelligenceNerbonne, N.V. was sued by Lake Bryan International Properties in a mortgage foreclosure action on a note and mortgage. The amended complaint alleged …
The full statement of facts, procedural history, and disposition for this case are member content.
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GRIFFIN, Judge.
This is an interlocutory appeal1 from a partial summary final judgment in a mortgage foreclosure action adjudicating appellant, Nerbonne, N.V., liable to appellee, Lake Bryan International Properties, Inc., on the note and mortgage and fixing the amount of the indebtedness. We find merit in only one of the appellant’s many claims of error. The amended complaint affirmatively alleged (as it must) that appellee was the owner and holder of the mortgage. In its answer, appellant denied this allegation. In opposition to the motion for summary judgment, appellant filed a memorandum raising the issue of whether appellee was the holder of the note and mortgage, based principally on statements made by appellee in filings in other litigation that it had previously assigned its interest to third parties and that subsequent assignments had also taken place. Copies of these filings were attached to the memorandum. The record does not contain a transcript of the hearing on appellee’s motion for summary judgment held on May 13,1991, but a written order entering partial summary judgment was signed on the same date.
Appellant timely moved for rehearing,2 asserting, among other things, that it had recently searched the public records and discovered yet another assignment of the note and mortgage had been recorded — this one dated December 5, 1990 in favor of a Mr. James Hickman. After this motion for rehearing was filed, appellee began filing motions for leave to amend the complaint. The second of these proposed amended complaints added Hickman as a new party plaintiff and included allegations that Lake Bryan had assigned one-half of the note and mortgage to him. The trial court granted the appellee’s motion to amend the complaint but denied the motion for rehearing. Thus, Lake Bryan, which acknowledged it owned only one-half of the note, had a judgment in its favor for the full amount of the note and Hickman had his own separate pending claim for one-half of the note.
Under the circumstances, we believe the trial court erred in granting the summary judgment and denying the motion for rehearing. Certainly, by the time of the rehearing, it was apparent that summary judgment in favor of Lake Bryan had been improper. As appellee by then itself conceded, it had not owned the entire note and mortgage on May 13, 1991 and there was a material issue of fact as to ownership of the note and mortgage on that date.
Moreover, the trial court’s granting of the appellee’s post-judgment motion to amend the complaint to change the essential allegations on which the summary judgment was premised required vacation of the summary judgment.
REVERSED and REMANDED.
GOSHORN, C.J., and COBB, J., concur. . Fla.R.App.P. 9.130(a)(3)(C)(iv).
. Nerbonne also subsequently sought leave to amend its answer to assert many new defenses, including ownership of the note, but this motion also was denied. On this record, appellant has failed to convince us that the trial court’s decision to refuse leave to amend was an abuse of discretion.
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Nerbonne, N.V. v. Lake Bryan Int'l Props., 689 So. 2d 322 (Fla. 5th DCA 1997)…rbonne challenges the summary judgment entered by the trial court while the appellees provide several arguments in its favor.3 I. LAW OF THE CASE Appellees argue that this court’s previous decision in Nerbonne N.V. v. Lake Bryan Int’l Prop., Inc., 593 So. 2d 1206 (Fla. 5th DCA 1992) precludes Nerbonne from appealing the trial court’s order of summary judgment because the court considered the issues in this appeal in that earlier appeal. We disagree. The only issue addressed by this court in the earlier appea…1 / 2
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Nerbonne, N.V. v. Lake Bryan Int'l Props., 685 So. 2d 1029 (Fla. 5th DCA 1997)…d at this juncture independent of imputation of Figueredo’s knowledge to Nerbonne. REVERSED and REMANDED. W. SHARP and GRIFFIN, JJ., concur. . This action was the subject of an earlier appeal. Nerbonne, N.V. v. Lake Bryan Int’l. Properties, Inc., 593 So. 2d 1206 (Fla. 5th DCA 1992). . Although Waters was joined as a third-party defendant and filed defensive motions, it does not appear from the record that a disposition of the claim against him has been concluded by the trial court. . Hickman was not a par…