       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 19, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2469
                         Lower Tribunal No. 10-22236
                             ________________


                             CitiMortgage, Inc.,
                                    Appellant,

                                        vs.

                             Jorge Porter, et al.,
                                    Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.

     Akerman and Nancy M. Wallace (Tallahassee) and William P. Heller (Fort
Lauderdale) and Eric M. Levine (West Palm Beach), for appellant.

     The Ticktin Law Group and Kendrick Almaguer (Deerfield Beach);
Krinzman Huss & Lubetsky and Cary A. Lubetsky and Lynette Ebeoglu
McGuinness; Pila Law Group and Tomas A. Pila, for appellees.


Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.

     SALTER, J.
      CitiMortgage, Inc. (“CitiMortgage”), appeals a final summary judgment in

favor of Sun West Mortgage Company, Inc. (“Sun West”), regarding the relative

priority of the parties’ respective mortgage liens. CitiMortgage’s mortgage was

recorded before Sun West’s reverse mortgage, but a series of suspicious documents

and occurrences called that priority into question. Concluding that Sun West “was

a bona fide purchaser for value without notice of any alleged irregularities in the

public record chain of title,” and that CitiMortgage was “in the best position to

correct the official records and is the least innocent,” the trial court granted Sun

West’s motion for final summary judgment. For the reasons which follow, we

reverse.

      I.     Facts; Proceedings in the Circuit Court

             A.    CitiMortgage

      In 2005, appellee Jorge Porter (“Porter”) executed a promissory note and

first mortgage encumbering his residence. The mortgage was duly recorded, as

were a later loan modification agreement and various assignments culminating in

an assignment to CitiMortgage.

      In 2010, CitiMortgage’s attorneys at the time, David J. Stern, P.A., filed the

circuit court foreclosure action involved in the present appeal, and a lis pendens. A

year later, Stern withdrew as counsel and CitiMortgage’s present counsel were

substituted. But in 2011, two months after Stern’s withdrawal, the Stern firm



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allegedly executed a “Notice of Voluntary Dismissal with Prejudice and Release of

Lis Pendens.” The notice did not appear on the electronic docket at that time, but

the docket does reflect a voluntary dismissal on June 8, 2012, and the signed notice

and release of lis pendens was recorded in the public records on the same date.

      And in the interim, on February 6, 2012, a satisfaction of mortgage

purportedly executed in October 2009 by one of the interim mortgagees of record

(by assignment)—not by CitiMortgage—was recorded in the public records. The

borrower and mortgagor, Porter, paid the recording fee for the satisfaction.1

      On June 26, 2012, CitiMortgage moved to “strike the notice of dismissal

recorded on June 8, 2012 or . . . vacate the notice of dismissal.” CitiMortgage

contended “the notice of dismissal was not authorized by [CitiMortgage] and

should not have any prospective application . . . [because] it is clear that the notice

of dismissal was improperly recorded, it should be stricken, or in the alternative,

vacated by this Court.”

      On July 10, 2012, the trial court entered an order granting CitiMortgage’s

motion, providing “[t]he notice of voluntary dismissal recorded on June 8, 2012,

shall have no further force or effect.” CitiMortgage did not record the trial court’s


1 The purported satisfaction carried an execution and notarization date of October
30, 2009, some five months before CitiMortgage commenced its foreclosure
action. The document was not filed for recording by Porter until over two years
after that date of execution, and 22 months after the CitiMortgage foreclosure
commenced.

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order. CitiMortgage claims “[t]he original order disappeared from the court file—

which is why it was never recorded and why the record on the appeal needed to be

supplemented with a conformed copy.”

            B.     Sun West; Amended Foreclosure Complaint

      In May 2012, Porter’s mother applied for a reverse mortgage loan on

Porter’s residence, which was actually still owned by Porter and the subject of an

active foreclosure case. Porter conveyed the residence to his Mother on June 13,

2012. The reverse mortgage loan closed on August 21, 2012, six weeks after the

trial court’s order vacating the dismissal of CitiMortgage’s foreclosure action. The

reverse mortgage was recorded in September 2012, and an assignment of that

mortgage to Sun West was recorded in November 2012.

      In 2014, CitiMortgage amended its foreclosure complaint to add Sun West

and the assignor of the mortgage to Sun West as defendants. Sun West’s answer

and affirmative defenses alleged: (1) Sun West was a bona fide lender for value

without notice of CitiMortgage’s mortgage lien as of the time the Sun West

mortgage closed; (2) CitiMortgage’s lien is barred as “between two innocent

parties, the one who caused or allowed or could have avoided the loss, must bear

responsibility for the loss”; and (3) CitiMortgage is estopped from bringing its

claim of priority against Sun West.




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      Sun West moved for summary judgment, based on the recorded satisfaction

of CitiMortgage’s mortgage among the public records and on CitiMortgage’s

failure to record the trial court’s order vacating the voluntary dismissal and

discharging the lis pendens. CitiMortgage opposed the motion, filing an affidavit

of a CitiMortgage officer attesting that CitiMortgage had never satisfied or

released the Porter mortgage. CitiMortgage also filed an affidavit of the lead

general counsel of Nationwide Title Clearing, Inc. (“NTC”), shown in the

“Document Prepared By” entries on the recorded satisfaction of the Porter

mortgage. NTC’s affiant conducted an investigation of the alleged satisfaction of

mortgage and concluded that the satisfaction was not in fact “prepared or sent for

recording by NTC.”2      The affiant observed that a postal ZIP Code for NTC’s

address contained an extra digit, a format “which does not exist and could not print

out on any of NTC’s forms.”

      CitiMortgage also submitted summary judgment evidence in the form of

deposition excerpts from a representative of the Stern law firm, stating that the

firm did not prepare the notice of voluntary dismissal. Finally, CitiMortgage filed




2 The NTC counsel and affiant noted, for example, that the supposed satisfaction
of mortgage was notarized in Miami-Dade County, though NTC has no physical
presence and has not signed documents there, as NTC’s authorized agents in
Florida are required to sign in the presence of a Pinellas County Notary, where
NTC is located.

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the Miami-Dade Clerk of Court records department receipts indicating that Porter

recorded the satisfaction of mortgage himself.

      The trial court granted Sun West’s motion for final summary judgment,

concluding that as between the two parties, CitiMortgage was the “least innocent”

and thus required to bear the loss. This appeal followed.

      II.   Analysis

      We review an order granting a motion for summary judgment de novo.

Volusia County. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000). We consider the summary judgment evidence in the light most favorable to

the non-moving party, indulging any reasonable inferences in favor of that party.

Rocamonde v. Marshalls of MA, Inc., 56 So. 3d 863, 864 (Fla. 3d DCA 2011).

      Sun West contends that the affidavit of the attorney who served as closing

agent for the Sun West loan is dispositive. Her affidavit describes her title search

and her review of a title commitment from a title insurer. She states that (a) the

title insurer did not list the CitiMortgage mortgage on its June 18, 2012,

commitment, and (b) no one told her, prior to or during the closing on August 21,

2012, that the satisfaction of the CitiMortgage lien or the dismissal with prejudice

and release of the CitiMortgage lis pendens “were incorrect or had been

improperly recorded.”




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      Also in the record, however, were a number of suspicious entries and

occurrences placing Sun West and its originator/underwriter, on notice of

irregularities. First, the purported satisfaction of the CitiMortgage lien, dated

October 30, 2009, was recorded February 6, 2012, and was not executed by an

officer or agent of CitiMortgage. Between the date of the supposed execution (by

Mortgage Electronic Registration Systems, Inc., or “MERS”) of the satisfaction,

and the recordation of the purported satisfaction over two years later, an

assignment of the same note and mortgage was recorded. The assignment was

dated August 18, 2010, recorded September 14, 2010, supposedly prepared by

David J. Stern, Esq., and assigned the note and mortgage from MERS to

CitiMortgage. The satisfaction of the mortgage in 2009 is inconsistent with the

assignment of the note and mortgage nearly a year later.

      Second, when the closing agent referred in her affidavit to “public records,”

she did not limit the term to “Official Records,” used to refer only to a county

clerk’s register of recorded documents by “O.R. Book and Page.” The electronic

docket and documents annexed to the docket are also public records. Any review

of the docket of the 2010 CitiMortgage foreclosure case would have shown another

inconsistency—a motion by CitiMortgage to vacate the voluntary dismissal and

release of lis pendens filed only 18 days after it was recorded, and an order on that

motion (and thereby reinstating the lis pendens) docketed July 10, 2012.



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      The docket would have further disclosed that David Stern withdrew as

CitiMortgage’s counsel, and another firm was substituted in Stern’s firm’s place,

two months before his firm supposedly executed the notice of voluntary dismissal

and release of lis pendens, and over a year before that notice and release was

recorded. It would also have disclosed that substantial prosecution and progress

toward foreclosure continued to occur well after the purported satisfaction and

voluntary dismissal were executed.

      Third, the purported notice of voluntary dismissal dated in March 2011—

after the withdrawal of the alleged attorney and firm who signed it—carried no

certificate of service indicating service on counsel or delivery to CitiMortgage

(which executed an affidavit stating that such a document was never received by

CitiMortgage).3

      Fourth and finally, Porter certainly had knowledge that he was still a

defendant in the CitiMortgage foreclosure case, yet apparently never disclosed to

his own Mother, or his Mother’s lender, that they would be buying their way into a

lawsuit if they closed the loan to his Mother in 2012. The loan closing occurred in

August 2012, well after the docket entries in the electronic, readily-available

online records of the CitiMortgage foreclosure.


3  The purported notice also bears no electronic date/time filing information for
filing with the Circuit Court in March 2011; someone simply recorded it in the
Official Book fifteen months later (June 2012).

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      Porter’s quitclaim deed to his Mother during the pendency of the foreclosure

case and his own personal recordation of the purported satisfaction of mortgage

over two years after it was supposedly executed (an act denied in the affidavit of

NTC, the entity identified as the preparer) are additional indicia of bad faith on the

part of Porter.

      This summary judgment evidence creates triable, genuine issues of material

fact. In Lloyd v. Chicago Title Insurance Co., 576 So. 2d 310, 311 (Fla. 3d DCA

1990), this Court held that “the recording of a void or forged instrument cannot

create legal title or protect those who may claim under it.” (Citing McCoy v. Love,

382 So. 2d 647 (Fla. 1997), and three earlier Florida cases). On this record, the

single-page notice of voluntary dismissal and release of lis pendens was executed

and recorded without authorization by, or notice to, CitiMortgage. Moreover,

there was summary judgment evidence that the purported satisfaction of mortgage

was not prepared by an employee of NTC and was not signed by an authorized

representative of CitiMortgage.

      Additional evidence of chicanery, even if by a person or persons as yet

unidentified, is found in this record.    Someone removed the predecessor trial

judge’s order of July 10, 2012, from the official court records between the time the

trial judge signed it and the time “Order on Motion to Strike” was entered on the

electronic docket (but without the usual pdf copy of the order as part of the entry).



                                          9
In addition, an attorney from the Stern law firm testified that, at the date of the

purported (and subsequently-stricken) notice of voluntary dismissal and release of

lis pendens, the Stern law firm was “downsizing,” “winding down,” and not doing

that kind of work on the dates that the document was signed or recorded. He

testified:

       [A]fter March 31st, 2011, the only thing the law firm did was
       withdraw from cases. We weren’t representing any clients. We had
       no authority to file something like this and to my knowledge no
       attorney with the firm at that point between March and June and there
       were only a handful of attorneys maybe five and he was not one of
       were filing motions to withdraw our cases. [Sic].

       Our decision in Lloyd, which itself reversed a summary judgment in favor of

a subsequent mortgagee relying on a fraudulent instrument, applies to this record.

A factfinder could determine, though we do not decide the point at this juncture,

that a fraudulent or “intervening criminal act” induced Sun West’s detrimental

reliance. Lloyd, 576 So. 2d at 311.

       Reversed and remanded for further proceedings.

    ANY POST-OPINION MOTION MUST BE FILED WITHTIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINON MOTION MAY BE FILED
WITHIN FIVE DAYS THEREAFTER.




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