       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 27, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1061
                         Lower Tribunal No. 11-23164
                             ________________


                                Jorge Artiles,
                                    Appellant,

                                        vs.

                            Yurisbel Pino, et al.,
                                    Appellees.



     An Appeal from the Circuit Court for Miami-Dade County, Gill S. Freeman
and Darrin P. Gayles, Judges.

     Martyn W.D. Verster, for appellant.

     Walton Lantaff Schroeder & Carson LLP, and Michele E. Ready and Ian
Ronderos, for appellee Yurisbel Pino.


Before WELLS, ROTHENBERG, and EMAS, JJ.

     ROTHENBERG, J.
      Jorge Artiles (“Artiles”) appeals a final summary judgment entered in favor

of Yurisbel Pino (“Pino”) and Balboa Insurance Company (“Balboa”) insofar as it

prohibits Artiles from pursuing damages against his residential tenant, Pino, in

connection with a fire that damaged Artiles’s real property (“subject property”).

Because Artiles assigned away his rights in his mortgage with Aurora Loan

Services, LLC (“Aurora”) to recover damages from third parties for damaging the

subject property up to the unpaid balance on his mortgage debt, we affirm the trial

court’s entry of final summary judgment, which was based on its determination

that Artiles cannot maintain any further action against Pino for his alleged

negligence in causing the fire.

                                  BACKGROUND

      Artiles received a loan from Aurora for $180,044, which was secured by a

mortgage on the subject property. Artiles defaulted on the loan, and Aurora

initiated a foreclosure suit. In June 2010, after the foreclosure action was filed, the

subject property was damaged in a fire. At the time of the fire, the subject property

was covered by a lender-placed insurance policy that the lender, Aurora, had

purchased from Balboa.

      In September 2010, pursuant to the lender-placed insurance policy, Balboa,

the insurer, paid the lender, Aurora, $58,941.56 for the fire damage on the subject

property. In July 2011, while the foreclosure action was still pending, Artiles filed



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suit against his tenant, Pino, alleging that Pino had negligently started the fire, and

Balboa sought subrogation rights in Artiles’s claim against Pino and Pino’s

insurance provider.

      In May 2012, Aurora and Artiles settled the pending foreclosure action. In

their mediated settlement agreement, Aurora agreed to waive any deficiency

judgment against Artiles in the foreclosure case, Artiles agreed not to contest the

foreclosure, both parties agreed to a mutual release of any actions related to the

foreclosure, and the parties agreed that Aurora was entitled to the insurance

proceeds already obtained from Balboa.

      In October 2013, the trial court held a hearing on Artiles’s, Pino’s, and

Balboa’s motions for summary judgment regarding Artiles’s claims against Pino.

After the hearing, the trial court entered an order finding, relevant to this appeal, as

follows: (1) Artiles used his right to receive a benefit from Balboa to negotiate an

agreement with Aurora in the foreclosure action; (2) Balboa is equitably

subrogated to Artiles’s claim against Pino due to Balboa’s payment to Aurora on

behalf of Artiles; (3) Pino is willing to pay the amount of $58,941.56 to Balboa;

and (4) Artiles cannot maintain any action against any party for additional damages

caused by Pino’s alleged negligence because Artiles assigned his rights to any

insurance proceeds up to the unpaid balance on the mortgage to Aurora. The trial

court subsequently entered a final judgment reflecting those findings. Artiles



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appeals the final summary judgment only insofar as it prohibits him from

recovering additional damages from Pino.

                                    ANALYSIS

      The limited issue raised in this appeal turns on whether Artiles assigned to

Aurora his interest in pursuing any cause of action related to the fire that damaged

the subject property. Because in his mortgage Artiles clearly assigned his rights to

Aurora to recover for property damage up to the amount due on the mortgage loan,

we affirm the final summary judgment finding Artiles has no right to pursue any

action against Pino in connection with the damage the fire caused to the subject

property.

      We review a trial court’s entry of final summary judgment de novo. Volusia

Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

“Summary judgment is proper if there is no genuine issue of material fact and if

the moving party is entitled to a judgment as a matter of law.” Id.

      As a matter of law, a party cannot prevail on a cause of action where that

party has assigned away its interest in the cause of action. See Cont’l Cas. Co. v.

Ryan Inc. E., 974 So. 2d 368, 376 (Fla. 2008) (stating that “once transferred, the

assignor no longer has a right to enforce the interest because the assignee has

obtained all rights to the thing assigned”) (internal quotation omitted). While it is

typically true that personal causes of action are not assignable, see Ginsberg v.



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Lennar Florida Holdings Inc., 645 So. 2d 490, 496 (Fla. 3d DCA 1994), causes of

action relating to property damage may be assigned—especially where the

assignee has acquired title to the property. See Florida Power Corp. v. McNeely,

125 So. 2d 311, 318 (Fla. 2d DCA 1960); 3A Fla. Jur. 2d Assignments § 12

(2015).

      In the instant case, section 11 of the mortgage unambiguously states that

“[a]ll Miscellaneous Proceeds are hereby assigned to and shall be paid to

[Aurora].” The same section includes that such proceeds, in the event of property

damage, would either be used to restore or repair the property, or, in the event that

such repairs are not economically feasible, to pay off the balance on the

mortgage—with the excess (if any) going to Artiles. The section of the mortgage

labeled Definitions describes Miscellaneous Proceeds as “any compensation,

settlement, award of damages, or proceeds paid by any third party . . . for: (i)

damage to, or destruction of, the Property . . . .” Because all of the damages Artiles

seeks qualify as miscellaneous proceeds, we find that under the mortgage, Artiles

assigned his rights to such damages to Aurora, and thus Artiles cannot recover

damages against Pino for negligently starting the fire.

      In addition to section 11, section 5 of the mortgage specifically provides that

if Aurora acquires the property by foreclosure or otherwise, Artiles assigns his

rights to the proceeds from any insurance policies covering the subject property to



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Aurora. Because Artiles agreed in the mediated settlement agreement not to contest

the foreclosure action against him, the assignment clause in the mortgage as to

Artiles’s right to seek insurance proceeds from Pino’s insurer was also triggered.

      Based on the unambiguous assignment of Artiles’s interest contained in

sections 5 and 11 of the mortgage, Artiles is precluded, as a matter of law, from

seeking damages from Pino and Pino’s insurer due to Pino’s negligence which

allegedly caused the fire on the subject property.

      Although Artiles does not dispute that, pursuant to the mortgage, he

assigned his interest in the present litigation to Aurora, he contends that his

mediated settlement agreement with Aurora modified the mortgage. We disagree

as the mediated settlement agreement does not address or modify the original

mortgage’s assignment of miscellaneous proceeds to Aurora. We also find that the

remaining arguments raised by Artiles are without merit, and thus we decline to

discuss them here.

      Because the damages Artiles seeks to recover against Pino are

“Miscellaneous Proceeds” and Artiles assigned his rights to such proceeds under

the mortgage, which was foreclosed by Aurora, we affirm the final summary

judgment issued by the trial court.

      Affirmed.




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