Latell v. Sovereign Bank et al

Filing 159

OPINION AND ORDER denying as moot 116 Motion to Strike Jury Demand; denying 117 Motion for Partial Summary Judgment; granting 136 Motion for judicial notice of death certificate; granting 137 Motion for judicial notice of foreclosure pleadings; granting in part and denying in part 140 Motion for summary judgment. The Clerk shall enter judgment in favor of Santander Bank on Counts I and II of the Fourth Amended Complaint because there is no evidence which can be made admissible as substantive evidence at trial to establish that Santander Bank made a fraudulent misrepresentation. The Clerk is further directed to terminate any pending motions and close the case. Signed by Judge John E. Steele on 3/22/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

FRANK
LATELL,
KATHLEEN
LATELL,
LATELL
CROIX
APARTMENTS, LTD, and LATELL
PEPPERTREE APARTMENTS, LTD,
Plaintiffs,
v.

Case No: 2:13-cv-565-FtM-29CM

SANTANDER BANK,
Defendant.
OPINION AND ORDER
This

matter

comes

before

the

Court

upon

review

of

the

following five motions: (1) defendant’s Motion for Partial Summary
Judgment (Doc. #117) to which plaintiffs filed a response in
opposition (Doc. #123); (2) defendant’s Motion to Strike Jury Trial
Demand

(Doc.

#116)

to

which

plaintiffs

filed

a

response

in

opposition (Doc. #127); (3) defendant’s Motion for Judicial Notice
of Lyle Preest’s Death Certificate (Doc. #136) to which no response
was

filed;

(4)

defendant’s

Motion

for

Judicial

Notice

of

Foreclosure Pleadings (Doc. #137) to which no response was filed;
and (5) defendant’s Motion for Summary Judgment (Doc. #140) to
which plaintiffs filed a response in opposition (Doc. #147).
These matters are ripe for review.

I.
As

an

initial

matter,

defendant

asks

the

Court

to

take

judicial notice of the Certificate of Death of Lyle Walter Preest
(Doc. #136) and certain documents from the state court foreclosure
action that are attached to its motion (Doc. #137).

Plaintiffs

did not file a response and defendant indicates that plaintiffs
have no objection to the relief sought in these motions.
#136 at p. 3; Doc. #137, p. 4.)

(Doc.

These motions will be granted,

and the Court will take judicial notice of the items pursuant to
Fed.

R.

Evid.

201.

Dippin'

Dots,

Inc.

v.

Frosty

Bites

Distribution, LLC, 369 F.3d 1197, 1204 (11th Cir. 2004); United
States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).

II.
Plaintiffs’ Fourth Amended Complaint (Doc. #85) is now the
operative pleading in this case.

Plaintiffs Frank Latell (Frank),

Kathleen Latell (Kathleen), Latell Croix Apartments, Ltd. (Croix
Ltd.), and Latell Peppertree Apartments, Ltd. (Peppertree Ltd.)
allege claims for fraudulent misrepresentation (Count I) and fraud
in the inducement (Count II) against defendant Santander Bank
National Association (Santander Bank).
Santander

Bank

filed

two

summary

judgment

motions,

one

seeking partial summary judgment against plaintiffs Frank and
Kathleen because they do not have standing to bring this action
(Doc. #117), and the second asserting there is no evidence as to

- 2 -

several elements of the causes of action (Doc. #140).

Plaintiffs

respond that the Court has already determined that Frank and
Kathleen have standing (Doc. #123), and that each suffered a
distinct injury that gives them standing to bring the instant
action.

(Id.)

Plaintiffs further respond that Santander Bank

cannot prove it did not make the misrepresentation, and there are
genuine issues of material fact still in dispute which prevent
summary judgment.

(Doc. #147.)

A. Summary Judgment Standard
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.
2004) (citing Anderson, 477 U.S. at 251).

- 3 -

In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).

“If a reasonable fact finder

evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
B. Basic Facts Underlying Fraud Claims
Plaintiffs’ claims arise out of the default and eventual
foreclosure

of

two

commercials

loans

made

to

Croix

Ltd.

and

Peppertree Ltd., both Florida limited partnerships in which Frank
is the general partner and Kathleen is the limited partner.
#85, ¶¶ 5, 7, 14, 31; Doc. #96, ¶¶ 5, 6, 8, 9.) 1

1

(Doc.

Fannie Mae owned

A Supplemental Amendment to the Fourth Amended Complaint
(Doc. #96) corrects prior allegations and clarifies that only Frank

- 4 -

and held promissory notes and mortgages (the “loans”) of Peppertree
Ltd. and Croix Ltd., which were secured by apartment complexes
owned by Croix Ltd. and Peppertree Ltd.

(Doc. #85, ¶ 14.)

The

loans were serviced by Santander Bank, who also owned and held the
notes and mortgages at times.

(Id. ¶ 15; Doc. #99, ¶¶ 14-15; Doc.

#116-1.)
Plaintiffs allege that Santander Bank purposefully made a
false statement of fact to their agent Lyle Preest (Mr. Preest) in
order to induce plaintiffs to default on the loans.
¶¶ 44-46, 51-53.)

(Doc. #85,

Specifically, plaintiffs allege that on April

10, 2010, Mr. Preest spoke to Brook Radcliffe (Ms. Radcliffe), an
agent of Santander Bank’s defaulted loan department, seeking to
negotiate a modification of the subject loans.

(Id. ¶ 19.)

Plaintiffs allege that Ms. Radcliffe informed Mr. Preest that
“Santander would modify the mortgage loans if they were in default,
but until they were over forty-five (45) days past due, Santander
would not even consider a modification.”

(Id. ¶ 21.)

Plaintiffs

assert they purposefully defaulted on the loans in reliance on
Santander Bank’s statements.

(Id. ¶ 22.)

Thereafter, Santander

Bank refused to modify the loans, and as a result plaintiffs lost
the apartment complexes to foreclosure and are allegedly liable
for the deficiency on the loans.

(Id. ¶¶ 48, 55.)

is the general partner for each entity, and only Kathleen is the
limited partner for each entity.

- 5 -

C. Constitutional Standing of Frank and Kathleen
Santander Bank seeks partial summary judgment as to the
individual claims by Frank and Kathleen, asserting both lack
standing to assert claims in their own names for injuries sustained
by the limited partnerships Croix Ltd. and Peppertree Ltd.
#117.) 2

Santander Bank alleges

the undisputed

(Doc.

material facts

establish that Frank and Kathleen have not suffered an injury-infact that is separate and distinct from that suffered by the other
partners of Croix Ltd. and Peppertree Ltd.; that no deficiency
judgments have been entered, or even sought, against Frank or
Kathleen; that Kathleen, as a limited partner, cannot be subject
to a deficiency judgment, and Frank’s alleged injury based on
potential liability is insufficient to confer standing and not
ripe for adjudication.

2

Subject matter jurisdiction challenges are addressed in a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1). Aqua Log,
Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d
1055, 1058 (11th Cir. 2013); Goodman v. Sipos, 259 F.3d 1327, 1331
n.6 (11th Cir. 2001).
When a motion to dismiss is based on a
factual challenge to subject matter jurisdiction and the
jurisdictional basis of the claim is intertwined with the merits
of the case, the court applies the Rule 56 summary judgment
standard in determining whether dismissal is appropriate.
Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th Cir. 1990).

- 6 -

(1)

Prior Decision on Motion to Dismiss

Plaintiffs

first

respond

that

the

Court’s

denial

of

defendant’s earlier motion to dismiss for lack of standing is
controlling.

The Court disagrees.

Defendant previously argued in its Motion to Dismiss Fourth
Amended Complaint that Frank and Kathleen lacked standing because
they were not the owners of the properties that secured the loans
or the named borrower on the loans.

(Doc. #87, pp. 11-12.)

In

finding that the Fourth Amended Complaint adequately alleged that
Frank and Kathleen had standing, the Court noted “as general
partners of Croix and Peppertree apartments, Frank and Kathleen
are

subject

partnership.”

to

liability

for

(Doc. #95, p. 10.) 3

the

obligations

of

the

However, the nature and extent

of plaintiffs’ burden to establish standing is a function of the
stage of the litigation.

Thus, as the Supreme Court has explained:

Since [the elements of standing] are not mere
pleading
requirements[,]
but
rather
an
indispensable part of the plaintiff’s case, each
element must be supported the same way as any other
matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence
required
at
the
successive
stages
of
the
litigation.
[ ] At the pleading stage, general
factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to
dismiss we presum[e] that general allegations
embrace those specific facts that are necessary to
support the claim.
In response to a summary
judgment motion, however, the plaintiff can no
3

Based on the subsequent Supplemental Amendment to the Fourth
Amended Complaint (Doc. #96), only Frank was a general partner.

- 7 -

longer rest on such mere allegations, but must set
forth by affidavit or other evidence specific
facts, which for purposes of the summary judgment
motion will be taken to be true. And at the final
stage, those facts (if controverted) must be
supported adequately by the evidence adduced at
trial.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)(internal
quotations and citations omitted).

Therefore, Santander Bank may

challenge Frank and Kathleen’s standing at this stage of the
proceedings, despite the Court’s prior ruling on the motion to
dismiss.
(2)

Standing of Frank and Kathleen

In order to establish standing, a plaintiff must adequately
allege and ultimately prove three elements: (1) that he or she has
suffered an “injury-in-fact”; (2) a causal connection between the
asserted

injury-in-fact

and

the

challenged

conduct

of

the

defendant; and (3) that the injury likely will be redressed by a
favorable decision.

Shotz v. Cates, 256 F.3d 1077, 1081 (11th

Cir.

Lujan,

2001)

(citing

504

U.S.

at

560).

Plaintiffs

essentially assert two injuries-in-fact: (1) loss of investment
in, and an anticipated income stream from, the now-foreclosed
apartment complexes; and (2) potential liability for deficiency
judgments

in

connection

with

the

loans.

Frank

submitted

an

affidavit (Doc. #122) stating that he is the only general partner
of Croix Ltd. and Peppertree Ltd. and Kathleen is the only limited
partner of Croix Ltd. and Peppertree Ltd. (id. ¶¶ 2-3), and that

- 8 -

they lost their retirement income which was to come from the
revenue of the now-foreclosed apartment complexes.

(Id. ¶ 7.)

(a) Potential Deficiency Judgment Liability
Florida law provides that a plaintiff may seek a deficiency
judgment in a foreclosure action, or may sue at common law to
recover a deficiency “unless the court in the foreclosure action
has granted or denied a claim for a deficiency judgment.”
Stat. § 702.06.

Fla.

Where a deficiency judgment is sought in a

foreclosure suit, a deficiency proceeding is simply a continuation
of the original foreclosure suit.

TD Bank, N.A. v. Graubard, 172

So. 3d 550, 553 (Fla. 5th DCA 2015).

Alternatively, “unless the

foreclosure court has granted or has declined to grant a deficiency
judgment, a plaintiff may pursue deficiency relief in a separate
action.”

Garcia v. Dyck–O'Neal, Inc., 178 So. 3d 433, 436 (Fla.

3d DCA 2015).

See also Dyck-O' Neal, Inc. v. Weinberg, 41 Fla.

L. Weekly D329 (Fla. 3d DCA Feb. 3, 2016).

Such a separate action

must be brought within five years of the time the action accrues.
Chrestensen v. Erogest, Inc., 906 So. 2d 343, 345 (Fla. 4th DCA
2005) (statute of limitations for deficiency judgment proceedings
is five years).

A cause of action for a deficiency judgment

accrues when there has been a final judgment of foreclosure and a
sale of the assets to be applied to the satisfaction of the
judgment.

Life & Cas. Ins. Co. of Tenn. v. Tumlin, 189 So. 406,

- 9 -

407 (Fla. 1939); Arvelo v. Park Fin. of Broward, Inc., 15 So. 3d
660, 663 (Fla. 3d DCA 2009); Chrestensen, 906 So. 2d at 345.
Here,

Frank

foreclosure suit.

was

a

named

(Doc. #137.)

defendant

in

the

underlying

On February 28, 2012, a Judgment

in excess of $1.2 million was entered against Frank (and others),
but execution on the judgment was not allowed until the mortgaged
property was sold, a deficiency proceeding established entitlement
and fair market value, and the fair market value of the mortgaged
property was offset against the judgment amount.
state

court

retained

jurisdiction

judgment, among other things.

to

(Id. at 3.)

consider

(Id. at 7.)

a

The

deficiency

Neither side has

pointed to record evidence as to the status thereafter regarding
the sale of the property and any deficiency amount.

On the summary

judgment record, Frank may have liability for a deficiency amount,
and therefore Frank has standing to pursue his claims in this case.
Kathleen has no standing based upon the possibility of a
deficiency judgment because there is no such possibility.

A

limited partnership “is an entity distinct from its partners.”
Fla. Stat. § 620.1104.

As a limited partner of each of the limited

partnerships, Kathleen does not have the right or power “to act
for or bind the limited partnership.”

Fla. Stat. § 620.1302(1).

Additionally,

Kathleen

as

a

limited

partner

cannot

be

held

personally liable for any obligation of the limited partnership,

- 10 -

including a judgment against the limited partnerships.

Fla. Stat.

§ 620.1303.
(b) Loss of Investment and Anticipated Income Stream
Plaintiffs assert they also have standing because they have
lost their monetary investment in the limited partnership and have
lost the possibility of income from the partnership resulting from
its operation of the two apartment complexes which have now been
foreclosed.

Defendant asserts that a partner cannot sue in his

own name for injuries sustained by a limited liability partnership,
and therefore neither Frank nor Kathleen have standing.
At one time in Florida, a partnership could only sue in the
names

of

its

members,

not

in

the

name

of

the

partnership.

Effective January 1, 1996, however, as part of the Revised Uniform
Partnership Act (RUPA), partnerships were empowered to sue and be
sued in the name of the partnership.
See also Fla. Stat. § 620.1105.

Fla. Stat. § 620.8307(1).

Under the “be sued” portion of

this statute, it is clear that both a limited partnership and its
general partners may be sued.

Fla. Stat. § 620.8307(2).

Fla. Stat. §§ 620.1404; 620.1405(a).

See also

The “sue” portion is less

clear, and defendant has cited no binding precedent forbidding a
general partner from suing as a plaintiff in addition to the
partnership itself.
Accordingly,

at

least

Frank

has

constitutional

standing,

which is all that is required for subject matter jurisdiction.

- 11 -

Village of Arlington Heights v. Metro. Hous. Dev. Corp. 429 U.S.
252, 263-64 n.9 (1977).

Therefore, that portion of defendant’s

motion seeking summary judgment for lack of standing is denied.
D. Merits of the Two Claims
A cause of action for fraud in the inducement (Count I)
requires plaintiffs to prove that defendant: “(1) made a statement
concerning a material fact, (2) knowing that the statement was
false, (3) with intent that the plaintiffs act on the false
statement; and (4) the plaintiffs were damaged as a result of their
reasonable reliance on the false statement.”

Gemini Investors

III, L.P. v. Nunez, 78 So. 3d 94, 97 (Fla. 3d DCA 2012).

A claim

for fraudulent misrepresentation (Count II) requires plaintiffs to
prove: “(1) a false statement concerning a material fact; (2) the
representor’s knowledge that the representation is false; (3) an
intention that the representation induce another to act on it; and
(4) consequent injury by the party acting in reliance on the
representation.”

Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010).

Unlike fraud in the inducement, “[j]ustifiable reliance is not a
necessary element of fraudulent misrepresentation.”
Defendant

asserts

the

undisputed

record

Id.

shows

that

Ms.

Radcliffe did not make a misrepresentation to Mr. Preest; that no
one at Santander Bank spoke with Mr. Preest before plaintiffs
defaulted

on

the

loans;

and

that

even

if

the

alleged

misrepresentation was made, plaintiffs did not rely upon it.

- 12 -

Plaintiffs respond that all these matters are disputed, which
prevents the entry of summary judgment.
(1)

Existence of Fraudulent Misrepresentation

Both claims require plaintiffs to prove that Santander Bank
made a fraudulent misrepresentation.

Plaintiffs’ theory is that

such a fraudulent misrepresentation was made by Ms. Radcliffe to
Mr. Preest, who relayed the misrepresentation to plaintiffs, who
relied upon it to their detriment.

On summary judgment, Santander

Bank has the burden of showing that there is an absence of evidence
to support plaintiffs’ case or of showing plaintiffs will be unable
to prove their case at trial.

Hickson Corp. v. Northern Crossarm

Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004).

If it does so,

plaintiffs must come forward with evidence sufficient to withstand
a directed verdict motion.

Id.

“An affidavit or declaration used

to support or oppose a motion [for summary judgment] must be made
on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.”
admissibility

of

evidence

in

Fed. R. Civ. P. 56(c)(4).
a

case

premised

on

The

diversity

jurisdiction is governed by the Federal Rules of Evidence.

Wright

v. Farouk Sys., Inc., 701 F.3d 907, 910 n.6 (11th Cir. 2012).
Santander Bank submitted an affidavit of Ms. Radcliffe (Doc.
#141-1) stating that she is employed by Santander Bank as a
Collections Manger in the Portfolio Management group and she

- 13 -

reviewed Santander Bank’s business records for the loans at issue
in this case.

(Id. ¶¶ 2, 6-7.)

Ms. Radcliffe attests that

Santander Bank conducts training for new employees in the Portfolio
Management group on what to say when borrowers call to request
loan modifications.

(Id. ¶ 8.)

Employees are instructed to tell

the borrower to make their loan payments and if they had trouble
making their payments, then to let Santander Bank know so that the
borrower can speak with a workout officer.

(Id. ¶ 9.)

Ms. Radcliffe further states she does not recall any specific
conversations with plaintiffs and/or their agent regarding the
loans, but she has never told any borrower that Santander Bank
would modify the borrower’s loan if they were in default.
12.)

(Id. ¶

Further, notes in Santander Bank’s record-keeping system for

the loans indicate that the first telephone communication between
Santander Bank and Mr. Preest occurred on April 30, 2010, when Mr.
Preest

left

a

voicemail

message

stating

that

Croix

Ltd.

and

Peppertree Ltd. were having problems making their payments, that
a Chapter 11 bankruptcy was a possibility, and that it would be a
month before Croix Ltd. and Peppertree Ltd. can resume making
mortgage payments.

(Id. ¶¶ 13-15.)

Ms. Radcliffe is a witness competent to testify at trial and
her testimony would be admissible substantive evidence as to both
the content of Santander Bank’s business records, Fed. R. Evid.
803(6), and “to prove that on a particular occasion the person or

- 14 -

organization
practice.”

acted

in

accordance

Fed. R. Evid. 406.

with

the

habit

or

routine

Thus, Santander Bank has shown

that it made no misrepresentation to plaintiffs or their agent,
and that any communication with Mr. Preest was on and after April
30, 2010.
Plaintiffs respond with an affidavit of Frank Latell.
#144.)

(Doc.

Frank attests that Santander Bank, through its agent Ms.

Radcliffe, advised plaintiffs agent, Mr. Preest, that loans had to
be forty-five (45) days past due before a modification could be
considered.

(Id. ¶ 3.)

Plaintiffs were told this before the

loans were forty-five (45) days past due.
the

funds

to

make

the

mortgage

misrepresentation was made.
make

the

mortgage

misrepresentation.

payments

(Id.)

payments

(Id. ¶ 4.)
at

the

Frank had
time

this

The only reason Frank did not
was

in

reliance

on

the

(Id. ¶ 5.)

It is clear that neither Frank nor Kathleen personally spoke
with anyone at Santander Bank, and that the alleged communication
at issue was made to Mr. Preest, who is now deceased.

Mr. Preest’s

deposition was apparently not taken in this case, so the issue is
whether his version of the conversation, as he told it to others,
is somehow admissible.

Because it is not, and there is no

admissible evidence of the existence of any misrepresentation,
summary judgment is due to be granted in favor of defendant.

- 15 -

As noted above, Ms. Radcliffe’s testimony would be admissible
substantive

evidence

at

trial

establishing

that

no

misrepresentation was made and the date of the first communication
from Mr. Preest.

Mr. Preest’s testimony at trial regarding his

version of any conversations he had with Ms. Radcliffe would have
been admissible under Federal Rule of Evidence 801(d)(2) as a nonhearsay admission by a party opponent.

Wright, 701 F.3d at 910.

Mr. Preest is obviously unavailable, and therefore the question is
whether any of the statements he may have made describing his
conversation(s) with Santander Bank would be capable of being
admitted at a trial. 4
Plaintiffs assert that the Court may consider the hearsay
statement

made

conversation
Radcliffe[.]”

by

Mr.

occurred

Preest

and

to

to

Frank

impeach

(Doc. #147, p. 8.)

the

to

“show

testimony

that

the

of

Ms.

Santander Bank asserts there

are no hearsay exceptions which would allow Frank to testify to
the statement made to him by Mr. Preest which contained the alleged
statements of Ms. Radcliffe.
is

no

rule

of

evidence

(Id.)

that

would

The Court agrees that there
allow

such

testimony

as

substantive evidence.

4

The Court may consider hearsay statements at the summary
judgment stage if the statement is capable of being reduced to
admissible evidence at trial or reduced to admissible form. See
Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999).

- 16 -

“Hearsay within hearsay is not excluded by the rule against
hearsay if each part of the combined statements conforms with an
exception to the rule.”

Fed. R. Evid. 805.

What Mr. Preest said

was stated by Ms. Radcliffe is admissible as an admission by a
party opponent, but Mr. Preest is not available to testify about
it.

What Frank says Mr. Preest told him about what Ms. Radcliffe

said is not admissible as substantive evidence under any rule of
evidence.

It may be admissible as impeachment, but impeachment

is not substantive evidence offered for the truth of the matter
and would not support a summary judgment motion.

Macuba, 193 F.3d

at 1322-23; Nat’l Specialty Ins. Co. v. Martin-Vegue, No. 1415811,

F. App’x

, 2016 WL 737780, at *4 (11th Cir. Feb.

25, 2016) (“Offering evidence for impeachment purposes, however,
cannot create a genuine issue of fact at the summary judgment
stage. See McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.
1996) (holding that impeachment evidence is not substantive and
“may not be used to create a genuine issue of material fact for
trial”)).
(2)

Plaintiffs’ Reliance On Misrepresentation

Santander Bank also argues that even if its agent did make
the misrepresentation, plaintiffs’ did not rely on it because they
were already in default.

According to Santander Bank, plaintiffs

had failed to make the April, 2010 payment before ever speaking

- 17 -

with Santander Bank, which shows there was no reliance on Santander
Bank’s alleged false statement.
In his affidavit, Frank attests he had the funds to make the
mortgage payments at the time this misrepresentation was made.
(Doc. #144, ¶ 4.)

The only reason Frank did not make the mortgage

payments was in reliance on the misrepresentation that the loans
had to be forty-five (45) days past due before a modification could
be considered.

(Id. ¶ 5.)

This is sufficient evidence of

reliance as to non-payment of the then-late April payment and the
subsequent monthly obligations.

Reliance is at least a disputed

issue

therefore

of

material

fact,

and

summary

judgment

is

inappropriate on this ground.
(3)

Promise of Future Action As A Basis of Fraud

Finally, Santander Bank asserts that Frank’s statements in
his deposition that he defaulted so that Santander Bank “would at
least

talk”

Complaint

to

which

him

are

alleges

inconsistent
that

with

plaintiffs

the

Fourth

defaulted

Amended
because

Santander Bank told them they would receive a loan modification
only after they defaulted.

(Doc. #140, pp. 9-10.)

Santander Bank

alleges this is a promise of future action that cannot constitute
the grounds for a fraud claim.

(Id.)

Plaintiffs respond that

even if the alleged false statement is related to future actions
or opinions, the opinion may be treated as a statement of fact

- 18 -

because Santander Bank had superior knowledge of the subject.
(Doc. #147, p. 8.)
An

action

for

fraud

generally

may

not

be

predicated

on

statements of opinion or promises of future action, but rather
must be based on a statement concerning a past or existing fact.
Florida Dep’t of Ins. v. Debenture Guar., 921 F. Supp. 750, 757
(M.D. Fla. 1996).

However, courts have recognized exceptions to

this rule where the person expressing the opinion is one having
superior

knowledge

of

the

subject

of

the

statement

and

the

plaintiff can show that the person knew or should have known from
facts in his or her possession that the statement was false, id.,
or

that

the

person

promising

future

action

does

so

with

no

intention of performing, or with a positive intention not to
perform.
2012).

Prieto v. Smook, Inc., 97 So. 3d 916, 918 (Fla. 4th DCA
The evidence in this record is sufficient to at least

create a material issue of disputed fact, and therefore the motion
is denied on this issue.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendant’s Motion for partial summary judgment (Doc.

#117) is DENIED.
2.

Defendant’s Motion to Strike Jury Trial Demand (Doc. #116)

is DENIED AS MOOT.

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3.

Defendant’s Motion for Judicial Notice of Lyle Preest’s

Death Certificate (Doc. # 136) is GRANTED.
4.

Defendant’s Motion for Judicial Notice of Foreclosure

Pleadings (Doc. #137) is GRANTED.
5.

Defendant’s Motion for Summary Judgment (Doc. #140) is

GRANTED in part and DENIED in part.

Judgment shall be entered in

favor of Santander Bank on Counts I and II of the Fourth Amended
Complaint because there is no evidence which can be made admissible
as substantive evidence at trial to establish that Santander Bank
made a fraudulent misrepresentation.

The motion is otherwise

denied.
6.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE and ORDERED at Fort Myers, Florida, this
of March, 2016.

Copies:
Counsel of Record

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22nd

day