Federal Deposit Insurance Corporation v. Soliz et al

Filing 21

OPINION AND ORDER granting 13 Plaintiff's Motion for Summary Judgment as to the Federal Deposit Insurance Corporation's Verified Supplemental Complaint to Reforeclose and JP Morgan Chase Bank's Counterclaims; granting 13 Plaintiff& #039;s Motion for Final Default Judgment to the extent that the entry of a final default judgment against Soliz, Fregeau, Time Off, Carr, WaMu, and the Villages at Emerald Lakes Two is not required. The Clerk shall enter judgment as set forth herein . The Federal Deposit Insurance Corporation shall submit, via email, a Final Judgment of Foreclosure to the Court within FOURTEEN (14) DAYS of this Opinion and Order. See Opinion and Orders for details. Signed by Judge John E. Steele on 3/13/2015. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION, as receiver for
The Royal Palm Bank of
Florida,
Plaintiff,
v.

Case No: 2:14-cv-232-FtM-29CM

MARIA GABY SOLIZ, PIERRE
FREGEAU, BRUCE CARR, TIME
OFF, LLC, WASHINGTON MUTUAL
BANK, and THE VILLAGES AT
EMERALD
LAKES
TWO,
a
condominium association,
Defendants.

OPINION AND ORDER
This matter comes before the Court on the plaintiff’s Motion
for Summary Judgment and Final Default Judgment (Doc. #13) filed
on September 2, 2014.

Defendant JP Morgan Chase Bank, the only

defendant to appear in this matter, has not filed a response, and
the time to do so has expired.
I.
On November 19, 2003, Pierre Fregeau (Fregeau) and Maria Gaby
Soliz (Soliz) acquired real property located at 7785 Esmeralda
Way, Naples, Florida (the “Property”), more particularly described
as:

Unit M-201, The Villages at Emerald Lakes Two, a
Condominium, according to the declaration of Condominium
thereof, recorded in Official Record Book 1641, Page
1036, and as amended, of the Public Records of Collier
County, Florida, together with an undivided share in the
common elements appurtenant thereto.
The deed was recorded in the public records of Collier County on
November 25, 2003.
On December 12, 2003, Fregeau and Soliz executed and delivered
a mortgage securing a debt in the amount of $120,000 to Coastal
Capital Corp. (the “Coastal Capital Mortgage”).
Capital Mortgage was recorded on December 29, 2003.

The Coastal
On November

5, 2004, Time Off, LLC (Time Off), Fregeau, and Soliz obtained a
revolving line of credit, not to exceed the principal sum of
$250,000, from the Royal Palm Bank of Florida (Royal Palm).

The

line of credit was secured by a mortgage recorded on January 14,
2005 (the “Royal Palm Mortgage”).
Fregeau and Soliz executed and delivered another mortgage
securing a loan in the amount of $100,000 to the Sven A. Wasberg
Trust on November 9, 2005 (the “Wasberg Mortgage”).
Mortgage was recorded on November 23, 2005.

The Wasberg

On October 3, 2006,

Washington Mutual Bank, FA (WaMu) granted a loan to Fregeau and
Soliz in the original principal amount of $232,500.

The loan was

secured by a mortgage recorded on October 18, 2006 (the “WaMu
Mortgage”).

Proceeds from the loan secured by the WaMu Mortgage

were used to pay-off and satisfy the Coastal Capital Mortgage and

2

the Wasberg Mortgage.

A Satisfaction of the Wasberg Mortgage was

recorded on November 14, 2006, and a Release of the Coastal Capital
Mortage was recorded on December 4, 2006.
WaMu

was

closed

by

the

Office

of

Thrift

Supervision

on

September 25, 2008, and the Federal Deposit Insurance Corporation
(FDIC) was named receiver.

After the closure, JP Morgan Chase

Bank (JP Morgan) acquired certain assets of WaMu, including all
loans and loan commitments of WaMu, pursuant to a Purchase and
Assumption Agreement with the FDIC. On October 29, 2008, JP Morgan
filed an action to foreclose on the WaMu Mortgage in the Circuit
Court in and for Collier County (the “State Court”).

The Property

was purchased at a judicial sale by JP Morgan, and a Certificate
of Title reflecting JP Morgan as the owner of the Property was
recorded on November 6, 2009.
On March 13, 2009, Royal Palm filed a complaint in the Circuit
Court in and for Collier County, seeking to foreclose on the Royal
Palm Mortgage.

The State Court entered a Final Summary Judgment

of Foreclosure in favor of Royal Palm on January 11, 2010, and
foreclosed on any and all interests claimed by Fregeau, Soliz,
Time Off, Bruce Carr (Carr), the managing member of Time Off, LLC,
the Villages at Emerald Lakes Two, and WaMu.

The Collier County

Clerk of Court sold the Property to Royal Palm at a public auction

3

on February 10, 2010.

Royal Palm then sold the Property to John

and Mary Jane Bucci, via special warranty deed.
On August 12, 2010, JP Morgan filed a petition to intervene
and a motion to set aside sale and judgment of foreclosure.

JP

Morgan alleged that it was the successor to the interest of WaMu
and did not receive notice of the forfeiture proceeding initiated
by Royal Palm.

JP Morgan argued that the Royal Palm Foreclosure

Judgment did not apply to JP Morgan because service on WaMu did
not constitute service on JP Morgan, and requested that the State
Court set aside the Royal Palm Foreclosure Judgment and the Royal
Palm Certificate of Title.
The State Court denied JP Morgan’s motion to set aside the
sale and judgment and ordered Royal Palm to file a reforeclosure
complaint.

Royal Palm complied with the State Court’s Order and

filed a Verified Supplemental Complaint to Reforeclose on May 16,
2011.
for

JP Morgan filed an Answer and Counterclaims alleging claims
equitable

subrogation,

an

equitable

lien,

and

unjust

enrichment.
On November 17, 2011, JP Morgan filed a Motion for Partial
Summary Judgment as to Lien Priority on Counterclaim, arguing that
its interest in the Property was superior to Royal Palm’s interest
to extent the proceeds from the WaMu loan were used to satisfy the
Coastal Capital loan.

The State Court denied JP Morgan’s motion

4

on April 24, 2012, and determined that Royal Palm had a senior
interest in the Property.
Royal Palm was closed by the Florida Office of Financial
Regulation on July 20, 2012, and the FDIC was named receiver.

On

August 6, 2012, the FDIC served JP Morgan with a “Notice to
Creditor to Present Proof of Claim” which notified JP Morgan that
any claims against Royal Palm must be filed with the FDIC on or
before October 24, 2012 (the “Claims Bar Date”).

JP Morgan did

not file a claim with the FDIC regarding the Property.
The FDIC filed a Notice of Substitution of Parties on April
3, 2014, and removed the action to this Court on April 25, 2014.
The FDIC now moves for summary judgment against JP Morgan, the
only defendant to appear in this matter, and entry of a final
default judgment against Soliz, Fregeau, Time Off, Carr, WaMu, and
the Villages at Emerald Lakes Two.
II.
The FDIC argues that it is entitled to summary judgment on
its claim for reforeclosure because the State Court has already
determined that the Royal Palm Mortgage has priority over the WaMu
Mortgage. The FDIC also argues that the Court lacks subject matter
jurisdiction of JP Morgan’s affirmative defenses and counterclaims
because JP Morgan failed to file a timely claim with the FDIC.

5

A.
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., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004) (citing Anderson, 477 U.S. at 251).
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.

6

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (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.
The FDIC argues that it is entitled to foreclose on JP
Morgan’s interests in the Property because the Royal Palm Mortgage
is superior to all of JP Morgan’s recorded interests.

In Florida,

a senior mortgagee’s rights are unaffected by the foreclosure of
a junior mortgage.
4th DCA 2005).

Garcia v. Stewart, 906 So. 2d 1117, 1121 (Fla.

Thus, the FDIC may only foreclose on JP Morgan’s

interests in the Property if it establishes that the Royal Palm
Mortgage is superior to all of JP Morgan’s recorded interests in
the Property.
The priority of competing interests in land is generally based
on the order in which the interests are created.

See Morris v.

Osteen, 948 So. 2d 821, 826 (Fla. 5th DCA 2007).

“The important

caveat to this rule is that those acquiring rights later will have

7

priority
rights.’”

if

they

took

without

‘notice

of

the

first

created

Id. (quoting F.J. Holmes Equip., Inc. v. Babcock Bldg.

Supply, Inc., 553 So. 2d 748, 750 (Fla. 5th DCA 1989)).

In order

for a conveyance, transfer, or mortgage of real property, or of
any interest therein, to be good and effectual against creditors
or

subsequent

purchasers,

“Official Records.”

it

must

be

recorded

Fla. Stat. § 695.01.

in

a

county’s

See also U.S. Bank Nat’l

Ass’n v. Farhood, 153 So. 3d 955, 958 (Fla. 1st DCA 2014).

The

sequence

the

of

official

register

priority of recordation.

numbers

“shall

determine

An instrument bearing the lower number

in the then-current series of numbers shall have priority over any
instrument bearing a higher number in the same series.” Fla. Stat.
§ 695.11.
Here, the undisputed evidence clearly establishes that the
Royal Palm Mortgage has priority over the WaMu Mortgage. The Royal
Palm Mortgage was recorded in Official Records Book 3715, Page
3099, Public Record of Collier County, Florida, on January 14,
2005.

(Doc. #2, p. 5.)

The WaMu Mortgage was recorded on October

18, 2006, in Official Records Book 4124, Page 434, Public Record
of Collier County, Florida.

(Doc. #2, p. 19.)

Likewise, the

Certificate of Title identifying JP Morgan as the owner of the
Property was recorded in Official Records Book 4507, Page 1592,
Public Record of Collier County, Florida on November 6, 2009.

8

(Doc. #3, p. 132.)

Because the Royal Palm Mortgage bears the

lowest official recording number, the Court finds that it is
superior to all interests of JP Morgan.
Although JP Morgan’s interests in the Property are inferior
to the Royal Palm Mortgage, they were not fully foreclosed by the
State Court’s Final Summary Judgment of Foreclosure.

See Quinn

Plumbing Co. v. New Miami Shores Corp., 129 So. 690, 692 (1930)
(when a junior mortgagee is omitted as a party to the foreclosure
of

a

senior

mortgage,

the

unaffected by the judgment).

lien

of

the

junior

mortgagee

is

Florida law provides that a senior

mortgagee may remedy the inadvertent omission of a junior mortgagee
by reforeclosing on the property.
981, 984 (Fla. 2d DCA 2005).

Abdoney v. York, 903 So. 2d

Because the FDIC’s interest in the

Property is superior to the interests of JP Morgan, the Court finds
that reforeclosure is warranted.
C.
The FDIC argues that it is entitled to summary judgment on JP
Morgan’s affirmative defenses and counterclaims because they are
barred

by

the

Enforcement Act.

Financial

Institution

Reform,

Recovery,

and

The Court agrees.

The Financial Institution Reform, Recovery, and Enforcement
Act (FIRREA) established a comprehensive claims review process for
claims against the assets of failed financial institutions held by

9

the FDIC as Receiver.

This claims review process “enables the

FDIC [ ] to dispose of the bulk of claims against failed financial
institutions

expeditiously

and

burdening the District Courts.”

fairly

.

.

.

without

unduly

Damiano v. FDIC, 104 F.3d 328,

334 n.10 (11th Cir. 1997) (quoting H.R. Rep. No. 101-54(I), at
418-19 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 215); FDIC v.
LaCentra Trucking, Inc., 157 F.3d 1292, 1299 (11th Cir. 1998)
(same).

To oversimplify, FIRREA requires the FDIC to give notice

to the failed bank’s creditors to file claims against the bank, 12
U.S.C. § 1821(d)(3)(b), and authorizes the FDIC to receive and
then disallow or allow and pay such claims, 12 U.S.C. § 1821(d)(5),
(10).
For claims handled administratively, the FDIC is required to
determine

the

claims

in

accordance

with

the

statutory

regulatory requirements of the claims review process.
§ 1821(d)(3)(A).

and

12 U.S.C.

Under this review process, the FDIC must first

publish a notice “to the depository institution’s creditors” to
present their claims by a specified date not less than 90 days
after publication of the notice, 12 U.S.C. § 1821(d)(3)(B)(i), and
must republish the notice twice at monthly intervals, 12 U.S.C. §
1821(d)(3)(B)(ii).

The FDIC must also mail a similar notice to

“any creditor shown on the institution’s books” at the creditor’s
last address listed in the books, 12 U.S.C. § 1821(d)(3)(C)(i),

10

and “upon discovery of the name and address of a claimant not
appearing on the institution’s books within 30 days after the
discovery of such name and address,” 12 U.S.C. § 1821(d)(3)(C)(ii).
Unless extended by a written agreement, the FDIC has 180 days
after a claim is filed to allow or disallow it and notify the
claimant of the determination. 12 U.S.C. § 1821(d)(5)(A)(i), (ii).
A person whose claim is disallowed, or whose claim is not decided
within the 180 day period, may pursue administrative remedies or
file a civil action in an appropriate federal district court.

12

U.S.C.

be

§

1821(d)(6)(A).

Claims

not

timely

filed

“shall

disallowed, and such disallowance shall be final”, 12 U.S.C. §
1821(d)(5)(C)(i), unless “the claimant did not receive notice of
the appointment of the receiver in time to file such claim before
such date” and “such claim is filed in time to permit payment of
such claim,” 12 U.S.C. § 1821(d)(5)(C)(ii).
Except as provided in the statute, “no court shall have
jurisdiction over -- (i) any claim or action for payment from, or
any action seeking a determination of rights with respect to, the
assets of any depository institution for which the [FDIC] has been
appointed receiver . . . or (ii) any claim relating to any act or
omission of such institution or the [FDIC] as receiver.” 12 U.S.C.
§ 1821(d)(13)(D)(i), (ii).

This broad bar applies to claims and

actions by debtors, creditors, and others, Tri-State Hotels, Inc.

11

v. FDIC, 79 F.3d 707, 713-15 (8th Cir. 1996), as well as lienors,
LaCentra Trucking, 157 F.3d at 1299 n.6, which may be characterized
as

“(1)

claims

for

payment

from

assets

of

any

depository

institution for which the [FDIC] has been appointed Receiver; (2)
actions for payment from assets of such depository institutions;
(3) actions seeking a determination of rights with respect to the
assets of such depository institutions; and (4) a claim relating
to any act or omission of such institution or the [FDIC] as
receiver.”

Am. First Fed., Inc. v. Lake Forest Park, Inc., 198

F.3d 1259, 1263 (11th Cir. 1999) (quoting Nat’l Union Fire Ins.
Co. v. City Sav., F.S.B., 28 F.3d 376, 393 (3d Cir. 1994)).

Thus,

“[u]nder FIRREA, federal courts generally lack the authority to
decide claims against an institution in federal receivership until
the claimant has exhausted his administrative remedies against the
FDIC.”

Aguilar v. FDIC, 63 F.3d 1059, 1061 (11th Cir. 1995)

(citation omitted).
The question before the Court is whether § 1821(d)(13)(D)
applies

to

and

counterclaims.

bars

JP

Morgan’s

affirmative

defenses

and

JP Morgan has asserted four affirmative defenses:

(i) the Royal Palm Mortgage should be equitably subrogated to the
interest

of

the

Coastal

Capital

Mortgage;

(ii)

JP

Morgan

is

entitled to a first priority equitable lien on the Property; (iii)
Royal Palm’s interest in the Property is inferior to JP Morgan’s

12

interests; and (iv) if the Property is sold at a foreclosure sale,
then JP Morgan is entitled to surplus proceeds.
also asserted three counterclaims.

JP Morgan has

In Counterclaim I, JP Morgan

asserts a claim for equitable subrogation based on the same grounds
set forth in its first affirmative defense.

Counterclaim II

asserts a claim for an equitable lien on grounds similar to those
set forth in JP Morgan’s second affirmative defense.

Counterclaim

III sets forth a claim for unjust enrichment.
It

is

clear

that

JP

Morgan’s

affirmative

defenses

and

counterclaims fall within the scope of 12 U.S.C. § 1821(d)(13)(D)
because they seek payment from (i.e., the unjust enrichment claim),
and a determination of rights (i.e., the equitable subrogation,
equitable lien, and lien priority claims and defenses) with respect
to, the assets of a depository institution for which the FDIC has
been appointed receiver.

It is also clear that JP Morgan failed

to file an administrative claim with the FDIC after receiving
notice of Royal Palm’s failure and the Claims Bar Date.
#14,

pp.

2-3.)

Because

JP

Morgan

has

not

(Doc.

exhausted

its

administrative remedies against the FDIC, the Court lacks subject
matter jurisdiction over JP Morgan’s affirmative defenses and
counterclaims.

The FDIC is therefore entitled to summary judgment

on JP Morgan’s affirmative defenses and counterclaims.

13

III.
The FDIC also seeks a default judgment against Soliz, Fregeau,
Time Off, Carr, WaMu, and the Villages at Emerald Lakes Two.
Before the court may enter a final default judgment, the clerk
must enter a default when the “party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise.” Fed.
R. Civ. P. 55(a).

After a default is entered against a defendant,

he is deemed to have admitted the plaintiff’s well-pleaded factual
allegations, and on appeal, he is barred from contesting those
facts.
F.3d

Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561

1298,

1307

(11th

Cir.

2009).

“A

default

judgment

is

unassailable on the merits, but only so far as it is supported by
well-pleaded allegations. [ ] A default defendant may, on appeal,
challenge the sufficiency of the complaint, even if he may not
challenge the sufficiency of the proof.”

Id. (internal quotations

and citations omitted).
On September 2, 2014, the FDIC filed a Motion for Default
against Soliz, Fregeau, Time Off, Carr, WaMu, and the Villages at
Emerald Lakes Two.

(Doc. #10.)

The Magistrate Judge denied the

FDIC’s motion because:
a valid state court judgment of foreclosure has been
entered against the Defendants now sought to be
defaulted by Plaintiff, and the state court expressly
stated that the judgment and subsequent sale were not

14

disturbed by that court permitting JP Morgan to
intervene, it does not appear that a second default is
required; or, at least, it is unclear upon what grounds
this Court can enter such default. The Court therefore
will deny the Motion for Default without prejudice to
Plaintiff refiling the motion explaining the basis upon
which the Court may enter a second default, if such
grounds exist.
(Doc. #19, p. 4.) Because the State Court’s Final Summary Judgment
of Foreclosure was not disturbed by JP Morgan’s intervention or
the removal of this action, the Court finds that the entry of a
final default judgment against Soliz, Fregeau, Time Off, Carr,
WaMu, and the Villages at Emerald Lakes Two is not required.
Accordingly, it is now
ORDERED:
1.

The Federal Deposit Insurance Corporation’s Motion for

Summary Judgment (Doc. #13) is GRANTED as to the Federal Deposit
Insurance

Corporation’s

Verified

Supplemental

Complaint

Reforeclose and JP Morgan Chase Bank’s Counterclaims.

to

Judgment

shall issue in favor of the Federal Deposit Insurance Corporation
and against JP Morgan Chase Bank as provided herein.
2.

The Federal Deposit Insurance Corporation’s Motion for

Final Default Judgment (Doc. #13) is GRANTED to the extent that
the entry of a final default judgment against Soliz, Fregeau, Time
Off, Carr, WaMu, and the Villages at Emerald Lakes Two is not
required.

15

3.

The

Royal

Palm

Mortgage’s

lien

on

the

Property

is

superior to any and all interests claimed by JP Morgan Chase Bank
and any person claiming, by through, under or against JP Morgan
Chase Bank.

The special warranty deed from the Royal Palm Bank of

Florida to John and Mary Jane Bucci is valid and JP Morgan is
forever barred and foreclosed of all interests in the Property
that arose prior to the recordation of John and Mary Jane Bucci’s
special warranty deed.

This Opinion and Order does not change or

otherwise alter the Final Summary Judgment of Foreclosure entered
in the Circuit Court in and for Collier County.
4.

The Clerk shall enter judgment accordingly.

5.

The Federal Deposit Insurance Corporation shall submit,

via email, a Final Judgment of Foreclosure to the Court within
FOURTEEN (14) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2015.

Copies:
Counsel of record

16

13th

day of