Montgomery Bank, N.A. v. Asperilla et al

Filing 29

ORDER granting 26 Plaintiff's Motion to Substitute Party Plaintiff. Marsh Groves of Desoto County, LLC shall have up to and including August 8, 2017 to file an amended complaint. The Clerk of Court is directed to edit the docket to reflect that Marsh Groves of Desoto County, LLC is Plaintiff. The caption of all future filings in this case also should so reflect. Signed by Magistrate Judge Carol Mirando on 7/25/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MONTGOMERY BANK, N.A.,
Plaintiff,
v.

Case No: 2:17-cv-295-FtM-99CM

MARIANITO O. ASPERILLA, W.
M. MARSH, LINDA SUE MARSH,
A & M GROVES, EMERALD
GROVES, INC. and IBERIABANK,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion to
Substitute Party Plaintiff (Doc. 26) filed on July 7, 2017.

Plaintiff seeks to substitute

Marsh Groves of Desoto County, LLC (“Marsh Groves”) as a plaintiff in this matter
pursuant to Rule 25(c) of the Federal Rules of Civil Procedure.

Doc. 26.

Plaintiff

alleges that after it initiated this lawsuit to foreclose a mortgage lien on real property
on May 31, 2017, it assigned all of its right, tittle, and interest in the subject mortgage
to Marsh Groves.

Id. at 1; Doc. 1 ¶ 1. Defendants W.M. Marsh, Linda Sue Marsh,

A&M Groves and Emerald Groves, Inc. consent to the requested relief.

Doc. 26 at 2.

Defendants IberiaBank and Marianito O. Asperilla have not responded to the present
motion, and their time to do so has expired.

Their non-response to the present

motion creates a presumption that the motion is unopposed.

Great Am. Assur. Co.

v. Sanchuk, LLC, No. 8:10-cv-2568-T-33AEP, 2012 WL 195526, at *3 (M.D. Fla. Jan.
23, 2012).

Rule 25 allows substitution of parties when a transfer of interest occurs after
litigation begins.

Fed. R. Civ. P. 25(c); Andrews v. Lakeshore Rehab. Hosp., 140 F.3d

1405, 1407 (11th Cir. 1998).

Whether to allow substitution under Rule 25(c) is

within the court’s discretion.

Nat’l Indep. Theatre Exhibitors, Inc. v. Buena Vista

Distribution Co., 748 F.2d 602, 610 (11th Cir. 1984). Substitution under Rule 25(c)
is “procedural only and does not affect the substantive rights of the parties which are
determined by state law.”

In re Covington Grain Co., Inc., 638 F.2d 1357, 1361 (5th

Cir. 1981). 1
Here, the Court finds appropriate the substitution of Marsh Groves as the
party plaintiff because Plaintiff assigned all of its rights, title and interest in the
mortgages and notes at issue to Marsh Groves.

Doc. 26 at 1; see Cableview

Commc’ns of Jacksonville, Inc. v. Time Warner Cable Se. LLC, No. 3:13-cv-306-J34JRK, 2014 WL 1268584, at *3 (M.D. Fla. Mar. 27, 2014) (“A legal assignment
transfers all the interests and rights to the thing assigned, and permits the assignee
to stand in the assignor’s shoes and ‘enforce the contract against the original obligor
or in his own name.’”). Furthermore, the requested substitution will not disrupt the
administration of this case because it is at its early stage, and Defendants do not
oppose the requested relief.

See Protective Life Ins. Corp. v. Betts, No. 8:16-cv-1292-

T-JSS, 2017 WL 1376182, at *3 (M.D. Fla. Apr. 17, 2017).

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207, 1209 (11th Cir.)(en banc),
the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered
prior to October 1, 1981.
1

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ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Motion to Substitute Party Plaintiff (Doc. 26) is GRANTED.

2.

Marsh Groves of Desoto County, LLC is SUBSTITUTED as the party

plaintiff in this case.
3.

Marsh Groves of Desoto County, LLC shall have up to and including

August 8, 2017 to file an amended complaint.
3.

The Clerk of Court is directed to edit the docket to reflect that Marsh

Groves of Desoto County, LLC is Plaintiff. The caption of all future filings in this
case also should so reflect.
DONE and ORDERED in Fort Myers, Florida on this 25th day of July, 2017.

Copies:
Counsel of record

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