Case No. 2D18-2929
Ceci C. Berman and Joseph T. Eagleton of Brannock & Humphries, Tampa; Patrick M. Mosley of Hill Ward Henderson, Tampa, for Appellant. Michael A. Cohn, Martin S. Awerbach, and Jacqueline F. Perez of Awerbach Cohn, Clearwater, for Appellees Deutsche Bank and OneWest Bank. Michele A. Cavallaro of Fidelity National Law Group, Fort Lauderdale, for Appellees Wells Fargo Bank, N.A. and Monica Karcz. No appearance for remaining Appellees.
Ceci C. Berman and Joseph T. Eagleton of Brannock & Humphries, Tampa; Patrick M. Mosley of Hill Ward Henderson, Tampa, for Appellant.
Michael A. Cohn, Martin S. Awerbach, and Jacqueline F. Perez of Awerbach Cohn, Clearwater, for Appellees Deutsche Bank and OneWest Bank.
Michele A. Cavallaro of Fidelity National Law Group, Fort Lauderdale, for Appellees Wells Fargo Bank, N.A. and Monica Karcz.
No appearance for remaining Appellees.
Foley & Lardner, LLP (Foley) appeals a final summary judgment entered in favor of the remaining defendants (Appellees) in the underlying foreclosure case. Foley argues that the trial court erred in finding that its predecessor-in-interest, CCM Pathfinder Palm Harbor Management, LLC (Pathfinder Palm Harbor), lacked standing to foreclose. We agree and reverse.
Palm Harbor One, LLC (the Developer) borrowed $29 million from over 300 fractional lenders (the Direct Lenders) to develop Cypress Falls at Palm Harbor Condominium (the Property). The Developer executed and delivered a promissory note, a mortgage, and a loan agreement in favor of the Direct Lenders. The Property, including all of the individual units, served as security for the loan. As such, purchasers of the condominium units needed to pay the Direct Lenders a release payment in order to release their units from the encumbrance of the Developer's mortgage. Appellees are condominium unit owners who never obtained releases. Thus, their units remained encumbered by the mortgage and were subject to foreclosure.
USA Commercial Mortgage Company (USA Commercial) was the original loan servicer for the Direct Lenders. However, less than six months after inception of the loan, USA Commercial filed for bankruptcy in Nevada, after which it serviced the loan for approximately nine months until it assigned its servicing rights to Compass USA SPE LLC (Compass). Thereafter, the Developer defaulted on the loan and filed for bankruptcy in Massachusetts. After recognizing USA Commercial's assignment of servicing rights to Compass, the Massachusetts bankruptcy court ordered Compass to proceed with a foreclosure action on behalf of the Direct Lenders. However, Compass assigned its servicing rights to Asset Resolution, LLC (Asset Resolution), before filing a foreclosure action.
Asset Resolution then filed its own bankruptcy action in Nevada. Pathfinder Pompano, one of the Direct Lenders that owned roughly forty percent of the loan, sought to be appointed by the Nevada bankruptcy court as the asset manager of the loan. The bankruptcy court approved the Asset Management and Majority Cooperation Agreement (Asset Management Agreement), which stated, in part, the following:
2. Designation of Manager. Direct Lenders hereby designate and appoint [Pathfinder Pompano], and [Pathfinder Pompano] hereby accepts such designation and appointment, as the agent and representative of Direct Lenders for the purpose of administering, operating and supervising the management, leasing, financing, foreclosure, assignment and disposition of the Loan/Property.
5. Authority/Advisory Committee. [Pathfinder Pompano] shall be solely authorized to take any and all actions on behalf of the Direct Lenders, including but not limited to executing all documents and paying all costs, fees and expenses on behalf of all the Direct Lenders relating to the Loan and/or Property. Notwithstanding anything contained herein, [Pathfinder Pompano] may, in its sole discretion, delegate communications and certain aspects of asset resolution tasks to a workout specialist, loan consultant, asset management advisor, real estate broker or agent, attorney, or others, to be determined by [Pathfinder Pompano] in its sole and absolute discretion.... No additional approvals shall be required from the Direct Lenders except in the event that [Pathfinder Pompano] elects to vary from the initial business plan of rehabilitating and selling the Property within the initial Term of this Agreement. In such event, the approval of a Majority of Direct Lenders shall be required. ...
8.7. Hiring. [Pathfinder Pompano], on behalf of Direct Lenders, shall have authority to hire and terminate, and shall supervise, all employees and independent contractors hired in connection with [Pathfinder Pompano's] duties hereunder, if any, and reasonably required for the operation of the Property. ...
(Emphasis added.) That same day, Pathfinder Pompano delegated its obligations to Pathfinder Palm Harbor in an Agreement to Delegate Duties under Asset Management Agreement and Majority Cooperation Agreement (the Delegation Agreement), which provided, in part, the following:
WHEREAS, on June 10, 2010, the United States Bankruptcy Court for the District of Nevada entered an order approving the [Asset] Management Agreement and appointing the [Pathfinder Pompano] as the Asset Manager for the Palm Harbor Loan; and
WHEREAS, pursuant to sections 5 and 8.7 of the [Asset] Management Agreement, [Pathfinder Pompano] is authorized to delegate its duties and obligations under the [Asset] Management Agreement to [Pathfinder Palm Harbor];
WHEREAS, [Pathfinder Pompano] desires to delegate all of its duties and obligations under the [Asset] Management Agreement to [Pathfinder Palm Harbor] and [Pathfinder Palm Harbor] desires to accept the duties and obligations
of the [Pathfinder Pompano] under the Management Agreement;
1. Delegation. [Pathfinder Pompano] hereby delegates all of its obligations and duties under the [Asset] Management Agreement to [Pathfinder Palm Harbor] pursuant to sections 5 and 8.7 of the [Asset] Management Agreement and [Pathfinder Palm Harbor] hereby accepts and agrees to perform all of [Pathfinder Pompano]'s obligations and duties under the [Asset] Management Agreement.
(Emphasis added.) Subsequently, Pathfinder Palm Harbor initiated the underlying foreclosure action on behalf of the Direct Lenders.
Appellees successfully moved to dismiss the foreclosure complaint with prejudice on grounds of the statute of limitations and statute of repose. This court reversed that dismissal. See CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs of Gendron, 198 So. 3d 3 (Fla. 2d DCA 2015). While the appeal was pending, Pathfinder Palm Harbor assigned its rights and interests in the underlying foreclosure proceeding as part of a settlement agreement. Foley then substituted for Pathfinder Palm Harbor as plaintiff.
Over the next few years, Foley pursued the foreclosure action, settling claims with some defendants and dismissing claims against others. A number of the remaining defendants moved for summary judgment, arguing in part that Pathfinder Palm Harbor never became an authorized loan servicer and thus lacked standing to bring the foreclosure action. In response, Foley argued that Pathfinder Palm Harbor derived its standing from the Asset Management Agreement and the Delegation Agreement. The trial court ultimately agreed that Pathfinder Palm Harbor lacked standing and entered summary judgment in favor of the remaining defendants.
This court reviews a trial court's determination of whether a foreclosure plaintiff has standing de novo. Peters v. Bank of N.Y. Mellon, 227 So. 3d 175, 178 (Fla. 2d DCA 2017). Issues involving contract interpretation are also reviewed de novo. See Kaplan v. Bayer, 782 So. 2d 417, 419 (Fla. 2d DCA 2001).
It is undisputed that Pathfinder Pompano was authorized to service the loan and bring a foreclosure action on behalf of the Direct Lenders under the Asset Management Agreement. The questions before this court are whether the Asset Management Agreement authorized Pathfinder Pompano to delegate this duty to Pathfinder Palm Harbor, and, if so, whether Pathfinder Pompano did delegate that duty to Pathfinder Palm Harbor under the Delegation Agreement.
Foley contends that the Asset Management Agreement authorizes Pathfinder Pompano to delegate its ability to bring a foreclosure action on behalf of the Direct Lenders. This authority to delegate is found in section 5, which allows Pathfinder Pompano to, "in its sole discretion, delegate communications and certain aspects of asset resolution tasks to a workout specialist, loan consultant, asset management advisor, real estate broker or agent, attorney, or others, to be determined by [Pathfinder Pompano] in its sole and absolute discretion."
Appellees argue that the qualifier "certain aspects" limits the "asset resolution tasks" that Pathfinder Pompano was permitted delegate—that section 5 does not vest Pathfinder Pompano with unlimited authority to delegate its authority and responsibility. However, assuming arguendo that the phrase "certain aspects" suggests that there might be certain duties Pathfinder Pompano was not authorized to delegate, the Asset Management Agreement does not indicate that bringing a foreclosure action is one of them. Section 5 does not indicate which "certain aspects" of asset resolution tasks are delegable. In fact, there is nothing in the Asset Management Agreement that would suggest that some asset resolution tasks are delegable and others are not, much less an indication of which specific tasks would fall in either category.
Appellees do not identify any provision that would guide the parties in differentiating between delegable and non-delegable tasks. Instead, invoking the canon of construction known as ejusdem generis, they argue that foreclosure is non-delegable because the non-exhaustive list of entities to whom the Asset Management Agreement permits delegation includes entities whose "roles" are not "in keeping" with mortgage foreclosure. See Mazur v. Ospina Baraya, 275 So. 3d 812, 817 (Fla. 2d DCA 2019) ("[W]here general words follow an enumeration of specific words, the general words are construed as applying to the same kind or class as those that are specifically mentioned." (quoting State v. Weeks, 202 So. 3d 1, 8 (Fla. 2016) )). Appellees give no explanation for their premise that an entity such as an "asset management advisor" or an "attorney" should not be considered of the type that could foreclose as an agent on behalf of a principal. See id. at 817 (explaining that the canon of ejusdem generis holds that a general phrase following a list of specifics should "be interpreted to include only items of the same type as those listed" (quoting Weeks, 202 So. 3d at 8 )). And Appellees' conclusion is belied by open-ended language indicating plenary authority to decide to whom to delegate. The list of delegees includes "or others," the identity of whom is to be determined by Pathfinder Pompano "in its sole and absolute discretion."
The question is whether a reasonable reader would understand that an entity with the authority to foreclose on another's behalf would belong among the "others" in a list that includes "a workout specialist, loan consultant, asset management advisor, real estate broker or agent, [and] attorney." In context, the answer is yes. Section 2 of the Asset Management Agreement appoints Pathfinder Pompano as "Asset Manager" and makes it an "agent and representative" of the Direct Lenders for the purpose of, among other things "foreclosure." Section 5, titled "Authority," authorizes Pathfinder Pompano to "take any and all actions on behalf of the Direct Lenders," including the authority to delegate, in its "sole discretion, ... certain aspects of asset resolution tasks" to entities it has the "sole and absolute discretion" to select. And the fact that "foreclosure" is listed as one of the functions for which an entity described as an "Asset Manager" was appointed suggests that an entity with the authority to foreclose would be at home on a list that includes an "asset management advisor."
Parties to this agreement would understand that permissible delegees include those who could foreclose on behalf of the Direct Lenders as Pathfinder Pompano was authorized to do. And in the absence of any provision describing which aspects of asset resolution tasks are delegable and which are not, they would understand that they are not limited by the word "certain." Appellees also argue that, even if Pathfinder Pompano had the ability to delegate its authority to foreclose, it did not do so in the Delegation Agreement. For this proposition Appellees rely on a misreading of the phrase "pursuant to" in the provision of the Delegation Agreement in which Pathfinder Pompano "delegates all of its obligations and duties under the [Asset] Management Agreement to [Pathfinder Palm Harbor] pursuant to sections 5 and 8.7 of the [Asset] Management Agreement ...." Appellees construe the phrase to mean that Pathfinder Pompano delegated only those duties outlined in sections 5 and 8.7, neither of which mention foreclosure. However, "pursuant to" can more logically be read to mean that the delegation is being made under the authority of sections 5 and 8.7. This is consistent with how the same language is used elsewhere. The Delegation Agreement includes a WHEREAS clause indicating that it is "pursuant to sections 5 and 8.7" that Pathfinder Pompano is "authorized to delegate its duties and obligations under the Management Agreement to the [Pathfinder Palm Harbor]."
It is worth remembering that Appellees are not parties to either agreement. Nonetheless, by dint (or incident) of Florida foreclosure law, they are permitted to challenge the contractual relationship between the holders of the promissory notes and their agents. Cf., e.g., Buckingham v. Bank of Am., N.A., 230 So. 3d 923, 924–25 (Fla. 2d DCA 2017) (finding a bank lacked "standing to foreclose" because it had not established that its servicer was "acting as its agent with the power to file suit on its behalf").
Reading "pursuant to" as merely an acknowledgment that the authority to delegate is derived from sections 5 and 8.7 of the Asset Management Agreement makes sense because neither of those sections contains a list of obligations and duties. Enumeration of the specific things Pathfinder Pompano is obligated to do can be found in sections 2 and 4, as well as other portions of section 8. Sections 5 and 8.7, on the other hand, give Pathfinder Pompano the general authority, respectively, to delegate its duties and to hire employees in connection with those duties. It makes little sense to construe "pursuant to sections 5 and 8.7" as an indicator that only duties listed in those sections have been delegated if those sections do not list any duties at all. And if Appellees' argument is to be taken to mean that only those actions authorized under sections 5 and 8.7 were delegated, it should be noted that section 5 broadly authorizes Pathfinder Pompano to take "any and all actions on behalf of the Direct Lenders."
Pathfinder Pompano was authorized to delegate its ability to bring foreclosure actions on behalf of the Direct Lenders under the Asset Management Agreement, and Pathfinder Pompano delegated that duty to Pathfinder Palm Harbor in the Delegation Agreement. As such, Pathfinder Palm Harbor had standing to bring the foreclosure action. We reverse the trial court's order granting summary judgment and remand for further proceedings.
Reversed and remanded.
NORTHCUTT and VILLANTI, JJ., Concur.