AVANT CAPITAL, LLC d/b/a AVANT RECOVERY FUND v. ELSA GOMEZ , 254 So. 3d 1042 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AVANT CAPITAL, LLC, d/b/a
AVANT RECOVERY FUND,
Appellant,
v.
ELSA GOMEZ,
Appellee.
No. 4D17-1014
[September 20, 2018]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No. 56-2016-CA-
000145.
Mark A. Levy of Brinkley Morgan, Fort Lauderdale, for appellant.
No brief filed for appellee.
LEVINE, J.
The issue presented for our review is whether the omission of the word
“Corporation” from the lender’s name on the promissory note rendered the
note invalid. We find that the trial court erred in granting summary
judgment because of this omission and incorrectly found the note invalid
as a matter of law. We reverse the summary judgment.
Avant Capital filed a complaint against appellee for breach of a
promissory note. The complaint alleged that appellee and Providian
Mortgage of South Florida entered into a loan which was ultimately
transferred and assigned to Avant Capital. Avant Capital claimed that it
was the owner and holder of the note and in possession of the original
note.
The copy of the note attached to the complaint listed Providian
Mortgage of South Florida as the lender. An allonge to the note contained
an endorsement by Providian Mortgage of South Florida to American
Brokers Conduit who, in turn, endorsed the note to Trinity Financial
Services. A second allonge contained an endorsement by Trinity Financial
to Avant Capital.
Appellee moved for summary judgment, arguing that Avant Capital
lacked standing because “Providian Mortgage of South Florida” was a
nonexistent entity. Appellee submitted certificates from the Florida
Department of State and Florida Office of Financial Regulation in support.
Appellee argued that the note and mortgage were void and that
endorsements from a nonexistent entity are a nullity.
In opposition to the motion, Avant Capital submitted a certificate from
the Florida Office of Financial Regulation showing that a mortgage broker
license existed for “Providian Mortgage Corporation of South Florida.”
(emphasis added).
The trial court entered summary judgment and dismissed the
complaint, stating:
A party’s rights that flow from another, are limited to those
rights the original party possesses. The original party pled
throughout this case by the plaintiff, “Providian Mortgage of
South Florida,” does not exist. Assignment of rights
originating from a nonexistent entity is no assignment at all.
Because the party pled concededly did not exist, plaintiff has
no standing to enforce the claimed rights of what was
conceded to be a nonexistent entity.
An order granting summary judgment is reviewed 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.
“All doubts and inferences must be resolved against the moving party, and
if there is the slightest doubt or conflict in the evidence, then summary
judgment is not available.” E. Qualcom Corp. v. Glob. Commerce Ctr. Ass’n,
59 So. 3d 347, 350 (Fla. 4th DCA 2011) (citation omitted).
We find that the trial court erred in entering summary judgment based
entirely on the omission of the word “Corporation” from the original
lender’s name. We note that section 694.12, Florida Statutes (2017),
provides:
All deeds of conveyance, bills of sale, mortgages, or other
transfers of real or personal property within the limits of this
state, heretofore made and received bona fide and upon good
consideration by any corporation, or to any corporation, in
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which the name of said corporation shall be incorrectly set out
in such deed, bill of sale, mortgage or other instrument by
omitting a word from the corporate name, or by adding a word
thereto, or by misspelling any part of the name of said
corporation, and the identity of said corporation shall plainly
appear from the contents of said instrument, or otherwise,
such deed, bill of sale, mortgage or other instrument, shall be
taken and deemed valid and effectual as though the name of
said corporation were correctly set out in said deed, bill of
sale, mortgage or other instrument, and the same shall,
notwithstanding such irregularity or defect, be deemed and
taken as properly executed.
“[S]light departures from the name used by the corporation, such as
the omission of a part of its name or the inclusion of additional words,
generally will not affect the validity of contracts or other business
transactions as long as the identity of the corporation can be reasonably
established from the evidence.” Presley v. Ponce Plaza Assocs., 723 So. 2d
328, 330 (Fla. 3d DCA 1998) (Cope, J., specially concurring) (emphasis
omitted) (citing 6 William Meade Fletcher et al., Fletcher Cyclopedia of the
Law of Private Corporations § 2444, at 156-58 (perm. ed. rev. vol. 1996)).
See also Sweet v. Ranger Realty Co., 146 So. 199, 200 (Fla. 1933) (affirming
denial of motion to dismiss suit brought to foreclose a tax certificate issued
to “Covington Bank & Trust Company” instead of “Covington Trust and
Banking Company”); accord Laws v. Ranger Realty Co., 148 So. 583, 583
(Fla. 1933).
In the instant case, omission of the word “Corporation” from Providian’s
name on the note did not affect the validity of the loan or Providian’s
endorsement because, taking the evidence in the light most favorable to
the non-moving party, one could identify Providian Mortgage of South
Florida as being the same entity as Providian Mortgage Corporation of
South Florida. Because this issue of material fact remained, the trial court
erred in finding as a matter of law that the two entities could not be the
same. As such, we reverse and remand for further proceedings.
Reversed and remanded for further proceedings.
GERBER, C.J., and CIKLIN, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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