Third District Court of Appeal
State of Florida
Opinion filed August 15, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-352
Lower Tribunal No. 13-29724
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Aquasol Condominium Association, Inc.,
Appellant,
vs.
HSBC Bank USA, National Association, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Michael
Hanzman and Rodolfo A. Ruiz, Judges.
Jacobs Legal, PLLC, and Bruce Jacobs, for appellant.
DeLuca Law Group, PLLC, and Shawn Taylor (Fort Lauderdale), for
appellee.
Before LAGOA, EMAS and FERNANDEZ, JJ.
EMAS, J.
INTRODUCTION
Appellant, Aquasol Condominium Association, Inc. (“Aquasol”), appeals
from a final judgment of foreclosure in favor of appellee, HSBC Bank USA, N.A.
(“HSBC”), following a nonjury trial. We affirm, finding no merit in the issues
raised by appellant, and write to discuss two of those issues.
PROCEEDINGS BELOW
In September 2013, HSBC filed an action to foreclose on a condominium
unit in the Aquasol Condominium in Miami Beach.1 In January 2017, the case
proceeded to a nonjury trial. At trial, there was no dispute that at the time it filed
the instant action, HSBC was the holder of the note that was secured by a
mortgage. HSBC introduced, without objection, the original note, which was in
HSBC’s possession at the inception of the action.2
Nevertheless, Aquasol contended during the trial that HSBC Bank could not
establish standing to foreclose because it was required to prove it was the holder
and owner of the note. After hearing Aquasol’s position in this regard, the trial
court rejected the argument, advising counsel that under the law, HSBC was not
1 At the time that HSBC filed its foreclosure action, the unit had already been
foreclosed upon by Aquasol, and thus, Aquasol defended the action.
2 Further, the evidence introduced at trial established that the original note came
into HSBC’s possession indorsed in blank, and that HSBC subsequently indorsed
the note to itself. See § 673.2051(3), Fla. Stat. (2013) (providing: “The holder may
convert a blank indorsement that consists only of a signature into a special
indorsement by writing, above the signature of the indorser, words identifying the
person to whom the instrument is made payable.”)
2
required to establish it was the owner and holder of the note in order to establish
standing, but must only establish that it was the holder or owner of the note.
Nevertheless, counsel for Aquasol3 continued to press this position, and
repeatedly attempted to question one of HSBC’s witnesses about whether HSBC
owned the note. HSBC objected to the questions as irrelevant and the trial court
sustained the objections and directed Aquasol’s counsel to move on to a new line
of questioning. Aquasol’s counsel persisted nonetheless, through argument to (and
with) the trial court and questions posed to the witness. The trial court advised
counsel that the line of questioning was irrelevant, that the record had been
preserved, and that if counsel continued this line of questioning, he would be held
in contempt.
At that point, Aquasol’s counsel orally moved for a continuance so he could
prepare a written motion for disqualification of the trial judge, contending that the
trial judge had “prejudged” the case. The trial judge denied the request for a
continuance at that point, but took a recess shortly thereafter, advising Aquasol’s
counsel he could prepare and submit a written motion for disqualification, and that
the trial court would address the written motion when the trial resumed. When the
trial judge returned to the bench, Aquasol’s counsel requested some additional time
to complete the motion, which the trial court granted, and then denied a subsequent
3 Counsel for Aquasol in this appeal also represented Aquasol at the trial.
3
request for further additional time. Thereafter, the written motion was presented to
the trial judge, who denied it as legally insufficient.
The trial proceeded to conclusion, and the trial court entered a final
judgment of foreclosure in favor of HSBC, determining, inter alia, that HSBC had
the requisite standing.4 Aquasol filed a motion for rehearing; however, that motion
did not address in any fashion the trial court’s mid-trial denial of Aquasol’s motion
for disqualification or denial of the motion for continuance.
DISCUSSION AND ANALYSIS
1. The Motion for Disqualification
On appeal, Aquasol asserts that the trial court erred in denying its motion for
disqualification. Generally, we review de novo a trial court’s order denying a
motion for disqualification. Gregory v. State,
118 So. 3d 770, 778 (Fla. 2013). To
the extent that Aquasol asserts error in the trial court’s denial of its motion for
continuance or for further additional time (to prepare a written motion) we review
this claim for an abuse of discretion. See Taylor v. Mazda Motor of Am., Inc.,
934
So. 2d 518 (Fla. 3d DCA 2005).
A motion to disqualify a trial judge is properly denied where it is legally
insufficient. Thompson v. State,
759 So. 2d 650, 659 (Fla. 2000). In order to be
legally sufficient, “a motion to disqualify a judge ‘must be well-founded and
4 Aquasol moved for an involuntary dismissal based on an asserted lack of
standing, which the trial court denied.
4
contain facts germane to the judge’s undue bias, prejudice, or sympathy.’”
Id.
(quoting Rivera v. State,
717 So. 2d 477, 480-81 (Fla. 1998)). Of significance, “an
adverse ruling is not a legally sufficient ground to disqualify the trial judge.”
Id. at
660. See also, Lomax v. Reynolds,
119 So. 3d 562 (Fla. 3d DCA 2013); Clark v.
Clark,
159 So. 3d 1015 (Fla. 1st DCA 2015) (noting: “It is well-settled that
adverse rulings are insufficient to show bias”); Campbell Soup Co. v. Roberts,
676
So. 2d 435 (Fla. 2d DCA 1995).
In the instant case, there was no dispute—and Aquasol conceded—that
HSBC Bank was the holder of the note at the inception of the case. Thus, there
was nothing in this regard for the trial court to “prejudge,” as the parties were in
agreement on this singular operative fact. The trial court’s conclusion that one’s
status as a holder of the note is sufficient to confer standing was a legal
determination made by the trial court after hearing significant argument from
Aquasol’s counsel, not a factual determination made prior to presentation of the
evidence. Accordingly, Aquasol’s motion to disqualify the trial judge was legally
insufficient because it was premised on nothing more than its disagreement with an
adverse legal ruling, and failed to establish that the court’s actions “would create in
a reasonably prudent person a well-founded fear of not receiving a fair and
impartial trial.” Rodriguez v. State,
919 So. 2d 1252, 1274 (Fla. 2005).
5
Further, the trial court did not abuse its discretion in denying a continuance
to Aquasol. At the beginning of the trial, the trial court had a discussion with
counsel for both parties regarding the legal issue of whether HSBC had standing if
it was only the holder (but not the owner) of the note. As discussed previously, the
trial court addressed this legal issue and stated its conclusion on the record.
Thereafter, when Aquasol’s counsel began asking questions of HSBC’s witness
that went to ownership of the note, HSBC objected to the questions as irrelevant.
The trial court sustained the objections, as Aquasol had already conceded HSBC
was the holder of the note at inception, and the trial court determined that, as a
matter of law, this was sufficient to establish standing.
Nevertheless, Aquasol’s counsel insisted on circling back to the legal
determination previously made by the court, and persisted in pursuing the same
line of questioning deemed irrelevant by the court. After the trial court sustained
several more objections to this line of questioning, and advised counsel to stop
pursuing this line of questioning (under pain of contempt),5 the following exchange
took place:
5 We commend the trial court for the patience it exhibited before resorting to the
threat of sanctions. Though the transcript is but a cold record, it nevertheless
reveals the heat (rather than light) brought by Aquasol’s counsel, who continued to
defy the trial court’s previous rulings, continued to reargue legal positions
previously decided, and continued to pursue a line of questioning ruled irrelevant.
An attorney is not entitled to defy a court’s ruling merely because he thinks it
incorrect, and can be held in contempt for such conduct even if it turns out the trial
court’s ruling was erroneous. Rubin v. State,
490 So. 2d 1001, 1003 (Fla. 3d DCA
6
MR. JACOBS [counsel for Aquasol]: I'm just putting on
the record, Your Honor, that I asked the Court to
consider whether the Court has already pre-judged the
case and has already decided the issues before hearing all
the evidence and hearing all the facts, before hearing all
my arguments, which, I think, the fact that Your Honor –
THE COURT: What is your motion, Mr. Jacobs?
MR. JACOBS: I'm asking the Court to continue this
trial so that I can file a proper motion for disqualification,
and I do that with a heavy heart—
THE COURT: Okay, your motion's denied. Do you have
any further questions for this witness?
MR. JACOBS: I'm laying the record, please, Your
Honor. The Florida Supreme Court instructs that when a
lawyer makes a motion to disqualify a judge, because
that motion must be in writing, I cannot make that
motion for disqualification orally. I have to go back
to my office, I have to prepare it, it has to be signed by
the client, and then I can submit it to the Court, and if the
Court finds that it's legally sufficient, or that it is legally
sufficient on its face, then it must be granted.
THE COURT: Your motion for continuance is denied.
(Emphasis added.)
1986) (holding: “It is well settled in this state, and elsewhere, that where a court
acting with proper jurisdiction and authority renders an order, an aggrieved party's
failure to abide by the order may be punished by contempt even if the order is
ultimately found to be erroneous”); Ward v. State,
354 So. 2d 438, 439 (Fla. 3d
DCA 1978) (holding: “The orderly conduct of a trial requires that a defendant and
his attorney obey the rulings of the trial judge and appeal those rulings which are
objectionable. A refusal to obey the rulings of the trial judge on the ground that
the ruling is improper may result in the inability of the courts to administer
justice.”)
7
Aquasol contends that, because counsel is not permitted to make an oral
motion for disqualification during trial, the trial court was required to grant a
continuance to allow him to file a written motion. Aquasol’s premise is incorrect,
however, as this very circumstance is expressly provided for in Florida Rule of
Judicial Administration 2.330(e):
A motion to disqualify shall be filed within a reasonable
time not to exceed 10 days after discovery of the facts
constituting the grounds for the motion and shall be
promptly presented to the court for an immediate ruling.
Any motion for disqualification made during a
hearing or trial must be based on facts discovered
during the hearing or trial and may be stated on the
record, provided that it is also promptly reduced to
writing in compliance with subdivision (c) and promptly
filed. A motion made during hearing or trial shall be
ruled on immediately.6
(Emphasis added.)
Aquasol did not make an oral motion for disqualification, instead requesting
a continuance of the trial to prepare a written motion. When the trial court denied
the motion for continuance, Aquasol’s counsel should have, pursuant to the rule,
orally stated its motion for disqualification on the record. And although the
requested continuance was denied at that point, the trial court shortly thereafter
recessed the trial and advised counsel that he could take that opportunity to put his
6 This provision, permitting an oral motion for disqualification during trial or
hearing, was added by a 2003 amendment to the rule, see Amendments to the
Florida Rules of Judicial Admin. (2-Year Cycle),
851 So. 2d 698 (Fla. 2003),
rendering inapposite the pre-amendment cases relied upon by Aquasol.
8
motion in writing and file it with the court. Upon returning to the bench to resume
the trial, the trial court permitted counsel additional time to complete the written
motion. Aquasol’s counsel requested further additional time, which the trial court
denied, and we find no abuse of discretion in the trial court’s decision. Upon our
review of the record, we conclude that Aquasol’s counsel was given a reasonable
opportunity to make an oral motion for disqualification (which he did not do) and
was given a reasonable opportunity to prepare and file a written motion for
disqualification (which he did do and which was properly determined to be legally
insufficient). We further note that Aquasol never filed a supplement to its written
motion for disqualification, and in its motion for rehearing before the trial court,
and its briefs on appeal, Aquasol failed to allege how it was prejudiced by the trial
court’s denial of further additional time, and failed to proffer what other
allegations it would have included in its written motion if allotted such further
additional time.
2. HSBC’s Standing to Foreclose
This brings us to the corollary issue raised by Aquasol on appeal: that
HSBC, as holder of the note, lacked standing to foreclose because it was not the
holder and owner of the note. We review this question de novo. Sosa v. Safeway
Premium Fin. Co.,
73 So. 3d 91 (Fla. 2011); Wells Fargo Bank, N.A. v. Morcom,
125 So. 3d 320 (Fla. 5th DCA 2013). We conclude, as this court and our sister
9
courts have previously held, that HSBC had standing to foreclose if at the time of
filing the action it was the holder or owner of the note.
We begin by pointing out that this issue was recently addressed by this court
in HSBC Bank USA, N.A. v. Buset,
241 So. 3d 882 (Fla. 3d DCA 2018). In its
briefs, however, Aquasol has failed even to acknowledge, much less address, the
Buset opinion.7 This is all the more curious given the fact that counsel for
Aquasol was also counsel of record for Buset in that appeal, so it is difficult to
fathom how this failure could be attributed to mere oversight. We take this
opportunity to remind Aquasol’s counsel that the Rules of Professional Conduct
mandate candor toward the tribunal. See Rule Regulating the Florida Bar 4-
3.3(a)(3), which provides that “[a] lawyer shall not knowingly . . . fail to disclose
to the tribunal legal authority in the controlling jurisdiction known to the lawyer to
be directly adverse to the position of the client and not disclosed by opposing
counsel.” See Dilallo v. Riding Safely, Inc.,
687 So. 2d 353, 355 (Fla. 4th DCA
1997) (observing that “the Rules of Professional Conduct of the Florida Bar
require candor toward the tribunal, and a duty of competence. Rule 4–1.1 and Rule
4–3.3(3) imply a duty to know and disclose to the court adverse legal authority.”)
7 Our opinion in Buset was released on January 7, 2018. The initial brief in the
instant appeal was filed on April 10, 2018. The reply brief was filed on June 18,
2018. Although Buset was still pending rehearing at the time, it nevertheless was
binding precedent, and Aquasol was duty-bound to cite it. See Rock v. State,
800
So. 2d 298 (Fla. 3d DCA 2001); Kraay v. State,
148 So. 3d 789 (Fla. 1st DCA
2014).
10
See also Lieberman v. Lieberman,
160 So. 3d 73 (Fla. 4th DCA 2014) (awarding
appellate attorney’s fees as a sanction for counsel’s failure to acknowledge clear
and unambiguous controlling case law directly adverse to his client’s position,
resulting in unnecessary and protracted litigation).
Our opinion in Buset was issued just three days before trial commenced in
the instant case. In fact, Aquasol’s counsel took the same position he urged in
Buset, contending that HSBC was required to prove it held and owned the note.
The trial court then correctly noted our recent rejection of that argument:
MR. JACOBS: It has been the law since the late 1800s,
Florida Supreme Court precedent says that you must
prove you own and hold the note and mortgage. And that
law has been shifted, I think, in an unconstitutional way
in foreclosures.
THE COURT: You'll preserve that for appeal because
our appellate court just said [in Buset] you either have to
own or hold the note.
As the trial court accurately noted, we held in
Buset, 241 So. 3d at 888-89:
Because a foreclosure case is an action to enforce a
negotiable instrument, standing in a foreclosure case is
not based upon ownership of the note; it is based instead
on whether the plaintiff is a “person entitled to enforce.”
§ 673.3011. The term “person entitled to enforce” is a
technical, defined term in all versions of the Uniform
Commercial Code, including Florida's.
Id. An entity may
qualify as a “person entitled to enforce” for several
reasons, but the most common reason is that the entity is
“the holder of the instrument.”
Id. In a case where the
plaintiff is asserting standing based upon its status as a
“person entitled to enforce” because it is the holder of the
11
instrument, proof of who owns the note is not necessary
or even relevant to the issue of standing.
Id. (“A person
may be a person entitled to enforce the instrument even
though the person is not the owner of the instrument or is
in wrongful possession of the instrument.”)
Proof of who owns the note, such as a chain of title, may
be relevant to a dispute where a person claims his or her
ownership interest trumps the interest of the holder, but
the borrower cannot make this argument on its own;
instead, the person making that claim must be “joined in
the action and personally assert[ ] the claim against the
person entitled to enforce the instrument.” § 673.3051(3).
Even then, ownership is not relevant to standing so much
as the question of who is the ultimate beneficial owner of
the proceeds of the foreclosure, an issue not normally or
necessarily part of a foreclosure case. (Footnote omitted).
Our decision in Buset is consistent with the decisions of our sister courts.
See e.g., Wilmington Savings Fund Society, FSB v. Louissaint,
212 So. 3d 473,
475-76 (Fla. 5th DCA 2017)(holding: “‘A person entitled to enforce the note and
foreclose on a mortgage is the holder of the note, a non-holder in possession of the
note who has the rights of a holder, or a person not in possession of the note who is
entitled to enforce under section 673.3091, Florida Statutes.’” (quoting Gorel v.
Bank of N.Y. Mellon,
165 So. 3d 44, 46 (Fla. 5th DCA 2015))) “‘If an
indorsement is made by the holder of an instrument and it is not a special
indorsement, it is a “blank indorsement.” When indorsed in blank, an instrument
becomes payable to bearer and may be negotiated by transfer of possession alone
until specially indorsed.’” (citing § 673.2051(2), Fla. Stat. (2015)). “‘[U]nder the
12
Uniform Commercial Code, a plaintiff is not required to be both the owner and
holder of the note in order to have standing to foreclose’” (quoting Tilus v. AS
Michai, LLC,
161 So. 3d 1284, 1285-86 (Fla. 4th DCA 2015))); Phan v. Deutsche
Bank Nat. Trust Co., ex rel. First Franklin Mortg. Loan Trust 2006-FF11,
198 So.
3d 744 (Fla. 2d DCA 2016); Meilleur v. HSBC Bank USA, N.A.,
194 So. 3d 512
(Fla. 4th DCA 2016);
Tilus, 161 So. 3d at 1285-86 (holding: “The plaintiff must
prove that it had standing to foreclose at the time the lawsuit was filed. We clarify,
however, that under the Uniform Commercial Code, a plaintiff is not required to be
both the owner and holder of the note in order to have standing to foreclose.
Instead, the plaintiff may establish standing by showing that it owns or holds the
note, or is otherwise entitled to enforce the note” (internal citations and footnote
omitted)); Murray v. HSBC Bank USA,
157 So. 3d 355 (Fla. 4th DCA 2015);
Lewis v. J.P. Morgan Chase Bank,
138 So. 3d 1212 (Fla. 4th DCA 2014); Stone
v. BankUnited,
115 So. 3d 411 (Fla. 2d DCA 2013); U.S. Bank Nat. Ass’n v.
Knight,
90 So. 3d 824, 826 (Fla. 4th DCA 2012)(observing: “Thus, to have
standing, an owner or holder of a note, indorsed in blank, need only show that he
possessed the note at the institution of a foreclosure suit; the mortgage necessarily
and equitably follows the note.”); McLean v. JP Morgan Chase Bank Nat’l Ass’n,
79 So. 3d 170 (Fla 4th DCA 2012); Riggs v. Aurora Loan Servs., LLC,
36 So. 3d
932 (Fla. 4th DCA 2010); Mazine v. M & I Bank,
67 So. 3d 1129, 1131 (Fla. 1st
13
DCA 2011) (“Because a promissory note is a negotiable instrument and because a
mortgage provides the security for the repayment of the note, the person having
standing to foreclose a note secured by a mortgage may be either the holder of the
note or a nonholder in possession of the note who has the rights of a holder.”);
Taylor v. Deutsche Bank Nat. Trust Co.,
44 So. 3d 618 (Fla. 5th DCA 2010).
In support of its position, Aquasol relies upon Florida Supreme Court
decisions from the late 1800’s and early 1900’s. As our sister courts have done,
we reject this argument, as those decisions were based upon the then-existing
common law, long before the Legislature’s adoption of the Florida Uniform
Commercial Code, including Chapter 673 (entitled “Uniform Commercial Code:
Negotiable Instruments”), which governs the issue presented. See, e.g.,
Morcom,
125 So. 3d at 322 (noting: “Appellees cite Florida Supreme Court precedent dating
back to the late 1800s to suggest Appellant must both hold and own the note and
mortgage to satisfy the standing requirement for a foreclosure action. The cases
Appellees cite are not persuasive because the supreme court decided the cases prior
to the adoption of the now-instructive and binding Florida UCC”); Tilus,
161 So.
3d at 1286.
Affirmed.
14
