MACK D. LEWIS v. INNOVA INVESTMENT GROUP, LLC

• Court: District Court of Appeal of Florida
• Decided: October 2, 2019
• Docket: 18-2116
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

MACK D. LEWIS, ) ) Appellant, ) ) v. ) Case No. 2D18-2116 ) INNOVA INVESTMENT GROUP, ) LLC, and SHAREESE LEWIS, ) ) Appellees. ) )

Opinion filed October 2, 2019.

Appeal from the Circuit Court for Polk County; Steven L. Selph, Judge.

James N. Charles of Law Office James N. Charles, Celebration, for Appellant.

Matthew Estevez of Matthew Estevez, P.A., Doral, for Appellee Innova Investment Group, LLC.

No appearance for Appellee Shareese Lewis.

ATKINSON, Judge.

Mack D. Lewis appeals the Final Summary Judgment of Foreclosure

entered in favor of Innova Investment Group, LLC (Innova). On the day before the

foreclosure sale, Mr. Lewis filed a petition in United States Bankruptcy Court, Middle District of Florida, under chapter 7 of the bankruptcy code. After issuing an order to

show cause, we took judicial notice of the statement of intentions and the order of

discharge entered in Mr. Lewis' bankruptcy case. In the statement of intentions, Mr.

Lewis elected to surrender the subject property. Innova contends that Mr. Lewis is

estopped from challenging the foreclosure judgment because he agreed to surrender

the subject property in his bankruptcy case. We agree and dismiss the appeal as moot.

Borrowers, like Mr. Lewis, who have surrendered real estate in their

bankruptcy cases, cannot subsequently contest a mortgage foreclosure action involving

that property. See, e.g., Sayles v. Nationstar Mortg., LLC, 268 So. 3d 723, 727 (Fla. 4th

DCA 2018) (holding that the borrower was judicially estopped from contesting standing

in the foreclosure action because Sayles surrendered the property in her bankruptcy

case); Clay Cty. Land Tr. v. HSBC Bank USA, N.A., 219 So. 3d 1015, 1016 (Fla. 1st

DCA 2017) (concluding that after stipulating to the surrender of the properties in the

bankruptcy proceeding, the land trust was estopped from challenging the foreclosure);

see also In re Failla, 838 F.3d 1170, 1178 (11th Cir. 2016) ("Because the Faillas filed a

statement of intention to surrender their house, they cannot contest the foreclosure

action."); In re Metzler, 530 B.R. 894, 899 (Bankr. M.D. Fla. 2015) ("[T]his [c]ourt

concludes that relinquishing property and making it available to the secured creditor—

i.e., 'surrendering' the property—means not taking an overt act to prevent the secured

creditor from foreclosing its interest in the secured property.").

This court recently found error in the application of the doctrine of judicial

estoppel to prohibit a defendant from raising a standing defense when judicially noticed

documents did "not reflect . . . the surrender of the . . . property." Fischer v. HSBC Bank

-2- USA, Nat'l Ass'n for Deutsche Alt-A Sec., Inc., Mortg. Loan Tr., Series 2006-AR1, 257

So. 3d 512, 515 (Fla. 2d DCA 2018). But unlike the debtor in Fischer, Mr. Lewis clearly

and unambiguously declared in his statement of intentions his election to surrender the

subject property. See Sayles, 268 So. 3d at 727 ("Unlike Fischer, however, there is no

uncertainty of the property’s surrender in this case."). As a result, Mr. Lewis is judicially

estopped from contesting the foreclosure judgment, thereby rendering this appeal moot.

See Clay Cty., 219 So. 3d at 1016 (holding that an appeal from a foreclosure judgment

was moot after the parties entered into a stipulation in the land trust's bankruptcy case

providing for the surrender of all interest in the subject properties); Rivera v. Bank of

Am., N.A. ex rel. BAC Home Loans Servicing, L.P., 190 So. 3d 267, 267 (Fla. 5th DCA

2016) (dismissing a foreclosure appeal where the debtor had admitted in his bankruptcy

case that "he owed a non-contingent, undisputed mortgage debt to Appellee, and he

surrendered the mortgaged property to Appellee").

Dismissed.

NORTHCUTT and SILBERMAN, JJ., Concur.

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