Opinion
Case No: 6:14-cv-248-Orl-37KRS
05-01-2015
PNC BANK, NATIONAL ASSOCIATION, Plaintiff, v. LUCMAUR, LLC, CENTER FORDERMATOLOGY & SKIN SURGERY, ENID F. BURNETT, MD, P.A., ENID F. BURNETT and LONGWOOD OFFICE PARK OWNERS ASSOCIATION, INC., Defendants.
REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT:
This cause came on for consideration without oral argument on the following motions filed herein:
MOTION: PLAINTIFF'S MOTION FOR APPOINTMENT OF [SPECIAL] MASTER TO CONDUCT FORECLOSURE SALE (Doc. No. 87)
FILED: February 12, 2015
MOTION: PLAINTIFF'S MOTION FOR LEAVE TO FILE ORIGINAL PROMISSORY NOTE (Doc. No. 88)
FILED: February 12, 2015
The Court has entered summary judgment in favor of Plaintiff PNC Bank, National Association ("PNC Bank") against all Defendants in this case except Longwood Office Park Owners Association, Inc. (the "Association"). Doc. No. 82. By separate Report and Recommendation, I have recommended that the Court enter a final default judgment against the Association. Doc. No. 100. If the Court enters a final default judgment against the Association, the foregoing motions are ripe for resolution.
Pursuant to Florida law, the original promissory note sued upon must be surrendered prior to the issuance of a foreclosure final judgment. See, e.g., Perry v. Fairbanks Capital Corp., 888 So. 2d 725, 727 (Fla. 5th Dist. Ct. App. 2004). Alternatively, the Court can require that the original promissory note be presented to the Clerk of Court for cancellation. See, e.g., PNC Bank, N.A. v. Starlight Props. & Holdings, LLC, No. 6:13-cv-408-Orl-36KRS, 2014 WL 2574040, at *2 (M.D. Fla. June 9, 2014). Either procedure removes the promissory note from the stream of commerce, preventing someone else from trying to enforce it against the defendant a second time. For these reasons, I respectfully recommend that the Court grant the Motion for Leave to File Original Promissory Note, Doc. No. 88, and require that the original promissory note either be surrendered to the Clerk of Court or presented to the Clerk of Court for cancellation before the Court directs the Clerk to Court to enter a final judgment in this case.
As part of the final judgment, PNC Bank requests, pursuant to Federal Rule of Civil Procedure 53(a)(2)(C), that the Court appoint Philip J. von Kahle, Esq., as a special master to conduct the foreclosure sale. Other judges of this Court have found that "[a]bsent a basis for disqualification, federal courts routinely appoint special masters to conduct foreclosure sales." Stearns Bank Nat'l Ass'n v. Marrick Props., LLC, No. 8:11-cv-2305-T-AEP, 2012 WL 1155657, at *3 (M.D. Fla. Apr. 5, 2011). Based on Mr. von Kahle's declaration and supporting resume (Doc. Nos. 87-1 & 87-2), he is qualified to serve as a special master and no basis for his disqualification is shown. There is no district judge or magistrate judge available to timely and effectively conduct the foreclosure sale and transfer of title. Therefore, I respectfully recommend that the Court grant Plaintiff's Motion for Appointment of [Special] Master to Conduct Foreclosure Sale, Doc. No. 87, and direct Mr. von Kahle to act according to procedures established by the Court.
Within the time to file objections to this Report and Recommendation, PNC Bank shall provide to the chambers email address of the presiding District Judge a proposed Final Judgment and a proposed Order Appointing Special Master in word processing format.
Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
Recommended in Orlando, Florida on May 1, 2015.
/s/_________
KARLA R. SPAULDING
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy