SUPREME COURT OF FLORIDA

CASE NO.: SC[ 61,9LT No.: 4D13-20 , S P

12-532j AMAXMAR REALTY, LLC )and JEAN-LUC ANDRIOT, ) Fla. Bar No.: 480400

)Defendants/Appellants, )

v. ))

BANKUNITED, N.A., ))

Plaintiff/Appellee, ))

INITIAL BRIEF

Gary Barcus, Esq.Attorney for Maxmar Realty, LLCAnd Mr. Jean-Luc Andriot

TABLE OF CONTENTS

PAGEI. Statement of the Case................................................... 1-3

II. Facts ....................................................................... 4-7

III. Issues to be Considered upon Appeal ................................. 8

1. Whether the personal guaranty of the mortgage by Jean-Luc Andriot,not even mentioned in the Assignment ofMortgage [Appendix #1],was also assigned out of the bank failure ofBankUnited, FSB toBankUnited, N.A. without any written assignment of the guaranty?

2. Whether the "open endorsement" from BankUnited FSB, which failedand was taken over by the Federal Deposit Insurance Corporation(FDIC),was extinguished forever, requiring a written assignment of alllending documents by the FDIC to BankUnited N.A.?

IV. Analysis of Law ......................................................... 9-15

V. Conclusion ............................................................... 16-17

Certificate of Service ........................................................... 18

Certificate of Compliance .................................................... 18

Table of Cases Cited .......................................................... ii

Statutes Cited .................................................................. iii

TABLE OF CASE CITED

BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936(Fla. 18'DCA 2010) ................................................................ 13

Bellaire Securities Corporation v. Brown, 168 So. 625 (Fla. 1936)....... 6,9

Chen v. Whitney Nat'l Bank, 65 So. 3d 1170 (Fla. 1** DCA 2011)......... 12

Gee v. U.SBankNat'l Ass'n, 72 So. 3d 211 (Fla. 5th DCA 2011).......... 13

Gonzalez v. Deutsche Bank Nat'l Trust Co., 95 So. 3d 25 1

(Fla. 2d DCA 2012)............................................................... 13

In re Mariner Enterprises ofPanama City, Inc., 131 B.R. 190(Bankr. N.D. Fla. 1989)................................................................. 14

James K. Lindsey v. Wells Fargo Bank, N.A., 1D12-2406 ,Opinion filed February 27, 2013 (Fla. 1** DCA 2013) [copy attached].... 2,9,11

Lizio v. McCullum, 36 So. 3d 927 (Fla. 4th DCA 2010)..................... 12

Mazine v. M& IBank, 67 So. 3d 1129 (Fla. 18' DCA 2011)............... 13

McKinnon-Young Co. v. Stockton, 53 Fla. 734, 44 So. 237 (Fla. 1907)... 15

Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195 (Fla. 4th DCA 2012).... 13

Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932 (Fla. 4th DCA 2010). 12

Sunland Mortgage Corp. v. Lewis, 515 So.2d 1337 (Fla. 5th DCA 1987).. 14

Tomasello v. Lewis, 100 Fla. 132, 129 So. 328 (Fla. 1930).................. 14

Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp.,LLC, 75 So. 3d 773 (Fla. 4th DCA 2011)....................................... 13

11

STATUTES CITED

Florida Statute Section 673.2031(4) defining "Transfer of Instrument"... 9-11

Florida Statute Section 671.201(13) defining "Creditor".................... 11,9

Florida Statute Section 658.80 Appointment of receiver or liquidator.... 14

Florida Statute Section 658.82 Receiver, powers and duties............... 14

Florida Statute Section 658.83 Liquidator, powers and duties............. 14

Florida Statute of Frauds Section 725.01 ...................................... 6,9

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I. Statement of the Case

Simply, BankUnited, N.A. could never acquire ownership of the

mortgage, note, and personal guaranty based upon the theory of "open

endorsement" from the failed bank BankUnited, FSB. Why? Because the open

endorsement of the lending instruments was extinguished when BankUnited, FSB

was taken over by the Federal Deposit Insurance Corporation (FDIC). The

important distinction is that the FDIC functions in one of two modes: (1)

"Conservator" in which it takes over a failing bank, conserves its assets, divests

certain negative assets, and allows the then recovered bank to continue operating,

almost like a hospital stay; or (2)"Receiver" in which the FDIC takes over a failed

bank, liquidates certain assets and sells other assets, and formally extinguishes the

existence of the failed bank, almost like a trip to the morgue. When the FDIC, as

Receiver, took over the failed BankUnited, FSB, the existing open endorsements

died. The only way for the lending assets to be legally valid from the FDIC by the

newly created BankUnited, N.A., would be for it to purchase those lending assets

by assignment. The dead BankUnited, FSB could not pass ownership through

"open endorsement" to BankUnited, N.A. Therefore, the foreclosure lawsuit

brought by BankUnited, N.A. against Maxmar Realty, LLC and Mr. Jean Luc

Andriot on the theory of "open endorsement" is invalid, and either the Motion for

Summary Judgment or the Motion to Dismiss should have been granted.

1

It should be emphasized at this point that the lawyers for BankUnited, N.A stated

at the hearings that the bank did not base its case upon the legal theory of

assignment of contracts, rather only upon the legal theory of "open endorsement."

BankUnited, N.A. does not own the personal guaranty of Mr. Jean

Luc Andriot. BankUnited, FSB failed, and was forced into receivership by the

Federal Deposit Insurance Corporation (FDIC) as a failed Federal Savings Bank

that then ceased to exist. The FDIC acquired the assets of the failed bank.

Investors formed a new bank and named it BankUnited, N.A. so as to avoid paying

$10,000,000 in new signage. BankUnited, N.A. acquired by the Assignment of

Mortgage (Appendix #1) only the mortgage of Maxmar Realty, LLC and not the

personal guaranty of Mr. Jean-Luc Andriot, which was not mentioned in the

Assignment of Mortgage. And, the Assignment of Mortgage (Appendix #1) does

not specifically include any assignment of the Promissory Note of Maxmar Realty,

LLC. A serious question thereby does arise as to whether the Promissory Note

follows the Mortgage in light of the recent newly minted case of James K. Lindsey

v. Wells Fargo Bank, N.A., 1D12-2406 , Opinion filed February 27, 2013 (Fla. 1

DCA 2013). It would certainly be cleaner, neater, and legal, if the Assignment was

required to specifically mention, name, articulate, ALL of the documents being

assigned, as this would comply with the Statute of Frauds, and not assert that all of

the documents were assigned although not all mentioned in the assignment.

2

Appellants filed a Motion to Dismiss and a Motion for Summary

Judgment or for Partial Summary Judgment to at least get Mr. Andriot out of the

lawsuit. With no signed writing to evidence any right to sue Mr. Andriot, the trial

judge nonetheless denied both the defensive Motion to Dismiss and the Motion for

Summary Judgment or for Partial Summary Judgment. BankUnited N.A has no

proper standing to sue either appellant, certainly not under the theory of "open

endorsement as the open endorsement of the failed bank was extinguished when

the FDIC, as Receiver, took over the failed ban. And, neither can it bring suit on

the legal theory of assignment, as its lawyers told the judge they had not based

their suit on assignment, and also because the Assignment from the FDIC was

incomplete, not expressly naming Mr. Andriot's alleged personal guaranty, and

other fatal faults in the purported Assignment.

The trial court's rulings on the motions should be reversed in whole or

in part, as they are clearly erroneous.

3

II. Facts

1. Take a moment to closely look at the Assignment ofMortgage

(Appendix #1), and see for yourself that only the mortgage was assigned by the

FDIC to BankUnited N.A. Without a written assignment of any personal guaranty

by Mr. Andriot, BankUnited N.A. has no standing to sue Mr. Andriot, and he

should be dismissed from the lawsuit permanently. It is not fair that Mr. Andriot is

forced to defend an expensive lawsuit brought by BankUnited, N.A. which has no

written assignment of any documents involving Mr. Andriot, and only an expired

and terminated indorsement by the bank failure of BankUnited FSB, a dead issue,

and ineffectual upon which to sue Mr. Andriot. (Appendix #1). It describes only

the assignment of the mortgage, nothing more. There is no mention of any

guaranty of Mr. Andriot, and there is therefore no assignment of anything other

than the mortgage, nothing more. Please note also that the lawyers who drafted the

Assignment of Mortgage are the same lawyers who brought suit against Mr.

Andriot, without any right to do so. Preparing the assignment, and then also

subsequently filing this lawsuit based upon a document in question, is a clear

conflict of interest of plaintiff's law firm. It is axiomatic in Florida that a contract

is construed against the party that drafted it. Factually, Appellee drafted the

assignment, and therefore any ambiguities are construed against it. Using this rule

of interpretation, the Assignment of Mortgage only assigns the mortgage, nothing

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more, and certainly not any personal guaranty allegedly signed by Mr. Andriot.

The trial court erred in not granting the Motion to Dismiss and not granting the

defensive Motion for Summary Judgment filed by Mr. Andriot both motions of

which should have ended Mr. Andriot's participation in this lawsuit.

2. In addition to the Assignment of the Mortgage from the FDIC to

BankUnited N.A. of the the mortgage previously owned by the commercially and

legally dead BankUnired FSB, the Appellee included attached to its complaint an

"ALLONGE TO PROMISSORY NOTE" [Appendix #3]. At the hearing on the

motions, the attorney for BankUnited N.A. argued that the plaintiff/appellee was

relying on the open endorsements in the Allonge to Promissory Note, and not the

assignment [Appendix #2, at page 9, lines 5-16]. Appellee cannot have standing

to enforce a dead, extinguished by the bank failure of BankUnited FSB, purported

open endorsement. Even if it could, the open endorsement is part of a document

entitled "Allonge to Promissory Note." But the Promissory Note was NOT

included in the Assignment of the Mortgage, so the reliance by appellee on the

open endorsement on the Promissory Note not included in the Assignment of

Mortgage is barred by the Statute of Frauds. To reiterate, the Assignment of

Mortgage which does not specifically mention the Promissory Note nor the

Allonge to Promissory Note is effective only to assign the mortgage from the FDIC

to BankUnited N.A., not the Promissory Note and not the alleged Personal

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Guaranty of Mr. Androit.

3. And the open endorsements on the Allonge to the Promissory Note

are ineffective for two reasons: (1) the original open endorser failed, is

commercially dead, and the alleged open endorsement died with it when the FDIC

took over the failed endorser; and (2) even if the open endorsements are still valid,

they were not validly assigned by the Assignment of Mortgage which is silent as to

the Promissory Note, and the the alleged Jean-Luc Andriot personal guaranty, and

also the Allonge to the P.romissory Note. The Statute of Frauds Florida Statute

725.01 which was elaborated upon by the Appellant at the hearing on the motions,

see [Appendix #2 on pages 12-13] requires all of these interests to real property

by in writing, and none of it is in writing such that would grant Appellee standing

to sue Mr. Andriot, nor to sue Maxmar Realty, LLC based upon an extinguished

open endorsement. Not to put too fine a point on the Statute of Frauds argument,

but the Supreme Court case ofBellaire Securities Corporation v.Brown, 168 So.

625, at 636 (Fla. 1936) is dispositive of this case: "Under the Statute of Frauds

written memorandum for sale of land must designate land and disclose the terms of

sale to another contracting party... so that he can be identified without parole

proof." [Appendix #2, page 12 lines 11-25 and page 13 lines 1-10] The court

goes on to recite the entire Statute of Frauds. Here, in this appeal, by analogy, the

failure to name Mr. Androit in the Assignment of Mortgage is proof that Appellee

6

has no standing to sue him.

7

III. Issues to be Considered upon Appeal

1. Whether the personal guaranty of the mortgage by Jean-Luc Andriot,not even mentioned in the Assignment ofMortgage [Appendix #1],was also assigned out of the bank failure of BankUnited, FSB toBankUnited, N.A. without any written assignment of the guaranty?

2. Whether the "open endorsement" from BankUnited FSB, which failedand was taken over by the Federal Deposit Insurance Corporation(FDIC),was extinguished forever, requiring a written assignment of alllending documents by the FDIC to BankUnited N.A.?

8

III. Analysis of Law

ISSUE #1

Whether the personal guaranty of the mortgage by Jean-Luc Andriot, not evenmentioned in the Assignment of Mortgage [Appendix #1], was also assigned outof the bank failure of BankUnited, FSB to BankUnited, N.A. without any writtenassignment of the guaranty?

1. Conclusively, there was no written assignment of the alleged Personal

Guaranty of Appellant, and there was no written assignment ofof the Promissory

Note against Maxmar Realty, LLC. Therefore, without any written assignment of

either of those alleged instruments, attempts to enforce either or both by Appellee

are clearly and explicitly barred by the Statute of Frauds 725.01 as previously

detailed, and not just by the Statute of Frauds, but also by the Supreme Court case

ofBellaire Securities Corporation v. Brown, supra.

2. Please recall that the Assignment of Mortgage from the FDIC

[Appendix #1] only mentions the mortgage, and not the promissory note and not

the personal guaranty, so the assignment attempts to transfer less than the entire

instrument. The attempt to transfer less than the entire instrument negates any

transfer under the statute governing the "Negotiation, Transfer, and Indorsement"

at Florida Statute Section 673.2031(4) which states:

"(4) If a transferor purports to transfer less than the entireinstrument, negotiation of the instrument does not occur. Thetransferee obtains no rights under this chapter and has only therights of a partial assignee."

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So, under the Uniform Commercial Code, Negotiable Instruments, at 673.2031(4),

the transferor (which in our fact pattern is the FDIC) did not transfer under the

Assignment of Mortgage either the alleged personal guaranty of Mr. Androit nor

the Promissory Note, at best only the mortgage. Therefore, Appellee does not have

any negotiable instrument rights, only whatever rights it may have under the

Assignment of Mortgage, which its lawyer stated in open court at the hearing on

the motion Appellee was not relying on, rather that Appellee is relying on the

negotiable instrument statute which clearly under these facts it is not entitled to

rely, only upon the partial assignment rights of the mortgage, if at all. The motions

hearing judge should have granted the Motion to Dismiss and the defensive Motion

for Summary Judgment at least as to Mr. Andriot appellant. Now, he is faced with

a long, unnecessary under these facts, and expensive trial to vindicate his rights.

10

ISSUE #2

Whether the "open endorsement" from BankUnited FSB, which failed and wastaken over by the Federal Deposit Insurance Corporation (FDIC), wasextinguished forever, requiring a written assignment of all lending documents bythe FDIC to BankUnited N.A.?

3. Yes, by definition under the Uniform Commercial Code, General

Provisions, Part II, General Definitions and Principles of Interpretation, at Section

671.201(13) which defines "Creditor" as follows:

"(13) "Creditor" includes..., a receiver in equity, and anexecutor or administrator of an insolvent debtor's or assignor'sestate."

The FDIC is in fact a creditor of the failed BankUnited, FSB as defined above,

because the FDIC is a receiver in equity, and an executor or administrator of an

insolvent debtor's or assignor's estate." Therefore, as the defined "creditor" under

the statute, the FDIC could not pass on an active, alive, valid open endorsement of

the insolvent failed BankUnited FSB to BankUnited N.A. because the failed of the

insolvent bank extinguished the purported original open endorsement. And even if

the FDIC could pass an open endorsement from the failed bank, it would require a

full and complete assignment of all of the instruments on the purported open

endorsement, as we discussed above when analyzing F.S. 673.2031(4).

4. Furthermore, in addition to the above statutory analysis of the two

issues in this appeal, the newly minted case ofJames K. Lindsey v. Wells Fargo

Bank, N.A., 1D12-2406, Opinion filed February 27, 2013 (Fla. l®' DCA 2013)

11

[copy attached] needs to be discussed due to its similarities to this appeal. One case

cited in Lindsey, supra, is Lizio v. McCullum, 36 So. 3d 927, 929 (Fla. 4th DCA

2010)"Where the defendant denies that the party seeking foreclosure has an

ownership interest in the mortgage, the issue becomes an issue that plaintiffmust

prove." By analogy, BankUnited N.A. had to prove that it has standing to sue and

a perfected legal right to foreclose prior to filing foreclosure, and it has not.

5. Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932 (Fla. 4th DCA

2010) stands for the premise that possession of the original note, indorsed in blank,

was sufficient under Florida's Uniform Commercial Code to establish that Aurora

was the lawful holder of the note, entitled to enforce its terms. However, here we

have the opposite, BankUnited N.A. does not have an original note indorsed in

blank, at best (if the Receivership had not completely extinguished the open

endorsement in the Allonge) it has only the mortgage but it disavows the

Assignment of Mortgage, and that does not confer standing upon BankUnited N.A

to sue either of the Appellants. The case should have been dismissed for lack of

standing.

6. This court has the right to review the trial court's ruling on the

summary judgment and the Motion to Dismiss de novo. See Chen v. Whitney Nat'l

Bank, 65 So. 3d 1170 (Fla. l®' DCA 2011). Summary Judgment is proper where

there is no issue of material fact and the moving party is entitled to judgment as a

12

matter of law. The moving party must factually refute or establish that opposing

arguments are legally insufficient. Appellants have done so under the facts of this

instant case. BankUnited N.A. admitted to the court that it is not suing upon the

Assignment of the Mortgage, rather it is relying upon the open endorsements

which died before this lawsuit when the BankUnited FSB failed and the

incomplete assignment barred enforcing the purported open endorsements.

7. "To have standing to foreclose, it must be demonstrated that the

plaintiff holds the note and mortgage in question." Mazine v. M& IBank, 67 So.

3d 1129, 1132 (Fla. 18' DCA 2011); see also BAC Funding Consortium, Inc. v.

Jean-Jacques, 28 So. 3d 936 (Fla. 1®' DCA 2010). The plaintiffmust have the

requisite standing when the foreclosure complaint is filed. See Rigby v. Wells

Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012) (quoting Venture

Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773,

776 (Fla. 4th DCA 2011).

8. In this case, BankUnited N.A. had the burden to demonstrate that is

held the MaxMar Realty, LLC note and mortgage when it filed the complaint

March 19, 2012, the date that it filed its complaint for foreclosure. It did not. See

Gonzalez v. Deutsche Bank Nat 'l Trust Co., 95 So. 3d 251, 253-254 (Fla. 2d DCA

2012); Gee v. U.S Bank Nat'l Ass 'n, 72 So. 3d 211, 213-14 (Fla. 5th DCA 2011)

(same); Rigby, 84 So.3d at 1196 (same); BAC Funding Consortium, 28 So. 3d at

13

938 (same). The Summary Judgment in favor of Maxmar Realty, LLC and Jean-

Luc Andriot should have been granted.

9. Now would be a good time to take a much closer look at the state

parallel statutes relevant to these facts, especially the Florida banking statute

"Banks and Trust Companies" at sections 658.80 Appointment of receiver or

liquidator; 658.82 Receiver; powers and duties; and 658.83 Liquidator; powers and

duties. These are state empowerment statutes that parallel authorizing the FDIC in

to take over BankUnited, FSB as Receiver, appoint a Liquidator, and under

658.82(3)(b) appoint a liquidator to immediately liquidate the assets of the bank or

trust company and wind up its affairs. The receiver for an insolvent bank becomes

in effect the substitute trustee of funds. Tomasello v. Murphy, 100 Fla. 132, 129

So. 328 (Fla. 1930). The Receiver for an insolvent institution has a duty to wind

up the the business by converting assets into cash and making settlement. Allen v.

Lamon, 99 Fla. 1041, 128 So. 254 (Fla. (1930). The Receiver actually takes title to

the property and assets and affairs of the bank, see Tomasello v. Murphy, supra.

When a property is placed under the court's control by the appointment of a

receiver, the court controls the property, see In re Mariner Enterprises ofPanama

City, Inc., 131 B.R. 190 (Bankr. N.D. Fla. 1989) (applying Florida law). Once a

receiver is appointed for a business or person, that entity loses the power to

transfer its property subject to the receivership, see Sunland Mortgage Corp. v.

14

Lewis, 515 So.2d 1337 (Fla. th DCA 1987); and McKinnon-Young Co. v. Stockton,

53 Fla. 734, 44 So. 237 (Fla. 1907). Exactly, and that is exactly why the "open

endorsement" on the lending documents in our case on the BankUnited, FSB did

not transfer ownership to BankUnited, N.A. because the power of the open

endorsement was extinguished in the FDIC receivership, the power died, and could

not post receivership transfer ownership as it died when the receivership began.

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V. Conclusion

A mistake was made on December 21, 2012, when BankUnited, N.A.

was permitted to continue its lawsuit against Mr. Andriot personally, because

appellee has no signed enforceable writing that would permit it to sue Mr. Andriot,

a clear violation of the Statute of Frauds 725.01. The Assignment of Mortgage

was disavowed by the BankUnited, N.A., which stated flatly that it brought this

foreclosure based upon two alleged open endorsements contained in an "Allonge to

Promissory Note" attached to the complaint.

The problem for BankUnited N.A. then becomes the prohibitions in

the Negotiable Instrument statutes Florida Statute Section 673.2031(4) defining

"Transfer of Instrument" which bars any attempted partial transfer, and makes the

open endorsement statute inapplicable to these facts.

Florida Statute Section 671.201(13) defining "Creditor" includes..., a

receiver in equity, and an executor or administrator of an insolvent debtor's or

assignor's estate." By definition, the FDIC is a creditor of the failed BankUnited

FSB, and the purported open endorsements in the Allonge to Promissory Note"

were extinguished in the takeover by the FDIC of the failed assets. Therefore, the

only legal way to transfer the seized failed assets of BankUnited FSB by the FDIC

to BankUnited N.A was by an express written assignment, which the appellee's

lawyer admitted to the trial court at the motions hearing appellee was not relying

16

upon and which was not pled in the complaint.

A closer look at the state statutes and case law clearly shows that the

open endorsement was extinguished by the powers of the receiver in liquidating

the assets of BankUnited, FSB and therefore could not effectuate a transfer to

BankUnited, N.A.

The trial court should be reversed with instructions to permanently

dismiss this lawsuit or to grant the defensive summary judgment in favor of the

Appellants. Thank you.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnishedby Email on May 7, 2013, to:

Clive M. Ryan, Esq.Kahane and Associates, P.A.8201 Peters Road, Suite 3000Plantation, Florida 33324notice@kahaneand associates.com

/s/ ary Barcus, Esq.Gary Barcus, Esq.Electronic Signature

Certificate of Compliance

I HEREBY CERTIFY that this Initial Brief complies with the Times NewRoman 14-point font requirements as detailed in Rule 9.210.

Gary Barcus, Esq.Fla. Bar No.: 480400Attorney for Appellants1689 SW 158 AvenuePembroke Pines, Florida 33027(954) 438-4222 Office(953) 618-9530 Cellb sgab 1.com

/s/ Ga Barcus, Esq. 'Electronic Signature

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