MIAMI -- A lack of a written release caused Florida's Third District Court of Appeal to side with a company on Dec. 12 in a $38 million foreclosure case against a Florida man, affirming a lower court’s ruling for summary judgement in favor of the company.
Judges Thomas Logue, Robert J. Luck and Norma S. Lindsey concurred on the case.
Michael Rosen’s main argument was he was released from the guaranty before the foreclosure action was even put in place. But Harborside Suites LLC, which was granted the summary judgment against Rosen, pointed out that the bank never officially released him from the loan that was taken out in 2005. The terms of the contract in question, make it clear that a written release is required to be given a full release, the appeals court determined, despite Rosen arguing that his delivery of pre-sales contracts granted him release.
“The evidence was undisputed that the bank did not release Rosen in writing from his personal guaranty,” the appeals court said. Since a written release was a clear requirement, the court affirmed the lower court’s judgement for Harborside.
The issue between Rosen and Harborside dates back to 2005 when an entity, in which Rosen was a principal, entered into a revolving mortgage note and construction loan with Ohio Savings Bank/Amtrust. The principal amount was $41 million for the construction of a condominium in Hillsborough County. Rosen guaranteed the loan in an unconditional and continuing guaranty indemnity contract. Things went left after only four contracts closed after the construction of the project was complete. In May 2008, the bank itself went into default on the loan because of nonpayment. Before it was acquired by the FDIC, the bank took action to foreclose on the mortgage.
ITI Venture, which owned the mortgage, received consent on a final judgement of foreclosure for more than $38 million plus interest. ITI then assigned the foreclosure to Harborside, which filed a post-foreclosure lawsuit against Rosen in hopes of getting the full amount.
A lower court granted Harborside summary judgment for $24,017,999.79. Rosen appealed after being denied his motion for rehearing.