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JIAXIAN ZHAO, Appellant, v. PREMIER AMERICAN BANK and General Lending Corporation, Appellees.

District Court of Appeal of Florida, Third District2019-03-27No. No. 3D17-1783
272 So. 3d 466

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Opinion

majority opinion

PER CURIAM.

Jiaxian Zhao appeals the trial courts entry of three separate orders on two separate motions for summary judgment rendered in favor of General Lending Corporation (GLC). Specifically, Zhao challenges: (i) the trial courts final order granting final summary judgment of foreclosure on GLCs counterclaim for foreclosure of two judgment liens encumbering the subject property; (ii) the trial courts final order granting final summary judgment on Zhaos complaint based on its determination that Zhao lacks standing to foreclose an equitable lien; and (iii) the trial courts non-final order summarily denying Zhaos motion for partial summary judgment regarding his affirmative defense to both GLC and Premier American Bank n/k/a Florida Community Banks counterclaims that both judgment liens attached only to the same one-half interest in the property.

Based on the record before us, we reverse as to the two final orders granting summary judgment in favor of GLC and remand for further proceedings because we find there are genuine issues of material fact. See Patel v. Aurora Loan Servs., LLC, 162 So.3d 23, 24 (Fla. 4th DCA 2014) (reversing final summary judgment of foreclosure based on the existence of a genuine issue of material fact).

Specifically, with regard to the trial courts conclusion that Zhao no longer owns the subject property, and, therefore, lacked standing to either assert his equitable subrogation claim against GLC, or defend against GLCs counterclaim seeking to foreclose on the subject judgments, the record reveals the existence of a genuine issue of material fact, thus precluding both summary judgment orders. Indeed, while the record indicates Zhao and purported buyer Ying Cui executed a purchase and sale contract for the property (and the purchase price was paid to Zhao), the record also reveals several other facts evidencing that Zhao still owned the property, and therefore, had the requisite standing: (i) it appears that no deed was executed or delivered to Ying Cui; (ii) Zhao continued to pay the property taxes on the property; and (iii) Zhao had agreed to refund the purchase price to Ying Cui in the event Zhao could not deliver clear title to the property.

Because the trial court summarily determined that Zhao lacked standing in the case below, the record reflects that the trial court did not reach (and we express no opinion regarding) the merits of either Zhaos equitable subrogation claim against GLC or the affirmative defenses Zhao asserted in response to GLCs foreclosure claims.

Reversed and remanded.

The trial courts order denying Zhaos motion for partial summary judgment is a non-final order, and thus, is not appealable. See Taggart v. Morgan, 943 So.2d 250, 250 (Fla. 3d DCA 2006). The trial courts order expressly recognizes the non-final nature of this order.