ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

ERIK P. KIMBALL, Bankruptcy Judge.

Plaintiff SunTrust Bank filed its Plaintiff's Motion for Summary Judgment [ECF No. 76] and defendants The Wojo Corp d/b/a Prontis Italia Kitchen, along with Douglas A. Wojciechowski and Lori J. Wojciechowski (together, the "Debtors" and collectively with The Wojo Corp., the "Defendants"), filed their Defendant's Response to Plaintiff's Motion for Summary Judgment (DE: 76) and Defendants' Motion for Summary Judgment [ECF Nos. 83 and 84].

The following facts are not in dispute.

Some time ago, a gentleman named Robert Pronti owned real property located at 1440 10th Street, Lake Park, Florida 33403 (the "Real Property"). In 1998, Mr. Pronti agreed to sell the Real Property. For reasons apparently unknown to the parties before the Court, Mr. Pronti executed at the same time two separate deeds conveying the Real Property. One of those deeds purported to convey the Real Property to Douglas A. Wojciechowski, one of the Debtors in this bankruptcy case. The other deed purported to convey the Real Property to a corporate entity controlled by Mr. Wojciechowski, The Wojo Corp. Both deeds were recorded in the relevant real property records. The deed to Mr. Wojciechowski was recorded first.

Zions Bank financed the acquisition of the Real Property. Zions Bank made a loan to The Wojo Corp., which loan was guaranteed by Mr. Wojciechowski. In connection with that loan, The Wojo Corp. executed a mortgage in favor of Zions Bank allegedly encumbering the Real Property. However, because The Wojo Corp. did not actually have record title to the Real Property, that mortgage was not valid. Apparently, Zions Bank did not notice that Mr. Wojciechowski's deed had been recorded first and so Mr. Wojciechowski was the title owner of the Real Property rather than The Wojo Corp.

About a decade later, the Zions Bank loan was refinanced by SunTrust Bank. Like Zions Bank, SunTrust Bank treated The Wojo Corp. as its primary borrower. Mr. and Mrs. Wojciechowski, the Debtors here, guaranteed the loan from SunTrust Bank. The Wojo Corp. executed a mortgage purporting to convey a lien on the Real Property and a separate assignment of rents also relating to the Real Property, which documents were duly recorded. The Wojo Corp. was still not the record owner of the Real Property. And so, like Zions Bank, SunTrust Bank did not obtain a valid mortgage of record on the Real Property. The proceeds of the SunTrust Bank loan were used to satisfy the loan from Zions Bank and Zions Bank recorded a satisfaction of its mortgage.

In August, 2013, The Wojo Corp. defaulted on its loan with SunTrust Bank and SunTrust Bank filed suit in a Florida court against The Wojo Corp. as well as the Debtors, as guarantors. SunTrust Bank sought to foreclose its purported mortgage on the Real Property. In that state court action, The Wojo Corp., through Mr. Wojciechowski, represented that it owned the Real Property. The Florida state court entered a judgment in favor of SunTrust Bank, which was consented to by The Wojo Corp. and the Debtors, and set a foreclosure sale date.1

On June 19, 2014, the day before the foreclosure sale, The Wojo Corp. filed a chapter 11 petition in this Court. In its schedules of assets, signed by Mr. Wojciechowski under oath, The Wojo Corp. represented that it owned the Real Property. Based on this representation, which no party in interest disputed, on December 4, 2014 this Court entered an order authorizing the sale of the Real Property by The Wojo Corp.2 That sale did not close. On February 4, 2015, the chapter 11 case of The Wojo Corp. was dismissed.

After The Wojo Corp.'s bankruptcy case was dismissed, SunTrust Bank moved to reset the foreclosure sale of the Real Property. Only then did SunTrust Bank learn that its mortgagor, The Wojo Corp., was not in fact the title owner of the Real Property, that instead Mr. Wojciechowski was and remains the title owner of the Real Property. SunTrust Bank obtained an order vacating the foreclosure judgment against The Wojo Corp. and filed an amended complaint seeking imposition of an equitable lien on the Real Property and reformation of SunTrust Bank's recorded mortgage to reflect Mr. Wojciechowski as mortgagor. The state court did not get an opportunity to rule on that amended complaint.

Shortly thereafter, on July 31, 2015, the Debtors filed their joint chapter 13 petition with this Court, commencing the present case. The Debtors' schedules of assets indicate that they own the Real Property and that SunTrust Bank has no lien on the Real Property.

Mr. Wojciechowski has consistently testified, including during this bankruptcy case, that he did not realize he was the title owner of the Real Property, that he intended The Wojo Corp. to acquire and own the Real Property, and that he intended SunTrust Bank to have a valid mortgage on the Real Property to secure its loan.

As of the petition date here, SunTrust Bank was owed $339,072.08.

SunTrust Bank is also the holder of a claim based on a November 10, 2009 loan made through the United States Small Business Administration. Again, The Wojo Corp. was the primary obligor and Mr. Wojciechowski guaranteed the loan. However, because both Mr. Wojciechowski and The Wojo Corp. executed the mortgage instrument, the Debtors do not dispute that this claim is secured by a valid mortgage on the Real Property. As of the petition date, Mr. Wojciechowski owed $10,916.29 to SunTrust Bank on this SBA mortgage loan. Because there is no dispute with regard to this smaller loan, the Debtors have agreed to amend their schedules and chapter 13 plan accordingly.

Federal Rule of Civil Procedure 56(a), made applicable to this matter by Federal Rule of Bankruptcy Procedure 7056, provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "An issue of fact is `material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). In considering a motion for summary judgment, the Court must construe all facts and draw all reasonable inferences in the light most favorable to the non-moving party. Id.

The moving party has the burden of establishing that there is an absence of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party meets that burden, the burden shifts to the non-movant, who must present specific facts showing that there exists a genuine dispute of material fact. Walker v. Darby, 911 F.2d 1573, 1576 (11th Cir. 1990) (citation omitted). "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Id. at 1577 (citing Anderson, 477 U.S. at 252).

At the summary judgment stage, the Court will not weigh the evidence or find facts; rather, the Court determines only whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003).

In its amended complaint, SunTrust Bank seeks relief in three counts. In Count I, SunTrust Bank seeks imposition of an equitable lien on the Real Property, to secure the claim resulting from its 2008 loan. In Count II, SunTrust Bank seeks relief under the theory of equitable subrogation, based on the fact that SunTrust Bank's loan refinanced the mortgage loan previously held by Zions Bank. In Count III, SunTrust Bank asks the Court to strike the deed from Mr. Pronti to Mr. Wojciechowski, retroactive to the date it was recorded, which would leave only the deed to The Wojo Corp. and result in SunTrust Bank's mortgage being a valid mortgage on the Real Property.

In the cross-motions for summary judgment now before the Court, the parties address equitable subrogation and whether the deed to Mr. Wojciechowski should be stricken. These are the bases for relief presented in Counts II and III of the amended complaint. Neither motion addresses Count I of the amended complaint, which seeks relief based on a general equitable lien theory. The relief requested by SunTrust Bank in Count I of the amended complaint is not at issue in the present cross-motions.3 At this time, the Court will address only the arguments made in connection with Counts II and III of the amended complaint.

SunTrust Bank's loan was used to satisfy the prior loan held by Zions Bank. In Count II, SunTrust Bank seeks relief based in equitable subrogation.4 SunTrust Bank would thereby step into the shoes of Zions Bank, gaining what SunTrust Bank apparently believes would be a valid mortgage on the Real Property. Yet the theory of equitable subrogation does not support the relief requested by SunTrust Bank. Even if SunTrust Bank was to gain the position formerly held by Zions Bank, that bank's mortgage was also defective. Zions Bank held a mortgage granted by The Wojo Corp., which did not in fact own the Real Property. Even if the Court were to rule that SunTrust Bank should be equitably subrogated to the rights of Zions Bank, SunTrust Bank would still lack a valid mortgage on the Real Property.

SunTrust Bank asks the Court to strike the deed from Mr. Pronti to Mr. Wojciechowski on two theories. First, SunTrust Bank argues that this Court has the power to strike that deed under 11 U.S.C. § 105(a), the so-called all writs provision of the Bankruptcy Code. But section 105 cannot, by itself, form the basis for a substantive claim. Section 105(a) exists only to supplement the other provisions of the Bankruptcy Code. No provision of the Bankruptcy Code empowers the Court to strike a deed under the circumstances of this case.

SunTrust Bank also argues that this Court, as a court of equity, may reform a written instrument consistent with applicable law. In this case, the applicable law is that of the State of Florida. SunTrust Bank argues that under Florida law the Court may reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument. In this case, the instrument in question is the deed from Mr. Pronti to Mr. Wojciechowski.5 If there was a mutual mistake, that mistake was between Mr. Pronti and Mr. Wojciechowski and it occurred in 1998, about a decade before SunTrust Bank became involved. If SunTrust Bank wishes the Court to strike the deed as a result of mutual mistake, Florida law requires that the parties to the transaction be present before the Court, and that would include Mr. Pronti. To avoid this analysis, SunTrust Bank makes the somewhat perplexing argument that it is not asking the Court to reform the deed, but to strike it, and so Mr. Pronti's involvement is not required. Yet the Court cannot think of a type of reformation more extreme than to wipe out the instrument entirely, a request that seems to exemplify the need for having all parties present rather than to obviate that requirement. Under Florida law, given the present status of this adversary proceeding, the Court is without the power to strike the deed from Mr. Pronti to Mr. Wojciechowski.

Because SunTrust Bank is not entitled to relief under either Count II or Count III of the amended complaint, the Court will grant summary judgment in favor of the Defendants on those counts. This matter will proceed to trial on Count I of the amended complaint.6

Accordingly, it is ORDERED AND ADJUDGED that:

1. SunTrust Bank's motion for summary judgment as to Counts II and III of the amended complaint [ECF No. 76] is DENIED.

2. The Debtors' motion for summary judgment as to Counts II and III of the amended complaint [ECF No. 84] is GRANTED.

3. This adversary proceeding will proceed to trial on Count I of the amended complaint.

4. The Debtors shall amend their schedules of assets and their chapter 13 plan to reflect the secured claim of SunTrust Bank on account of the November, 2009 loan.