By gedlaw50486353, Jan 27 2016 04:41AM
The Second District Court of Appeal of Florida (“2d DCA”) recently reversed a trial court’s order denying a motion to enforce a final judgment of foreclosure.
The Plaintiff in this case, Bank of America (“the Bank”), was granted a final judgment of foreclosure in the action. The Bank purchased the property at the foreclosure sale and was issued a certificate of title. There was no appeal of the final judgment by the Association. The Bank sought an estoppel letter indicating that the Bank owed $1,421.34 in assessments pursuant to the safe harbor provision of F.S. § 718.116(1)(b). This provision provides that the liability of a first mortgagee who acquires title by foreclosure or by deed in lieu of foreclosure shall be the lesser of a) the unit’s unpaid common expenses which have accrued in the year prior to mortgagee acquiring title; or b) One percent (1%) of the original mortgage debt.
The Association responded by claiming it was entitled to more than $36,000 in unpaid assessments. The Bank moved the Court to enforce the final judgment arguing that its unpaid assessments were limited to those set forth by the safe harbor provision which would be $1,421.34—one percent of the original debt—the lesser of the two amounts. The Bank also argued that in its original pleadings, the Association had affirmatively pleaded that its interest was inferior to the lien of the Bank’s mortgage and it was subject the safe harbor provisions of § 718.116(1)(b). The Bank argued that the Association should be estopped from taking a position contrary to that which it affirmatively took in the initial foreclosure proceedings.
The 2d DCA held that the Association’s affirmative plea that it was subject to the safe harbor provisions acted as a waiver which estopped the Association from taking an inconsistent position regarding its rights to the assessments. The Court reversed the trial court’s order denying the motion to enforce the final judgment of foreclosure in favor of the Bank.
See Bank of Am., N.A. v. Enclave at Richmond Place Condo. Ass'n, 173 So. 3d 1095 (Fla. 2d DCA 2015). (pf)
Click here to read full opinion.
The information you obtain through this article is not, nor is it intended to be, legal advice. This article intended to provide general legal updates. Information is current only as of the date indicated. Changes occur frequently and often the laws and statutes are complex and/or are difficult to follow and therefore we cannot be held responsible for any errors or misstatements or for any misunderstanding on your part. Thus, you are cautioned to use this information at your own risk. You should consult an attorney for advice regarding your individual situation. The proper answers to your legal problems will turn on your particular circumstances and thus you need to have competent legal advice tailored to those circumstances. Consult a lawyer if you have a legal matter which needs attention. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered. This article is not intended to be advertising and David S. Ged, PA does not wish to represent anyone based solely upon the reading/viewing of this article.