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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.


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/August/August%2021,%202015/2D14-3643.pdf


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.


By gedlaw50486353, Jan 21 2016 03:47PM

The Fourth District Court of Appeal of Florida (“4th DCA”) recently affirmed a trial court’s order granting a motion to enforce final judgment and to determine the amounts due the Association for unpaid assessments.

In this case, Wells Fargo, N.A. (“the Bank”), as servicing agent for Fannie Mae, brought a mortgage foreclosure complaint against a condominium owner. The complaint stated that the lien on the condominium was superior to all claims against title and interest except for any unpaid condominium assessments pursuant to F.S. § 718.116. Final judgment was entered in favor of the Bank and Fannie Mae subsequently purchased the property in the foreclosure sale. A dispute then arose as to Fannie Mae’s liability for unpaid assessments which accrued before Fannie Mae took title to the property.

The Bank, on behalf of Fannie Mae, filed a motion to enforce the final judgment and to determine the amounts due to the Association. The Motion was granted by the trial court and the amounts due to the Association were determined. The Association brought this appeal arguing that the trial court lacked jurisdiction to hear the new dispute between the Association and Fannie Mae, and that under Florida law, Fannie Mae was required to bring a separate action in order to resolve the issue of unpaid assessments. The Appellate Court disagreed with this argument, stating that this suit was not merely a case involving a third-party purchaser intervening in the lawsuit. The third-party at issue here, Fannie Mae, had a direct relationship with the Plaintiff Bank by virtue of the Bank acting as its servicing agent, and therefore, the Court did have jurisdiction to hear the suit. The Appellate Court affirmed the Trial Court’s order granting final judgment.

See Citation Way Condo. Ass'n v. Wells Fargo Bank, N.A., 172 So. 3d 558, (Fla. 4th DCA, 2015). (pf)

Click here to read full opinion.

http://www.4dca.org/opinions/Aug%202015/8-19-15/4D14-2667.op.pdf

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.

By gedlaw50486353, Aug 24 2015 05:00PM

The Fourth District Court of Appeal of Florida (“4th DCA”) recently reversed a trial court’s entry of final summary judgment of foreclosure where the plaintiff failed to prove it had standing to bring the action.


Chase Bank, N.A. was the original lender under the note and mortgage. Chase Bank is a wholly owned subsidiary of Plaintiff JPMorgan Chase. There was no evidence produced at trial that the note and mortgage were ever transferred from Chase Bank to the Plaintiff. Florida law recognizes a parent corporation and its wholly owned subsidiary as distinct legal entities and “a parent corporation . . . cannot exercise the rights of its subsidiary.” Am. Int’l Group, Inc. v. Cornerstone Bus., Inc., 872 So. 2d 333, 336 (Fla. 2d DCA 2004). A parent corporation, such as JPMorgan, does not have the legal right to enforce the note merely because its subsidiary, Chase Bank, has ownership of the note. For such a right to exist, the Court would need evidence that the Plaintiff acquired a right by virtue of a purchase or servicing agreement.


At trial, the Plaintiff did produce evidence that it acquired servicing rights over the loan prior to the filing of the complaint, however, the document which was submitted, a notice of servicing transfer, was never authenticated and admitted into evidence at trial. A document that is not authenticated or admitted into evidence at trial is not competent evidence to support a judgment. See Wolkoff v. Am. Home Mortg. Serv., Inc., 153 So. 3d 280, 281-82 (Fla. 2d DCA 2014).


The 4th DCA held that due to the lack of evidence the Plaintiff failed to prove its standing and reversed judgment dismissing the mortgage foreclosure.

See Wright v. JPMorgan Chase Bank, N.A. (Fla. 4th DCA, 2015). (pf)


Click here to read full opinion.


http://www.4dca.org/opinions/July%202015/07-01-15/4D14-565.op.pdf


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.


By gedlaw50486353, Jun 5 2015 01:35PM

The First District Court of Appeal of Florida (“1st DCA”) recently reversed a trial court’s ruling which granted a condominium association priority in its lien for assessments over the lien of Plaintiff Bank as a sanction for causing unnecessary delay in the litigation.

In 2007, U.S. Bank filed a foreclosure complaint against a condominium owner which included the condominium association as a co-defendant based on its recorded claim of lien for assessments. The Association brought a counterclaim against the Bank for the condominium assessments. The priority of the liens was a contested issue from the outset of the litigation. After several years of sluggish litigation, in 2011, the Bank brought a motion to dismiss the Association’s counterclaim which was denied. The trial court ordered the Bank to pay $2,500.00 to the Association as a sanction for the Bank’s delay in the case and failure to act. In 2012, the Bank filed a Motion for Summary Judgment alleging that its lien was superior to the lien of the Defendants as it was recorded prior to all other liens. The Association filed a Motion to Dismiss for additional delay tactics by the Bank and for Summary Judgment on their counterclaim for foreclosure of its claim of lien.


The trial court disposed of all the motions and entered an order in April 2012, finding that the Bank’s failure to pursue the litigation was willful, deliberate, and contumacious, which resulted in prejudice to the Association’s interest and caused undue delay in the administration of justice. The Court did not impose any monetary sanctions, did not dismiss the Bank’s action, nor award the Association attorney’s fees. The Court stated that it would exercise its equitable power and authority by giving the Association’s lien priority over any right, title or interest held by the Bank.


In Florida, foreclosure cases are equitable in nature, and when necessary, the Courts have the power to provide litigants with an equitable remedy. Arsali v. Chase Home Fin. LLC, 121 So. 3d 511, 517 (Fla. 2013). This power is limited and hinges on the long-standing principle in common law that “equity will not act when there is full, adequate, and complete remedy at law.” Wildwood Crate & Ice Co. v. Citizens Bank of Inverness, 98 Fla. 186, 192, 123 So. 699, 701 (Fla. 1929).


In their Opinion, the 1st DCA stressed the importance of all litigants to make reasonable efforts to expedite litigation and recognized the Bank’s failure to do so. However, the Court found no indication in the record that the Bank interfered with the trial court’s ability to manage the case under the Florida Rules of Judicial Administration. Evidence of delay aside, the trial court had adequate remedies to address any willful and deliberate delay in the litigation including awarding attorney’s fees and fines. Not only were equitable powers unnecessary in this instance, but the trial court exceeded its authority in declaring the Association’s lien superior to that of the Bank.


The trial court’s sanction in this case goes against well-established property rights both in common law and those enforced by statue. The common law rules states “priority of lien interests is ‘first in time is first in right.’” Holly Lake Ass’n v. Fed. Nat’l Mortg. Ass’n, 660 So. 2d 266, 268 (Fla. 1995). The “First in Time” rule is also dictated by statute under section 28.222(2) (registration by clerk); 695.01 (duty to record); 695.11 (determination of priority in recordings). Florida Statute 718.116(5) also specifically addresses lien priorities between condominium associations for assessments and mortgagees seeking foreclosure. Where a court imposes sanctions contrary to recording and lien priority statutes or a statute establishing time and amount limits for a mortgagee’s liability for assessments, that court has exceeded its discretion and reversal is required. See U.S. Bank Nat’l Ass’n v. Tadmore, 23 So. 3d 822 (Fla. 3d DCA 2009).


The sanction imposed by the trial court in this case was not based on any evidence in the record and not supported by findings of fact. The sanction actually determined a disputed issue of material fact in the litigation which is contrary to the Court’s established remedies for delay in the prosecution of a case. Due to the trial court’s unilateral determination of the lien priorities of the parties without regard to common law or statute, the 1st DCA reversed the portion of the final summary judgment which the lien priorities were based and remanded the case to the trial court.

See U.S. Bank, N.A. v. Farhood, 153 So. 3d 955, (Fla. 1st DCA, 2014). (pf)


Click here to read full opinion.


https://edca.1dca.org/DCADocs/2014/0268/140268_DC08_12162014_115407_i.pdf


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.


By gedlaw50486353, May 29 2015 01:05PM


The First District Court of Appeal of Florida (“1st DCA”) recently held that a trial court abused its discretion in denying a husband’s motion to stop the foreclosure of his wife’s home and to join the lawsuit through intervention.


The wife in this case executed a note and mortgage in favor of Chase Bank as a “single woman”. The mortgage was later acquired by the Federal National Mortgage Association “Fannie Mae”. The wife failed to make a mortgage payment in July 2010 and Fannie Mae brought a foreclosure complaint against her. After attempts at mediation failed, Fannie Mae made a motion for summary judgment which was granted by the trial court in December 2012. The husband (“Appellant”), a nonparty, thereafter filed a Motion for Injunction in order to restrain the other parties in the case from a wrongful sale of the foreclosed home. The motion showed proof of the marriage between husband and wife and stated that the wife falsely bought the home by purchasing it as a single woman. The motion was denied by the trial court.


The husband then filed a Motion to Stop the Foreclosure Sale and for a hearing on the foreclosure sale five days before the scheduled sale of the property. He argued that as the spouse of the homeowner, he had joint ownership of the home and should be allowed to join the proceedings as a party. The motion was denied and the foreclosure sale commenced as scheduled with Fannie Mae purchasing the home and receiving title to the property.


In order for the husband to seek relief from the summary final judgment, he would have to be a party to the lawsuit which he was not. The Appellate Court did allow for a review of the husband’s request to intervene in the proceedings.


Under Florida law, a person who seeks to intervene in a proceeding must claim an interest that is of “such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment.” Litvak v. Scylla Props., LLC, 946 So. 2d 11165, 1172 (Fla. 1st DCA 2006). Further, a person who claims an interest in pending litigation may assert their right to intervene at any time in the litigation. Florida Rules of Civil Procedure 1.230. Though the Courts are reluctant to grant intervention after a final judgment has been entered, they will do so “when the ends of justice require it.” Wags Transp. Sys., Inc. v. City of Miami Beach, 88 So. 2d 751, 752 (Fla. 1956).


In this case, the husband’s motions claimed shared ownership of the home by virtue of his marriage to the homeowner and because he resided at the home with a minor child. This gave the husband a potential homestead interest in the property. Under Article X, section 4 of the Florida Constitution, a homestead property is protected from forced sale and claims against creditors. The Court saw the foreclosure of the husband’s potential interest in the home as qualifying as a direct and immediate interest under the intervention rule thereby entitling him to seek intervention.


The Florida Constitution also prohibits a married homeowner from mortgaging their property without the consent of the spouse. Since the husband alleged that the wife did not gain his consent to alienate his interest in the property, his interest in the property will be directly affected and he should be included as a necessary party to the action. The Court found that the husband demonstrated his legal interest in the proceeding by his marriage to the wife which entitled him to a hearing on his claimed interest. Therefore, the Court reversed the ruling of the trial court allowing husband to intervene in the suit.

See Ezem v. Fed. Nat’l Mortg., 153 So. 3d 341, (Fla. 1st DCA, 2014). (pf)


Click here to read full opinion.


https://edca.1dca.org/DCADocs/2013/1253/131253_1287_12172014_082221_i.pdf



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.


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