238 So. 3d 405
Fla. Dist. Ct. App.2018Background
- HSBC recorded a notice of lis pendens in Aug 2012 and sued to foreclose a $770,000 mortgage on a condominium unit.
- In Dec 2013 the condominium association recorded a lien for unpaid assessments and in Jan 2014 sued in county court to foreclose that lien; a default judgment followed and Horizon Specialty Consulting LLC purchased the unit at the sale for $12,100.
- Horizon moved to intervene in the pending mortgage foreclosure; Bank of America moved to set aside the county-court judgment and sale. The circuit court later consolidated the cases.
- The circuit court denied Bank of America’s motion to set aside the lien foreclosure sale, granted Horizon’s motion to dismiss the mortgage foreclosure case, and dissolved the lis pendens, concluding the mortgage complaint named the wrong owner.
- Bank of America and HSBC each appealed: this opinion affirms the denial of Bank of America’s motion re: the lien sale, but reverses the portions granting Horizon intervention and dismissing the mortgage foreclosure and dissolving the lis pendens; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of lis pendens on subsequently filed association lien foreclosure | HSBC/Bank: lis pendens did not bar association action because association’s lien relates back to original declaration under §718.116(5)(a) | Association/Horizon: lien effective as to first mortgagee only after recording its claim; lis pendens barred subsequent unrecorded interests | Court: Affirmed that association’s lien foreclosure was not barred as to first mortgagee under statutory scheme; denied Bank of America’s motion to set aside sale (affirmed) |
| Whether Horizon (purchaser pendente lite) could intervene in mortgage foreclosure | Horizon: as purchaser at lien sale, entitled to intervene and seek dissolution of lis pendens | HSBC: purchaser pendente lite cannot intervene where a lis pendens was recorded | Court: Reversed grant of intervention; purchaser pendente lite not entitled to intervene; intervention improper (reversed) |
| Validity of mortgage foreclosure complaint (naming of owner) and consequence for lis pendens | Horizon: complaint failed to state claim because it named Gilchrist, not Bank of America, so lis pendens was fatally defective | HSBC: lis pendens was adequate and mortgage foreclosure should proceed | Court: Rejected Horizon’s challenge to lis pendens; trial court erred in dismissing mortgage foreclosure and dissolving lis pendens (reversed) |
| Whether trial court properly dissolved lis pendens and dismissed foreclosure after intervention | Horizon: dissolution and dismissal appropriate given intervenor’s purchase and alleged complaint defect | HSBC: dissolution and dismissal improper because intervention was unauthorized and lis pendens valid | Court: Trial court erred in dissolving lis pendens and dismissing mortgage foreclosure; those portions reversed and remanded |
Key Cases Cited
- Jallali v. Knightsbridge Village Homeowners Ass'n, 211 So.3d 216 (Fla. 4th DCA 2017) (association lien relation-back principle under condo statute explained)
- Tikhomirov v. Bank of New York Mellon, 223 So.3d 1112 (Fla. 3d DCA 2017) (purchaser pendente lite cannot intervene where lis pendens recorded)
- Andresix Corp. v. People's Downtown Nat'l Bank, 419 So.2d 1107 (Fla. 3d DCA 1982) (early articulation that purchaser pendente lite not entitled to intervene)
- Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087 (Fla. 2d DCA 2015) (supporting rule barring purchaser pendente lite intervention)
- De Sousa v. JP Morgan Chase, N.A., 170 So.3d 928 (Fla. 4th DCA 2015) (same)
- U.S. Bank Nat'l Ass'n v. Quadomain Condo. Ass'n, 103 So.3d 977 (Fla. 4th DCA 2012) (discussing interplay of lis pendens and condominium association lien enforcement)