Bymel v. Bank of America, N.A.
159 So. 3d 345
| Fla. Dist. Ct. App. | 2015Background
- Bank of America filed a foreclosure and recorded a lis pendens against the Everett property in 2012.
- In May 2013 Bank of America approved a short-sale to William J. Bymel and approved the settlement statement prepared by the settlement agent.
- The short sale closed in June 2013: the Everetts executed and recorded a warranty deed transferring the property to Bymel, and the settlement agent wired short-sale proceeds (which Bank of America later did not accept); funds remain in the settlement agent’s trust account.
- Bank of America sent subsequent communications in October and December 2013 indicating approval issues and that final approval had not occurred.
- On December 6, 2013 Bymel moved to intervene in the foreclosure (Rule 1.230) and to continue the scheduled non-jury trial; the trial court denied both motions.
- Bymel appealed the denial of intervention; the appellate court reviewed for abuse of discretion and reversed, remanding with instructions to allow intervention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a purchaser who acquired property by short sale during a pending foreclosure may intervene in the foreclosure proceeding | Bymel: he is current owner via a short sale approved by Bank of America and reasonably expected the bank would dismiss the foreclosure and clear title, so he has a protectable interest and should be allowed to intervene | Bank of America: purchasers after a lis pendens take subject to the foreclosure; precedent bars pendente lite purchasers from intervening because they take the risk and intervention would prolong litigation | Court: reversed—trial court abused discretion; Bymel may intervene because Bank of America actively approved the short sale and settlement statement, distinguishing the general rule against intervening purchasers |
| Whether the general rule from Andresix (and similar cases) barring purchasers from intervening applies here | Bymel: the general rule is inapplicable because Bank of America was involved and approved the short sale, creating a reasonable expectation of dismissal and cleared title | Bank of America: relies on Andresix/SADCO/Harrod to argue that purchasers subject to lis pendens cannot intervene | Court: Andresix and its progeny were materially distinguishable; active bank approval of the short sale justified intervention |
| Whether the court needed to resolve whether short-sale conditions were met before allowing intervention | Bymel: implied that approval and closing should suffice to protect his interest | Bank of America: disputed final approval and cited unmet conditions as reason not to accept funds | Court: did not resolve whether conditions were met; remanded to allow intervention and proceed accordingly |
Key Cases Cited
- Racing Props., L.P. v. Baldwin, 885 So. 2d 881 (Fla. 2004) (standard of review for motions to intervene is abuse of discretion)
- Andresix Corp. v. Peoples Downtown Nat’l Bank, 419 So. 2d 1107 (Fla. 3d DCA 1982) (purchaser pendente lite generally not entitled to intervene in foreclosure)
- SADCO, Inc. v. Countrywide Funding, Inc., 680 So. 2d 1072 (Fla. 3d DCA 1996) (affirming denial of intervention to purchaser in foreclosure context)
- Harrod v. Union Fin. Co., 420 So. 2d 108 (Fla. 3d DCA 1982) (concern that allowing purchasers to intervene would protract litigation)
- Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So. 3d 25 (Fla. 5th DCA 2012) (purpose of lis pendens is to notify third parties and protect against intervening liens)
- Timucuan Props., Inc. v. Bank of New York Mellon, 135 So. 3d 524 (Fla. 5th DCA 2014) (per curiam citation referencing purchaser-intervention precedent)