Tikhomirov v. Bank of New York Mellon
223 So. 3d 1112
| Fla. Dist. Ct. App. | 2017Background
- The HOA obtained a final judgment of foreclosure for unpaid assessments on June 18, 2014.
- Bank of New York Mellon (BNYM) filed a separate mortgage foreclosure action and recorded a lis pendens on July 22, 2015, alleging a superior mortgage lien.
- Appellant purchased the property after the lis pendens was recorded; a Certificate of Sale (Oct. 27, 2015) and Certificate of Title (Nov. 9, 2015) were later issued to him.
- BNYM obtained an Unopposed Final Judgment of Foreclosure on February 24, 2016, finding its lien superior and scheduling a sale; the judgment was recorded.
- On April 4, 2016 (after BNYM’s final judgment), Appellant moved to intervene, to vacate the judgment (Rule 1.540(b)(3) fraud), and to stay the sale; the trial court denied intervention and the motion to vacate; Appellant did not redeem and property was sold July 7, 2016.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether purchaser who bought after recorded lis pendens may intervene in pending foreclosure | Appellant: equitable intervention should be allowed to protect his title and interests | BNYM: lis pendens gave Appellant constructive notice; intervention is permissive and discretionary; purchaser bought at own risk | Court: Denied intervention — purchaser who bought after lis pendens is not entitled to intervene; trial court did not abuse discretion |
| Whether judgment should be vacated under Fla. R. Civ. P. 1.540(b)(3) for alleged fraud | Appellant: BNYM misrepresented standing/assignments and denied due process; alleged fraud warrants vacatur | BNYM: allegations lack particularity and no competent sworn proof; incorrect assignments do not necessarily show fraud | Court: Denied vacatur — Appellant failed to plead fraud with required particularity or show why alleged fraud would change outcome |
| Whether Appellant had other remedies (redemption) to protect interest | Appellant: sought intervention instead of redemption | BNYM: statutory right of redemption exists and can protect subordinate interest up to certificate of sale | Court: Noted statutory redemption available; Appellant did not redeem and sale proceeded |
Key Cases Cited
- Andresix Corp. v. People’s Downtown Nat’l Bank, 419 So. 2d 1107 (Fla. 3d DCA 1982) (purchaser after lis pendens not entitled to intervene in foreclosure)
- De Sousa v. JP Morgan Chase, N.A., 170 So. 3d 928 (Fla. 4th DCA 2015) (denying intervention where purchaser bought after lis pendens; redemption is available remedy)
- Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087 (Fla. 2d DCA 2015) (recording statute gives constructive notice via grantor/grantee index)
- Bymel v. Bank of America, N.A., 159 So. 3d 345 (Fla. 3d DCA 2015) (purchaser who buys property subject to pending foreclosure with lis pendens takes risk and generally cannot intervene)
- Federal Home Loan Mortg. Corp. v. De Souza, 85 So. 3d 1125 (Fla. 3d DCA 2012) (Rule 1.540(b)(3) requires fraud to be pled with particularity and show entitling effect)
- WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA 2004) (assignments are not always required to transfer mortgage; post-complaint assignment does not necessarily defeat standing)