William J. Bymel, Appellant, vs. Bank of America, N.A., Appellee.
No. 3D13-3099
Third District Court of Appeal State of Florida
Opinion filed March 11, 2015.
Lower Tribunal No. 12-7660
Not final until disposition of timely filed motion for rehearing.
An Appeal from an order of the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge.
Krinzman, Huss, Lubetsky, and Cary A. Lubetsky and Aniella Gonzalez, for appellant.
Albertelli Law (Tampa),1 for appellee.
Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
ROTHENBERG, J.
William J. Bymel (Bymel) appeals from an order denying his motion to intervene in the foreclosure action filed by Bank of America, N.A. against Paul Everett and Carmell S. Johnson-Everett (collectively, the Everetts).2 We find that
After Bank of America filed its foreclosure action against the Everetts and recorded its lis pendens in 2012, Bank of America approved a short sale of the Everetts’ property to Bymel in May 2013. Prior to the closing of the short sale, Bank of America approved the settlement statement that was prepared by the settlement agent. Then, in June 2013, the short sale transaction closed; the Everetts executed a warranty deed naming Bymel as the purchaser of the real property, which deed was later recоrded; and the settlement agent initiated a wire transfer to Bank of America of the short sale proceeds. The wire transfer was not accepted by Bank of America,3 and thereafter, the settlement agent attempted to resolve the matter with Bank of America. In October 2013, Bank of America sent a seсond letter to the Everetts stating that it was approving the short sale to Bymel. As requested by Bank of America, the Everetts executed this letter although the short salе had previously closed and the Everetts had already transferred the property to Bymel in June 2013. On December 5, 2013, Bank of America contacted the settlеment agent acknowledging that it had received certain documents but indicated that there had not been a final approval. Bank of America informеd the settlement agent that one of its settlement associates would be in contact within five days.4
Based on these proceedings, Bymel moved on Decеmber 6, 2013, to continue the non-jury foreclosure trial scheduled for December 10, 2013, and also moved to intervene in the foreclosure action pursuant to
Bymel contеnds that the trial court abused its discretion by denying his motion to intervene. See Racing Props., L.P. v. Baldwin, 885 So. 2d 881, 883 (Fla. 2004) (holding that a trial court‘s ruling on a motion to intervene is reviewed for an abuse of discrеtion). Under the facts of this case, we agree.
We recognize that in Andresix Corp. v. Peoples Downtown National Bank, 419 So. 2d 1107 (Fla. 3d DCA 1982), this Court affirmed the deniаl of Andresix‘s motion to intervene in a pending foreclosure action, holding that Andresix, as a purchaser of property which was then the subject of a mortgage foreclosure action and accompanying lis pendens by Peoples Downtown National Bank, was not entitled to intervene in such action. Id. at 1107; see SADCO, Inc. v. Countrywide Funding, Inc., 680 So. 2d 1072, 1072 (Fla. 3d DCA 1996) (affirming dеnial of motion to intervene in a residential foreclosure action citing to Andresix for the proposition that a purchaser of property that was subject of lis pendens arising from bank‘s foreclosure action was not entitled to intervene in that action); see also Timucuan Props., Inc. v. Bank of New York Mellon, 135 So. 3d 524, 524 (Fla. 5th DCA 2014) (per curiam affirmance citing to SADCO and Andresix). The rule in Andresix is based on the concern that to аllow purchasers pendente lite to intervene would unnecessarily protract litigation. Harrod v. Union Fin. Co., 420 So. 2d 108, 108 (Fla. 3d DCA 1982). Thus, when property is purchased during a pending foreclosure аction in which a lis pendens has been filed, the purchaser generally is not entitled to intervene in the pending foreclosure action. Indeed, if such a buyer purchases the property, he does so at his own risk because he is on notice that the property is subject to the foreclosure action. Seе Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012) ([T]he purpose of a notice of lis pendens is to notify third parties of pending litigation and protect its proponents from intervening liens that could impаir or extinguish claimed property rights.). Allowing such a purchaser to intervene would unnecessarily prolong the foreclosure action.
The instant case, hоwever, is factually and materially distinguishable from Andresix, Harrod, SADCO, and this general rule. Unlike the purchasers in Andresix, Harrod, SADCO, and most situations where the buyer purchases property during a pending foreclosure action, Bymel was not а stranger to Bank of America. Rather, Bank of America was actively involved in Bymel‘s purchase of the real property because it had apprоved both the short sale of the real property to Bymel and the settlement statement prepared by the settlement agent prior to the short sale closing. Therefore, this is not a situation where Bymel believed that he was purchasing the property subject to the pending foreclosure action and the lis pendens. Instead, Bymel reasonably believed that following the short sale, Bank of America would dismiss its foreclosure action against the Everetts, discharge its notiсe of lis pendens, and record a satisfaction of its mortgage, thereby clearing title to the real property.
Based on the facts of this case, wе conclude that the trial court abused its discretion by denying Bymel‘s motion to intervene. Accordingly, we reverse the denial of Bymel‘s motion to intervene and remand with instructions to enter an order allowing Bymel to intervene in the foreclosure action.
Reversed and remanded.