CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 2017 WL 4158855
...erly denied Nationstar’s
amended rule 1.540(b)(4) motion to vacate the judgment as void. Accordingly, we
affirm the order under review.
Although we have concluded that the final judgment of foreclosure is not
void, we nonetheless address section 702.036, Florida Statutes (2016), titled
“Finality of mortgage foreclosure judgment,” which protects a purchaser of
foreclosed property under certain circumstances and in a limited manner, when a
party challenges the validity of a final judgment of foreclosure of a mortgage.
Specifically, section 702.036(1)(a) provides:
(1)(a) In any action or proceeding in which a party seeks to set
aside, invalidate, or challenge the validity of a final judgment of
foreclosure of a mortgage ....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
...vacating the certificates of sale and title. Although it is true that a trial court “may
not grant relief that adversely affects the quality of the title to the property” where
a bona fide purchaser has acquired the property in a foreclosure sale (see section
702.036, Fla....
...2d 1268, 1269 (Fla. 3d DCA
1998). See also Castro v. Charter Club, Inc.,
114 So. 3d 1055 (Fla. 3d DCA 2013);
Rodriguez-Faro v. M. Escarda Contractor, Inc.,
69 So. 3d 1097 (Fla. 3d DCA
2011). Therefore, and as the trial court correctly concluded, section
702.036 is
inapplicable and CWELT’s reliance upon it unwarranted.
Further, the trial court properly exercised its discretion in vacating the
certificate of sale and the certificate of title, as a necessary and logical extension of
its prior order vacating the final judgment....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 229, 2016 WL 72531
...Michael was not of
record as of the date of the foreclosure sale, and was, in essence a “secret
settlement,” the appellant argues the protections afforded to her as a bona
4
fide purchaser for value under sections
702.0361 and
695.01,2 Florida
Statutes (2013), were violated.
“The right of redemption is the mortgagor’s valued and protected
equitable right to reclaim [his or] her estate in foreclosed property.”
Sudhoff v....
...foreclosure sale.3 In
Kane, we rejected an argument that Kane’s failure to give notice of the
conveyance of the property and the execution of a satisfaction of the
mortgage was grounds to uphold the clerk’s sale because “[a] purchaser of
1 Section
702.036, Florida Statutes (2013), limits an action or proceeding seeking
to set aside, invalidate, or challenge and requires a court to treat such a
proceeding as a claim for monetary damages if certain conditions apply.
2Section
695.01, Flo...
CopyPublished | Florida 2nd District Court of Appeal
...But in 2016 the county
court determined that the foreclosure judgment was void,
apparently for lack of due process in the proceedings.
In his third amended counterclaim against Carrollwood
Village, Soto sought, among other things, a declaration of rights
regarding the construction of section 702.036(1)(a), Florida Statutes
(2017), which governs the finality of mortgage foreclosure
judgments and a declaration regarding the as-applied
constitutionality of the statute on due process grounds....
CopyPublished | Florida 3rd District Court of Appeal
...JJ.
ON MOTION FOR STAY
GORDO, J.
Appellant, Lazara A. Rodriguez, has filed an emergency motion to stay
eviction pending appeal of the trial court’s order denying her motion for
rehearing of its order finding section 702.036, Florida Statutes (2013)
constitutional and granting third-party purchaser’s emergency motion to lift
the stay of eviction....
...Rodriguez has repeatedly sought
to stop the writ of possession and has remained unlawfully at the property.1
On June 5, 2021, the trial court ultimately granted a stay of the writ pending
an evidentiary hearing. On August 1, 2021, Ms. Veytia filed an emergency
motion to dismiss the fraud action under section 702.036, the finality of
judgment statute, and to lift the stay of the writ of possession. Following a
hearing on August 3, 2021, the trial court found section 702.036
constitutional, sustained Ms....
...Veytia’s objection to the evidentiary hearing,
granted the motion to lift the stay and ordered the Sheriff to enforce the writ
of possession after August 31, 2021. On August 20, 2021, Ms. Rodriguez
filed an “Emergency Motion for Rehearing of Order Finding Fla. Stat.
§ 702.036 Constitutional and Granting Vanessa Veytia’s Emergency Motion
1
Ms....
...actions and continues to have her interests zealously represented.
5
However, Ms. Rodriguez would not be entitled to the remedy she seeks—
i.e., staying in her home—even if her arguments are meritorious. “[Section
702.036] provides that where title has passed to an innocent third-party
buyer, a claim for wrongful foreclosure is converted into an action for money
damages against the wrongfully foreclosing lender.” Vista Fin....
CopyPublished | District Court of Appeal of Florida
reasonable time; and, alternatively, that section
702.036, Florida Statutes (2019), precluded the relief
CopyPublished | Florida 3rd District Court of Appeal
...at 267.
The facts of this case are on all fours with Arsali, Gavidia, and Josecite.
Accordingly, remand is warranted for reconsideration of the equitable
grounds alleged. 1
Reversed and remanded.
1
We reject the successful bidders’ contention that section 702.036, Florida
Statutes (2019), bars relief, as this issue was neither raised nor litigated
below....
CopyPublished | Florida 3rd District Court of Appeal
...exercising that discretion requires holding an evidentiary hearing.”). Such a
failure to receive notice as to the unliquidated damages “does not void the
entire judgment, only that portion awarding unliquidated damages.” Cellular
Warehouse, Inc.,
957 So. 2d at 666. See also §
702.036(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...side a 2014
foreclosure judgment and to revert title to Vista. The only issue relevant to
this appeal is whether the Tselesins, the third-party purchasers of the
foreclosed property, are protected by the Finality of Mortgage Foreclosure
statute, section 702.036, Florida Statutes (2019)....
...BONYM because they willingly received an imperfect interest in the
foreclosed property, as evidenced by the fact that the Tselesins had to
reforeclose the mortgage to extinguish Polishko’s interest. The Tselesins
moved to dismiss, invoking the protection of section 702.036. Upon
consideration of the motion to dismiss, the trial court ruled that the Tselesins
met each element of section 702.036, affording them protection under the
statute....
...The trial court acknowledged that the only disputed element was
whether the Tselesins qualify as “person[s] not affiliated with the foreclosing
3
lender.” Finding that the Tselesins were not affiliated with BONYM, the trial
court reasoned:
First, because 702.036 refers to the purchase by a person not
affiliated with the foreclosing lender at the time of purchase,
Tselesin's pursuit of an equitable action of reforeclosure some
two (2) years after his purchase at a foreclosure sale ca...
...the lender two (2)
years prior. Moreover, the Court notes that if the mere act of
purchasing a property from an imperfect foreclosure action was
a basis to create an "affiliation", [sic] then no party could be
protected under 702.036 which was calculated to protect third
party purchasers from potential defects in the foreclosure from
which their title is deraigned.
On this basis, the trial court found that the Tselesins were entitled to the
protection of the...
...Because
further judicial labor is pending as to BONYM, we dismiss the appeal as to
BONYM as a non-final, non-appealable order.
We agree with the trial court that the Tselesins are not affiliated with
the foreclosing lender and are therefore entitled to the protection of section
702.036....
...affiliated with the foreclosing lender or the foreclosed owner, at a
time in which no lis pendens regarding the suit to set aside,
invalidate, or challenge the foreclosure appears in the official
records of the county where the property was located.
§ 702.036(1)(a)(4), Fla. Stat. (2019) (emphasis added). Upon reviewing
Vista’s interpretation of section 702.036(1)(a)(4), the trial court held:
Moreover, the Court notes that if the mere act of purchasing a
property from an imperfect foreclosure action was a basis to
create an “affiliation”, [sic] then no party could be protected under
702.036 which was calculated to protect third party purchasers
from potential defects in the foreclosure from which their title is
deraigned.
(Emphasis added)....
...The statute was created to protect third-party purchasers when
title is threatened due to an imperfect or irregular foreclosure. Therefore,
“subroga[tion] to all right of mortgage” cannot equate to “a person [ ] affiliated
with the foreclosing lender.” Id.; § 702.036(1)(a), Fla....
...(2019).
Lastly, Vista argues for additional requirements and protections to be
added to the statute. But as the Fourth District recently stated in Wells Fargo
Bank, N.A. v. Tan, 46 Fla. L. Weekly D1048, D1050 (Fla. 4th DCA May 5,
2021), in applying section 702.036: “[Appellant’s] argument[s] [are]
reasonable....
CopyPublished | Florida 3rd District Court of Appeal
...at 267.
The facts of this case are on all fours with Arsali, Gavidia, and Josecite.
Accordingly, remand is warranted for reconsideration of the equitable
grounds alleged. 1
Reversed and remanded.
1
We reject the successful bidders’ contention that section 702.036, Florida
Statutes (2019), bars relief. This argument was not raised below, and the
plain language of the statute extends only to challenges to “the validity of a
final judgment” not to motions for relief from a judicial foreclosure sale. §
702.036(1)(a), Fla....
