CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 1799, 2010 WL 567251
...Coral Lakes Community Association, Inc. (the "HOA"), appeals a final summary judgment of foreclosure awarded to Busey Bank, N.A. (the "Bank"). The final judgment determined that the Bank had no liability to the HOA for past due HOA assessments that the HOA claimed pursuant to section 720.3085(2), Florida Statutes (2008)....
...On June 3, 2008, the Bank instituted a foreclosure action against the homeowners, adding the HOA as a party defendant because of the accrued unpaid assessments. [2] On June 24, 2008, the HOA *582 answered and claimed as its first affirmative defense that pursuant to section 720.3085, Florida Statutes (2007), [3] the Bank's mortgage was subordinate to all of the mortgaged premises' unpaid common expenses which accrued or came due during the time period preceding the Bank's acquisition of title at foreclosure sale or by deed in lieu of foreclosure....
...disputed, and the only matters of law to be argued were the general law of notes, mortgages, and negotiable instruments and the Bank's entitlement to attorney's fees and costs. The Bank also claimed that, as a matter of law, the statutory changes to section 720.3085 [5] should not be applied retroactively to its note and mortgage that predated the statutory change....
...t the Bank would take title at a future foreclosure sale, it would be constrained to follow the dictates of the amended 2008 version of the statute at that time. Cf. LR5A-JV, LP v. Little House, LLC,
998 So.2d 1173, 1175 (Fla. 5th DCA 2008) (holding section
720.3085(2), Florida Statutes (2007), inapplicable because the appellant/mortgagee was not yet at the time of the suit the subsequent parcel owner; however, in dictum, the court stated that "[f]urthermore, there is nothing in the plain language of section
720.3085 that can reasonably be construed to give the Association's lien priority over [the lender's] mortgage")....
...them since the filing of the Notice of Lis Pendens shall be foreclosed of all estate or claim in the property except that any purchaser other than Plaintiff [the Bank] shall be liable for unpaid assessments due [the HOA] pursuant to the provision of Section 720.3085, Florida Statutes....
...laration was recorded or that it otherwise had lien superiority over intervening mortgages. See LR5A-JV,
998 So.2d at 1175 n. 2. However, the HOA took the opposite tack to entice lenders to finance purchases in its community. The statutory change in section
720.3085 cannot disturb that prior, established contractual relationship....
...airment is tolerable." Pomponio v. Claridge of Pompano Condo., Inc.,
378 So.2d 774, 780 (Fla. 1979) (citing Yamaha Parts Distribs., Inc. v. Ehrman,
316 So.2d 557 (Fla.1975)). To avoid this longstanding principle, the HOA argues that even if applying section
720.3085 to this case would impair the Bank's contractual rights, such impairment is constitutionally reasonable or minimal....
...nk had every right to rely upon when deciding to finance the homeowners' home in the Coral Lakes *586 community. The trial court did not err in finding the Bank's first mortgage lien superior to the HOA's claim for unpaid assessments notwithstanding section 720.3085....
...for unpaid assessments. [2] Riverside Bank of the Gulf Coast is apparently the holder of another, inferior lien but has not appeared in this appeal. [3] At the time of the filing of the foreclosure suit and the HOA's answer and affirmative defenses, section 720.3085, Florida Statutes (2007), provided in part: (1) A parcel owner, regardless of how his or her title to property has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments that come due while he or she is the parcel owner....
...sale and its certificate of title was recorded on December 24, 2008. [5] See footnote 2, above. [6] We make no comment on the HOA's argument that the Florida Legislature effectively rewrote section 9.1.6 of its Declaration when it enacted or amended section 720.3085 because that was not the basis of the trial court's summary judgment.
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 19783, 2014 WL 6834331
...the safe harbor provision of section
718.116(l)(b), Florida Statutes (2018). REVERSED AND REMANDED. COHEN and LAMBERT, JJ., concur. . The legislature has enacted similar safe harbor provisions relative to homeowners associations and timeshares. See §
720.3085, Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2013 WL 5288863, 2013 Fla. App. LEXIS 14968
...The two banks failed to answer, and the clerk entered defaults against them. But Nassau filed an answer and raised as its third affirmative defense that Cricket was liable for “all unpaid assessments that came due up to the time of transfer of title” under section
720.3085(2)(b), Florida Statutes (2011). 1 Cricket filed a motion to strike this affirmative defense in which it argued that section
720.3085(2)(b) was inapplicable and that, under section
197.573(2), tax deed purchasers acquire property free and clear of liens for assessments....
...In response to Nassau’s third affirmative defense, Cricket reasserted its argument that it acquired the property free and clear of any liens for unpaid assessments by virtue of section
197.573(2). The issue before the trial court on Nassau’s third affirmative defense was whether section
720.3085(2)(b) or section
197.573(2) controlled. The court ultimately concluded that section
720.3085(2)(b) supersedes the provision in section
197.573(2)....
...noting that Nassau’s pleadings did “not put before the Court the issue of whether any association assessments were actually owed to [Nassau] at the time of the tax deed sale.” On appeal, Cricket argues that the trial court erred in ruling that section
720.3085(2)(b) supersedes the provision in section
197.573(2) and therefore controls the issue of whether any lien for assessments survives the issuance of the tax deed....
...purchased pursuant to a tax deed, in futuro”). However, section
720.312 omits any mention of hens and therefore does not safeguard liens for unpaid assessments from being extinguished under section
197.573(2) by the issuance of a tax deed. See id. Section
720.3085(1), which was enacted in 2007, 3 provides that associations have a lien on property to secure payment of assessments if provided for in the governing documents. Section
720.3085(2) addresses the liability of a parcel owner for assessments as follows: ■ (a)- A parcel owner, regardless of how his or her title to property has been acquired, including by purchase at a foreclosure sale or by deed in lieu of for...
...due up to the time of transfer of title. This liability is without prejudice to any right the present parcel owner may have to recover any amounts paid by the present owner from the previous owner. (Emphasis added.) Consistent with section
720.312, section
720.3085(2)(a) imposes liability for future assessments on a new parcel owner. And section
720.3085(2)(b) imposes liability for unpaid assessments that were due at the time title was transferred....
...The resolution of that question turns in large part on the related question of whether acquisition of property by a tax deed is a “transfer of title.” The trial court answered the primary question in the affirmative and implicitly answered the related question in the affirmative. The court construed section
720.3085(2)(b) as providing that liens for unpaid assessments survive the' issuance of a tax deed. The court concluded that section
197.573(2) was superseded by section
720.3085(2)(b) because section
720.3085(2)(b) was enacted later in time....
...le’ ” so as to “ ‘give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” Id. (quoting Heart of Adoptions, Inc. v. J.A.,
963 So.2d 189, 199 (Fla.2007)). The plain language of section
720.3085(2)(b) provides that new parcel owners are jointly and severally liable with prior owners “for all unpaid assessments that came due up to the time of transfer of title.” The intent of this statute is obviously to impose liability for previously accrued assessments on a new parcel owner who acquires property by transfer of title. As with section
720.312, section
720.3085(2)(b) omits any mention of the survival of liens and therefore does not safeguard liens for unpaid assessments from being extinguished under section
197.573(2) by the issuance of a tax deed. See Sugarmill,
766 So.2d at 489 . The plain language of section
720.3085(2)(b) imposes liability in relation to property acquired by “transfer of title.” And it is well-settled that a tax deed does not represent a transfer of title but constitutes the commencement of a “new, original and paramount” title....
...656, 657 (1932) (holding that a tax title “creates in the purchaser a new and original title entirely disconnected with that of the former owner”). The legislature acknowledged this distinction by using contrasting language defining parcel owners in subsections (2)(a) and (b) of section 720.3085....
...arcel owner who has *307 acquired title only by certain designated means; i.e., transfer. And acquisition of title by tax deed does not represent a transfer of title. See Blume,
197 So. at 346 . Accordingly, the trial court erred in determining that section
720.3085(2)(b) provides that liens for unpaid assessments survive the issuance of a tax deed. Furthermore, the trial court erred in concluding that section
720.3085(2)(b) supersedes sections
197.552 and
197.573(2). First of all, these related statutory provisions can be harmonized so that all three are given effect. Under sections
197.552 and
197.573(2), liens for unpaid homeowners assessments do not survive the issuance of a tax deed and are extinguished. Section
720.3085(2)(b) does not save such liens from extinguishment when parcel owners acquire title by tax deed....
...Two facially conflicting statutes can therefore be harmonized where one statute “addresses the precise factual setting under consideration.” Palm Harbor Special Fire Control Dist. v. Kelly,
500 So.2d 1382, 1385 (Fla. 2d DCA), affirmed,
516 So.2d 249 (Fla.1987). Section
720.3085(1) addresses the hen rights of associations and the effective dates of such liens. Section
720.3085(2)(a) addresses the parcel owner’s liability for assessments that come due during his or her ownership, and section
720.3085(2)(b) addresses a parcel owner’s joint and several liability for unpaid assessments that came due up to the time that title is transferred....
...This is the precise factual setting the trial court was required to consider. Sections
197.552 and
197.573(2) are therefore the more specific statutes as to the key issue, and any conflict must be resolved in their favor. In summary, the trial court erred in concluding that section
720.3085(2)(b) provides that liens for unpaid assessments survive the issuance of a tax deed. And the court erred in concluding that section
720.3085(2)(b) supersedes the provisions in sections
197.552 and
197.573(2)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2017 WL 2265370, 2017 Fla. App. LEXIS 7526
...Kaufman v. Shere,
347 So.2d 627 (Fla. 3DCA 1977). The Associations further
3
argued that their Declarations incorporated future changes in the law, and thus the
joint and several liability provision of section
720.3085(2)(b) Florida Statutes
(2016) was incorporated into the terms of their Declarations.1 At the conclusion of
the hearing, the trial court ruled in favor of Colfin, finding that the Declaration of
the Association of each of the associations controlled....
...3d 252 (Fla. 3d DCA 2016),
which adopted the Fourth District Court of Appeal’s decision in Pudlit 2 Joint
Venture, LLP v. Westwood Gardens Homeowners Association, Inc.,
169 So. 3d
145 (Fla. 4th DCA 2015), by citation in a per curiam affirmance.
1 Section
720.3085((2)(b) provides that a third party purchasing a property is
jointly and severally liable with the previous owner “for all unpaid assessments
that came due up to the time of transfer of title.”...
...alleging that any liens for past due assessments were extinguished by the
foreclosure judgments pursuant to the terms of the association's Declaration of
Covenants, Conditions, and Restrictions. Id. Westwood cross-moved for summary
judgment, arguing that section 720.3085, Florida Statutes (2013), mandated that
Pudlit was jointly and severally liable with the prior owners for all unpaid
assessments on the subject properties. Id. Pudlit contended that “section 720.3085
did not impose liability upon appellant, because the declaration's express terms
were not invalidated by the statute or waived by appellant, and imposition of the
statute against the declaration's express terms would unconstitutionally impair its
contractual rights.” Id....
...The trial court denied Pudlit’s summary judgment motion
and granted Westwood’s cross-motion. Id.
5
On appeal, the Fourth District Court of Appeal sided with Pudlit, stating:
The association's argument that the legislature's enactment of
section 720.3085 amended the declaration is without merit....
...The only provisions in the declaration providing for automatic
amendment based on legislative action are limited to amendments
which are “required” by the plain language of the legislation. Nothing
in the language of section 720.3085(2)(b) demonstrates that it is
“required” to be adopted by Florida homeowners' associations. Thus,
the association cannot argue that section 720.3085, as enacted by the
Florida legislature, automatically amended the association's
declaration.
The case before us is exactly on point with Pudlit. The joint and several
liability of section 720.3085(2)(b) was not incorporated into the terms of the
6
Associations’ Declarations....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2014 WL 1031407, 2014 Fla. App. LEXIS 3923
...See Lunohah Invs., LLC v. Gaskell, — So.3d —,
2013 WL 6816627 , 39 Fla. L. Weekly D41 (Fla. 5th DCA 2013); Cricket Props.,
124 So.3d at 307 . *456 Although these cases involved liability for assessments under a statute governing homeowners associations, see §
720.3085(2), Fla. Stat., their reasoning applies equally to liability for assessments on a condominium unit. Section
718.116(1)(a) contains language that is identical in all relevant respects to the language of section
720.3085(2)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 18951, 2015 WL 9258474
...admitting that it "may claim an interest in the subject property." Rivercrest also asserted
as affirmative defenses that it has priority over all creditors except the first mortgage
and that any owner, including a purchaser, is liable for all assessments that come due
under section 720.3085(2), Florida Statutes (2011).
Wells Fargo filed a motion for summary judgment, and the trial court
granted summary judgment and entered a final judgment of foreclosure on March 17,
2014....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 8020, 2015 WL 3388254
...hat any
liens for past due assessments were extinguished by the foreclosure
judgments pursuant to the terms of the association’s Declaration of
Covenants, Conditions, and Restrictions. The association cross-moved for
summary judgment, arguing that section 720.3085, Florida Statutes
(2013), clearly mandates that appellant is jointly and severally liable with
the prior owners for all unpaid assessments on the subject properties, thus
amending the declaration. Appellant argued that section 720.3085 did not
impose liability upon appellant, because the declaration’s express terms
were not invalidated by the statute or waived by appellant, and imposition
of the statute against the declaration’s express terms would
unconstituti...
...o in order
to relieve one of the parties from the apparent hardship or improvident
bargain.’” United States v. Bridgewater Cmty. Ass’n,
2013 WL 3285399,
at *9 (M.D. Fla. June 27, 2013) (citation omitted).
The statute at issue in this case, section
720.3085, provides:
A parcel owner is jointly and severally liable with the
previous parcel owner for all unpaid assessments that came
due up to the time of transfer of title. This liability is without
prejudice to any right the present parcel owner may have to
recover any amounts paid by the present owner from the
previous owner.
§
720.3085(2)(b), Fla....
...Stat.
(2013) (emphasis added).
Significantly, the homeowners’ declaration in the present case provides
that a subsequent owner of a property within the association will not be
liable for payment of any assessments owed by the prior owner. Thus,
section 720.3085(2)(b) conflicts with the declaration of the association in
the case at bar, which provides:
3
The annual and special assessments, together with such
late charges, interest ther...
...h sale or transfer. No sale
or transfer shall relieve such Lot from liability for any
assessments thereafter becoming due or from the lien thereof.
(emphasis added).
The association’s argument that the legislature’s enactment of section
720.3085 amended the declaration is without merit....
...manner otherwise provided for herein.
The only provisions in the declaration providing for automatic
amendment based on legislative action are limited to amendments which
are “required” by the plain language of the legislation. Nothing in the
language of section 720.3085(2)(b) demonstrates that it is “required” to be
adopted by Florida homeowners’ associations. Thus, the association
cannot argue that section 720.3085, as enacted by the Florida legislature,
automatically amended the association’s declaration.1 Compare Kaufman
v....
...um Act,”
and rather outline “an exclusive method of amendment which does not
include an automatic amendment whenever there is a change in the
Condominium Act”). Because the association did not amend its
declaration to specifically adopt section
720.3085, the section should not
be applied to supersede the express terms of the declaration.
Thus, the question in this case becomes whether application of section
720.3085(2)(b) unconstitutionally impairs appellant’s contractual rights
under the association’s declaration which absolves appellant of such
liability. As previously stated, section
720.3085(2)(b) was “not intended to
impair [] contract rights” which were “created for the benefit of
homeowners’ associations and members thereof before the effective date”
of the statute. See §
720.302(2), Fla. Stat. (2013).
1 Likewise, section
720.3085 does not declare association declaration provisions
which waive a third party purchaser’s liability for unpaid assessments on
foreclosed properties to be “null and void as against public policy.” Cf....
...benefit the third party or a class of persons of which the third party is a
member”)).
In Coral Lakes, the bank instituted a foreclosure action against the
homeowners, adding the HOA as a defendant because of a lien for accrued
unpaid assessments. The HOA, relying upon section 720.3085, claimed
that if the bank purchased the mortgaged premises at a foreclosure sale,
then it would be jointly and severally liable with the previous owner to pay
the past due assessments....
...Thus,
the appellate court affirmed, stating that “[t]o hold otherwise would
implicate constitutional concerns about impairment of vested contractual
rights.” Id. at 584. See also Ecoventure WGV, Ltd. v. Saint Johns Nw.
Residential Ass’n,
56 So. 3d 126, 127-28 (Fla. 5th DCA 2011) (holding that
section
720.3085 cannot “be applied to impose joint and several liability
on [appellant] for the unpaid homeowner’s association assessments
incurred by its mortgagor,” because imposing the statute on appellant
“‘would operate to severely, permanently, and immediately change the
parties’ economic relationship ....
...Such “a
reasonable unambiguous restriction will be enforced according to the
intent of the parties as expressed by the clear and ordinary meaning of its
terms.” Shields,
872 So. 2d at 1005-06 (citation omitted).
In summary, the trial court’s reliance on section
720.3085(2)(b) rather
than the provisions of the declaration violated appellant’s right against the
impairment of contract, where appellant was a third-party beneficiary of
the declaration....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 19414, 2008 WL 5352084
...roperty, set a date for public sale, and ordered disbursement of funds from the future sale to LR5A-JV after payment of costs. Subsequently, the Association and LR5A-JV filed post-judgment motions. The Association moved for rehearing, asserting that section 720.3085, Florida Statutes, which became effective on July 1, 2007, granted its liens priority over that of LR5A-JV. LR5A-JV sought clarification and requested the trial court to specifically address the applicability of section 720.3085. The order of clarification indicated that the final judgment was predicated upon the plain language of section 720.3085 and the Association had to seek its remedy "from and through the parcel owners, not in the foreclosure action." Believing *1175 the order of clarification affected the priority of its mortgage, LR5A-JV appealed. [1] The Association argues that section 720.3085(2), Florida Statutes, grants its lien priority over any other lien because it holds the current and previous parcel owners jointly and severally liable for unpaid assessments. This argument is predicated on the first sentence of section 720.3085(2), Florida Statutes (2007), which states, "A parcel owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title." The Association's argument is deficient because there is no record evidence that LR5A-JV purchased the property at public sale. Consequently, section 720.3085(2) is inapplicable because LR5A-JV is not the parcel owner; it is merely a creditor. Furthermore, there is nothing in the plain language of section 720.3085 that can reasonably be construed to give the Association's lien priority over LR5A-JV's mortgage. [2] The trial court's order of clarification correctly recognized that LR5A-JV is not the parcel owner and the Association may not seek relief in the foreclosure action. We decline to address whether section 720.3085 can be retroactively applied because this issue is not yet ripe for adjudication....
...-JV. PALMER, C.J., and GRIFFIN, J., concur. NOTES [1] For the purposes of this appeal, we treat the motion for clarification as a motion for rehearing. [2] The Association does not argue that its lien has priority over that of LR5A-JV independent of section 720.3085, Florida Statutes....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 3266, 2011 WL 830626
COHEN, J. Ecoventure WGV, Ltd. (hereafter “Eco-venture”), challenges whether section 720.3085, Florida Statutes (2007), may be applied to impose joint and several liability on it for the unpaid homeowner’s association assessments incurred by its mortgagor....
...igh bidder at the foreclosure sale in March 2008. Subsequently, the Association demanded Ecoventure pay more than two years’ worth of assessments incurred by DMHB. Ecoventure refused and the Association filed suit, arguing that its Declaration and section 720.3085 imposed an obligation on Ecoventure to pay the delinquent assessments. In relevant part, the trial court found that section 720.3085 operated “outside of the Declarations” and imposed “an additional requirement on a certain class of property ownei's over and above what the Declarations may require.” Because Ecoventure was a parcel owner as defined by section 720.3085(1), the trial court concluded it was jointly and severally liable for the unpaid assessments....
...ssessments, interest, and administrative costs. We review these legal conclusions de novo. See Fla. Hosp. Waterman, Inc. v. Buster,
984 So.2d 478, 485 (Fla.2008). Of the arguments raised by Ecoventure, the one we find dispositive is whether applying section
720.3085 impaired its contract rights....
...Instead, the unpaid assessments would be added back to the Association’s budget for common expenses and paid by all of the homeowners, including the mortgagee, on a pro-rata basis. 1 When Ecoventure extended its mortgage to DMHB in 2001, its rights under the Declaration vested. Imposing section
720.3085, which was enacted after the mortgage was extended, completely alters Ecoventure’s vested rights by making it *128 jointly and severally liable with the “previous parcel owner for all unpaid assessments that came due up to the time of transfer of title.” §
720.3085(2). 2 The court in Coral Lakes Community Association, Inc. v. Busey Bank, N.A.,
30 So.3d 579, 584 (Fla. 2d DCA 2010), recently addressed the very issue raised in this appeal and concluded the enactment of “section
720.3085 cannot disturb that prior, established contractual relationship.” We likewise agree that imposing the statute on Ecoventure “would operate to severely, permanently, and immediately change the parties’ economic relationship ......
...A written statement of the Association that its lien is subordinate to a mortgage shall be dispositive of any question of subordination. . This conclusion is not altered by the fact that the "present parcel owner may [seek] to recover any amounts paid by the present owner from the previous owner.” § 720.3085(2), Fla....
...eaningful relief. This is particularly true when title is obtained as a result of foreclosure proceedings and, as in this case, the foreclosed property owner filed for bankruptcy. . The Association could have incorporated the subsequent enactment of section 720.3085 into the Declaration by including language expressly incorporating by reference the provisions of Chapter 720....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2013 WL 3357517, 2013 Fla. App. LEXIS 10755
...1st DCA 2007) (stating that a legislative act impairs a contract when the contract “is made worse or is diminished in quantity, value, excellence or strength.”); But cf. Coral Lakes Cmty. Ass’n v. Busey Bank, N.A.,
30 So.3d 579, 583-84 (Fla. 2d DCA 2010) (holding that section
720.3085, which makes purchasers at foreclosure liable for unpaid assessments, could not apply because section was enacted after declaration providing that successors in title were not liable for assessments went into effect, and application of the statute would thus impair vested contract rights)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 385491, 2012 Fla. App. LEXIS 1785
...ncial burden. The Bank had failed to conclude the case with a foreclosure sale, and this delay limited the amount of special and quarterly assessments that the Bank would have to pay if it acquired title to the property— which it likely would. See § 720.3085(2)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal
...Greenfield of the Greenfield Law
Group, P.A., Boca Raton, for appellee.
TAYLOR, J.
A property owners’ association, Villas of Windmill Point II (the
“Association” or the “Villas Association”), appeals a final judgment
concerning a property owner’s liability for assessments under section
720.3085(2), Florida Statutes (2011). We affirm the final summary
judgment and hold that, although the current parcel owner did not directly
qualify for the safe harbor provision under section 720.3085(2)(c), it did
indirectly benefit from the safe harbor provision because, under section
720.3085(2)(b), it was jointly and severally liable with the prior parcel
owner for all unpaid assessments due up to the time of transfer of title,
and the prior parcel owner did qualify for the safe harbor provision.
However, we remand for t...
...A foreclosure judgment was entered in
favor of CitiMortgage. Following a foreclosure sale, CitiMortgage took title
to the property. CitiMortgage deeded the property to Fannie Mae in 2011.
A dispute arose over whether Fannie Mae was entitled to the protection
of the safe harbor provision of section 720.3085(2)(c), Florida Statutes,
which limits the liability of a first mortgage holder for unpaid assessments.
Fannie Mae’s agent, Nationstar, filed suit against the Association,
asserting three counts in its amended complaint: Count I – an action to
compel the Association’s compliance with the safe harbor provision of
section 720.3085(2)(c), Florida Statutes; Count II – an action for
declaratory relief; and Count III – an action for damages.
Nationstar eventually moved for summary judgment on Counts I and
II. The Association filed an affidavit in response to the motion for summary
judgment, but the affidavit essentially consisted of legal conclusions
concerning the applicability of the safe harbor provision of section
720.3085(2)(c)....
...The standard of review of an order granting summary judgment is de
novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130
(Fla. 2000).
On appeal, the Association’s primary argument is that Fannie Mae was
not entitled to the safe harbor provision of section
720.3085(2)(c) because
it was not a first mortgagee (or its successor or assignee) that acquired title
to the parcel by foreclosure or by deed in lieu of foreclosure.
Section
720.3085(2), Florida Statutes (2011), governs a parcel owner’s
liability for assessments imposed by a homeowners’ association:
(2)(a) A parcel owner, regardless of how his or her title to
property has been acquired, including...
....
(emphasis added).
Here, although Fannie Mae was not “a first mortgagee, or its successor
or assignee as a subsequent holder of the first mortgage who acquire[d]
title to a parcel by foreclosure or by deed in lieu of foreclosure” 1 under
section 720.3085(2)(c), Fannie Mae does indirectly benefit from the safe
harbor provision because, under section 720.3085(2)(b), it is jointly and
severally liable with the prior parcel owner, CitiMortgage, for all unpaid
assessments due up to the time of transfer of title, and CitiMortgage did
qualify for the safe harbor provision.
1Stated plainly,...
...sure action, and (3) it
acquired title to the property by foreclosure. Notably, in this appeal, the
Association does not raise any argument challenging CitiMortgage’s
entitlement to the safe harbor provision.
The Association incorrectly reads section
720.3085(2)(c) in isolation,
ignoring the interpretive principle that statutes must be read as a whole.
See, e.g., Woodham v. Blue Cross & Blue Shield of Fla., Inc.,
829 So. 2d
891, 898 (Fla. 2002). The Association overlooks that, under section
720.3085(2)(b), Fannie Mae’s liability was coextensive with that of
CitiMortgage for all unpaid assessments that were due up to the time of
transfer of title. In other words, CitiMortgage’s entitlement to the safe
harbor protection of section
720.3085(2)(c) is relevant to determining the
amount of Fannie Mae’s “joint and several liability” with CitiMortgage
under section
720.3085(2)(b)....
...Thus, when Fannie Mae acquired title to
the property from CitiMortgage, it became jointly and severally liable with
CitiMortgage for all unpaid assessments owed by CitiMortgage at the time
of transfer of title.
In sum, CitiMortgage qualified for the safe harbor provision of section
720.3085(2)(c), and Fannie Mae is jointly and severally liable with
CitiMortgage for all unpaid assessments that came due up to the time of
transfer of title to Fannie Mae.
None of the Association’s other arguments merit reversal of the
summary judgment. However, we remand for the trial court to correct the
final judgment to reflect that Fannie Mae’s liability for assessments is
limited to $1,036, 2 which is the safe harbor amount under section
720.3085(2)(c)2., 3 plus (a) all assessments that came due while Fannie
2The final judgment incorrectly states that 1% of the original mortgage debt is
$1,306.
3 It was unnecessary for Nationstar to present evidence of the “unpaid common
expenses and regular periodic or special assessments that accrued or came due
during the 12 months immediately preceding the acquisition of title . . . .” §
720.3085(2)(c)1., Fla....
...4
Mae was the parcel owner, and (b) all unpaid assessments (not merely
unpaid monthly assessments) that came due after CitiMortgage took title
to the property up to the time of transfer of title to Fannie Mae. See §
720.3085(2)(a), (b), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 17583
...ded Declaration would have priority over the subsequently-filed mortgage under common law. LR5A-JV, LP v. Little House, LLC,
998 So.2d 1173 , 1175 n. 2 (Fla. 5th DCA 2008). The Florida Legislature, however, modified the common law scheme by enacting Section
720.3085(2)(c), Florida Statutes, sometimes referred to as a “safe harbor” statute....
...Continuing, this subsection of the statute further provides that “[t]he limitations on first mortgagee liability ... apply only if the first mortgagee filed suit against the parcel owner and initially joined the association as' a defendant in the mortgage foreclosure action.” § 720.3085(2)(c), Fla....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 23 Fla. L. Weekly Fed. B 337, 2012 WL 1889792, 2012 Bankr. LEXIS 2378
...12 Alafaya disputes Federal’s priority claim and argues it has a superior, fully secured lien because a new Florida statute enacted in 2008 allows Alafaya’s lien to trump Federal’s lien, despite the subordination clause in the recorded Declaration. 13 The relevant section of Fla. Stat. § 720.3085 (1) reads: When authorized by the governing documents, the [homeowners’] association has a lien on each parcel to secure the payment of assessments and other amounts provided for by this section....
...Alafaya as an unsecured creditor is not entitled to the portion of its claim for post-petition fees and expenses because § 506(b) of the Bankruptcy Code 15 authorizes a creditor to recover post-petition fees, costs, and other expenses only if the creditor holds an over-secured claim. 16 In this case, § 720.3085 does not apply because Alafaya never filed a claim of lien for debtors’ delinquent HOA fees....
...back to the Declaration when fees are assessed, but according to Section 6.8, a claim of lien does not occur automatically. Alafaya specifically must have recorded a claim of lien in the public records to be *111 entitled to elevated priority under § 720.3085, which it never did. Therefore, Fla. Stat. § 720.3085 does not apply....
...he declaration must contain specific language indicating that the lien relates back to the date of the filing of the declaration or that it otherwise takes priority over intervening mortgages.” 19 Along that vein, Alafaya’s primary argument that § 720.3085 applies 20 is based on footnote found in Ecoventure WGV....
...es the Declaration “be construed in accordance with the laws of the state of Florida, both substantive and remedial” as incorporating Chapter 720 into the Declaration. 22 The Court finds this falls far short of expressly incorporating Fla. Stat. § 720.3085 because it does not refer to Chapter 720 specifically. 23 Furthermore, Ecoventure overlooks the fundamental mandate in Florida Statute § 720.3085 that an HOA must first record a claim of lien in the public records before it can trump another claim. Even if Alafaya did file a claim of lien, which it has not, two District Court of Appeals in Florida have held § 720.3085 does not operate retroactively to improve a lien’s priority to a position it did not have prior to July 1, 2008....
...a result repugnant to our constitutions.” 26 Federal’s lien relates back to the dates of its 2007 mortgage, and the 2008 Florida statute cannot reach back to alter the priorities established at that date. For these reasons, Alafaya may not rely on Florida Statute § 720.3085 to elevate its lien priority ahead of Federal....
...rs’ *113 share of the common expenses” 31 is simply disingenuous. The subordination clause in the Declaration induced Federal to loan debtors the money to purchase the residential property in exchange for a secured priority lien. Florida Statute § 720.3085 does not apply to alter the parties’ priorities because it does not operate retroactively....
...do not agree with the treatment. Therefore, because Alafaya is not impaired and may not vote against the plan, debtors’ motion for cram down is granted. In conclusion, Debtors’ motion to value Alafaya’s claim is granted because Florida Statute § 720.3085 does not apply....
...120, FN 1 (Seminole County Property Appraiser determined the value is $164,714). . Doc. No. 120 at 3. See 11 U.S.C. § 506 (b); Till v. SCS Credit Corp.,
541 U.S. 465 ,
124 S.Ct. 1951 ,
158 L.Ed.2d 787 (2004) (interpreting § 506(b)). .Doc. No. 131. . Fla. Stat. §
720.3085 (emphasis added)....
...es and costs). . Bessemer v. Gersten,
381 So.2d 1344, 1348 (Fla. 1980) (citing Certain Lands v. Ideal Farms Drainage District,
156 Fla. 774, 778 ,
24 So.2d 585 , 587 (1945); Feemster v. Schurkman,
291 So.2d 622, 626 (Fla. 3d DCA 1974)). . Fla. Stat. §
720.3085 ....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 4889
...d attorney’s fees.
FNMA subsequently filed a complaint for declaratory and injunctive relief,
alleging that the amounts set forth in the estoppel letters did not comply with the
“safe harbor” protection provided to first mortgagees in section 720.3085(2)(c),
Florida Statutes (2014)....
...improperly included attorney’s fees and costs which they were not entitled to
2
collect from FNMA. FNMA further alleged that the Associations refused to
provide estoppel letters providing FNMA with the safe harbor protection of section
720.3085(2)(c). FNMA alleged that it was in need of a declaration that FNMA
was entitled to the protection of section 720.3085(2)(c), and that the Associations
were not entitled to attorney’s fees, costs, interest, or other charges accruing prior
to the certificate of title being issued.
The Associations each filed an answer and affirmative defenses. As
affirmative defenses, the Associations alleged that section 720.3085 required them
to apply any payments received from FNMA first to late charges and interest, and
then to costs and attorney’s fees incurred in collection, and only then to
assessments. The Associations further alleged that they alerted FNMA to sums
necessary to bring FNMA’s account current, and that the Associations “would
have to violate Florida Statutes [section] 720.3085 in order to provide the relief it
requested.”
FNMA filed a motion for summary judgment, asserting that the
Associations’ demand for attorney’s fees and costs was inconsistent with FNMA’s
entitlement to limited liability under section 720.3085(2)(c). The trial court
entered final judgment in favor of FNMA. The trial court found that, pursuant to
section 720.3085(2)(c), FNMA’s liability to the Associations “for unpaid
assessments and all other charges, including attorneys’ fees, costs, interest, and late
3
fees incurred prior to April 2, 2013 is limited to . . . [the] 12 past months of
assessments prior to [FNMA] taking title to the property.” The trial court
concluded that because the safe harbor protection of section 720.3085(2)(c)
applied, the Associations were not entitled to interest, late fees, attorney’s fees,
court costs, collection costs, or other charges incurred.
The Associations filed a motion for rehearing, arguing that the final
judgment “reads out of existence Florida Statutes §720.3085(3)(b).” The
Associations asserted that were they to apply the sums FNMA was directed to pay
in the final judgment in the order required by section 720.3085(3)(b), it would not
bring current either Association’s account. The trial court denied the motion for
rehearing and this appeal ensued.1
II. ANALYSIS
At issue in this appeal are two subsections of section 720.3085: subsection
(2)(c), the so-called “safe harbor” provision,2 and subsection (3)(b).
Section 720.3085(2)(c) states as follows:
1 We review a final summary judgment de novo....
...Joinder of the association is not required if, on the
date the complaint is filed, the association was dissolved
or did not maintain an office or agent for service of
process at a location that was known to or reasonably
discoverable by the mortgagee.
(emphasis added).
Section 720.3085(3)(b) states as follows:
(3) Assessments and installments on assessments that are
not paid when due bear interest from the due date until
paid at the rate provided in the declaration of covenants...
...While the Associations raise several points on appeal, only one merits
discussion. The Associations argue that the final judgment should be “vacated”
because it improperly prohibits them from complying with their statutory duty to
apply payments as required by section 720.3085(3)(b).3
That FNMA’s liability for “unpaid common expenses and regular periodic
or special assessments” does not include amounts for attorney’s fees, costs, and
interest, however, is evident from the plain language of the statute. Section
720.3085(2)(b) provides that “[a] parcel owner is jointly and severally liable with
the previous parcel owner for all unpaid assessments that came due up to the time
3 It should be noted that FNMA’s first response on this issue is tha...
...e Declarations filed below or
considered by the trial court. Equally important, FNMA did not file a cross-appeal
from the final judgment.
6
of transfer of title.” That liability, however, is limited in section 720.3085(2)(c)—
the safe harbor provision—as it concerns “a first mortgagee ....
...shall be the lesser of” either “unpaid common expenses and regular
periodic or special assessments that accrued or came due during the 12 months
immediately preceding the acquisition of title,” or one percent of the original
mortgage debt. § 720.3085(2)(c)1., 2., Fla....
...to the collection process that accrued
before the banks and HUD took title. Id. at 1349-50. The homeowners’
association also sought late fees. Id. In analyzing the safe harbor provision for
foreclosing first mortgagees contained in section 720.3085(2)(c), the court noted
that “the existence of unpaid assessments is the fact which triggers the foreclosing
first mortgagee’s liability to the homeowners’ association.” Id....
...arbor
provision did not include amounts for interest, late fees, attorney’s fees, or costs.
Finally, the final judgment does not improperly prohibit the Associations
from complying with the statutory application of payments set forth in section
720.3085(3)(b). The final judgment determined the amount due from FNMA to
the Associations, in accordance with the safe harbor provision set forth in section
720.3085(2)(c), and did not address itself to how the Associations were to apply
9
the payment made. The priority of payment schedule established by section
720.3085(3)(b) cannot create entitlement to any payments other than those
expressly established by section 720.3085(2)(c). To the extent the Associations are
required to itemize payments pursuant to section 720.3085(3)(b), the line item
entries for interest accrued, administrative fees, and attorney fees and costs,
presumably would be zero dollars, as the Associations have not and are not entitled
to receive payments for those items under the safe harbor provision....
...4th DCA 1996), for the proposition
that they are required to apply payments in accordance with the formula set forth in
subsection (3)(b), adds nothing to their argument. St. Croix and Ward addressed
section
718.116(3), Florida Statutes, the section of the condominium association
statutes that is analogous to section
720.3085(3)(b)....
...CONCLUSION
For the reasons set forth above, this Court finds that the trial court did not
err in determining that the Associations are not entitled to interest, late fees,
attorney’s fees and costs from FNMA because the safe harbor protection of section
10
720.3085(2)(c) applies....
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 4234, 2016 WL 1062800
...Nor did the record indicate how Cordero’s payments were applied to the total amount due. With its motion for rehearing, the Association included the spreadsheet showing the simple calculation of interest on the amounts due, with credit for the payments Cordero made applied to the interest amount per Section 720.3085(3)(b), Florida Statutes (2015)....
CopyPublished | Florida 4th District Court of Appeal
...that the filing of a lis pendens does not automatically preclude an
association from foreclosing on a lien imposed under the declaration,
although the association’s foreclosure may be subordinate to the
foreclosure of the mortgage.
This is reflected in section 720.3085, Florida Statutes (2015), which
controls homeowners’ association liens and priority for unpaid
assessments. The statute provides that the lien for unpaid assessments
relates back to the recording of the declaration of community.
§ 720.3085(1), Fla....
...county in which the parcel is located.
Id.; see also §
718.116(5)(a), Fla. Stat. (2015) (providing similarly with
regard to association assessments on condominiums).
The provisions of the Declaration of Covenants recorded by the
Association operate as section
720.3085(1) contemplates....
...ainst the homeowner
with foreclosure of its lien for unpaid assessments, imposed under its
declaration recorded before the first mortgagee recorded its notice of lis
pendens, while a mortgage foreclosure proceeding is pending is further
supported by section 720.3085(5)(b), Florida Statutes. Generally, a claim
6
of lien cannot be foreclosed by a homeowners’ association without
providing forty-five days’ notice to the homeowner. § 720.3085(5), Fla.
Stat. However, the association need not provide such notice “if the parcel
is subject to a foreclosure action or forced sale of another party[.]”
§ 720.3085(5)(b), Fla....
CopyPublished | District Court, S.D. Florida | 2012 WL 2930529, 2012 U.S. Dist. LEXIS 99516
...Pursuant to Florida Statute, "any payment received by an association and accepted shall be applied first to any interest accrued, then to any administrative late fee, then to any costs and reasonable attorney’s fees incurred in collection, and then to the delinquent assessment.” Fla. Stat. § 720.3085 (3)(b) (emphasis added)....
CopyPublished | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 82
...The filing of a lis pen-dens does not automatically preclude an association from foreclosing on a lien imposed under the declaration against parties other than a first mortgagee, although the association’s foreclosure may be subordinate to the foreclosure of a first mortgage. This is reflected in section 720.3085, Florida Statutes (2015), which controls homeowners’ association liens and priority for unpaid assessments. The statute provides that the lien for unpaid assessments relates back to the recording of the declaration of community. § 720.3085(1), Fla....
...y in which the parcel is located. Id,.-, see also §
718.116(5)(a), Fla. Stat. (2015) (providing similarly with regard to association assessments on condominiums). The provisions of the Declaration of Covenants recorded by the Association operate as section
720.3085(1), Florida Statutes, contemplates....
...That a homeowners’ association can proceed against the homeowner with foreclosure of its lien for unpaid assessments imposed under its declaration, recorded before the first mortgagee recorded its notice of lis pendens, while a mortgage foreclosure proceeding is pending, is further supported by section 720.3085(5)(b), Florida Statutes. Generally, a claim of lien cannot be foreclosed by a homeowners’ association without providing forty-five days’ notice to the homeowner. § 720.3085(5), Fla. Stat. However, the association need not provide such notice “if the parcel is subject to a foreclosure action or forced sale of another party[.]” § 720.3085(5)(b), Fla....
CopyPublished | District Court, S.D. Florida | 2014 WL 28723, 2014 U.S. Dist. LEXIS 488
...Homeowners’ associations are regulated by chapter 720, Florida Statutes, and by the association’s declaration and its duly-enacted by-laws. 13 Much like chapter 718, chapter 720 contains a “safe harbor” which limits the liability of foreclosing first mortgagees. Section 720.3085(2)(c), Florida Statutes, provides as follows: Notwithstanding anything to the contrary contained in this section, the liability of a first mortgagee, or its successor or assignee as a subsequent holder of the first mortgage who acqui...
...npaid common expenses and regular periodic assessments.” §
718.116(l)(b)l.a, Fla. Stat. For homeowners’ associations, the safe harbor limits liability to twelve months of “unpaid common expenses and regular periodic or special assessments.” §
720.3085(2)(c)l, Fla....
...hat adopted the "the provisions of the Condominium Act as presently existing, or as it may be amended from time to time.... ”). . §
720.303, Fla. Stat.; see §
720.301(8), Fla. Stat. (defining "governing documents"). . §§
718.116(1) Fla. Stat.; §
720.3085(2)(a), Fla. Stat. . §
718.116(3), Fla. Stat.; see also §
720.3085(3), Fla....
CopyPublished | Florida 4th District Court of Appeal
...he did not receive the required written notifications of the amounts due,
and that he did not owe what the association was demanding.
Appellant’s motion for summary judgment claimed that the association
overstated the amount of assessments due and, therefore, did not comply
with section 720.3085(1)(a), Florida Statutes (2018), requiring a claim of
lien to include “the assessment amount due.”
The association concedes that it made a mistake in its calculation of
the assessments, but that it corrected the amount owed wh...
...Accordingly, the association’s compliance with
these contractual requirements before imposing its lien and foreclosing on
appellant’s property are genuine issues of fact that remain in dispute.
The dissenting opinion urges us to adopt an interpretation of section
720.3085(1)(a), Florida Statutes (2018), that would invalidate any claim of
lien that contains an error in the amount of unpaid assessments....
...error in a claim of lien, big or small, would wholly invalidate the amount
of an association’s claim, but it chose to not do so. Instead, the Legislature
provided homeowners with a procedure for contesting an error in a claim
of lien by either filing a notice of contest pursuant to section
720.3085(1)(b), Florida Statutes (2018), or challenging the foreclosure
action....
...Like all
claims, it must be proven before the association can be considered the
prevailing party. If the association does not prevail on the issues in
dispute, the homeowner may recover his or her attorney’s fees and costs
against the association.
Nothing in section 720.3085(1)(a) suggests that the claim must be free
of error for it to serve as an otherwise valid claim of lien....
...Thus,
the affirmance in Meadows with a citation to Saar could not have extended
a holding that was never reached in the case it cites.
Conclusion
While we conclude that the circuit court erred in entering summary
judgment for the association, we do not interpret section 720.3085(1)(a) as
invalidating a claim of lien simply because it contains a mistake or
overstatement in the amount of unpaid assessments....
...denial of appellant’s summary judgment motion. Appellant challenges a
final judgment of foreclosure of a homeowner association lien for unpaid
assessments. He contends that the court erred in enforcing the claim of
lien because it overstated the amount of assessments due. Because
section 720.3085, Florida Statutes (2018), requires that a claim of lien, to
be valid, must include “the” amount due, and such statutes must be
strictly construed, I would reverse the denial of appellant’s motion for
summary judgment and remand...
...t valid, that he had
made payments which had not been credited to him, and that he had not
received proper notice of the payments.
Appellant also moved for summary judgment. He argued that the claim
of lien was invalid for failure to comply with section 720.3085, Florida
Statutes (2018), because the claim of lien overstated the amount of
assessments due....
...Article 7.01 of
the Declaration provides that the HOA “may enforce the collection thereof
and all charges thereon in the manner authorized by law and this
Declaration.” Thus, the Declaration requires that enforcement occur in
“the manner authorized by law.”
Section 720.3085(1)(a), Florida Statutes (2018), provides in part:
To be valid, a claim of lien must state the description of the
parcel, the name of the record owner, the name and address
of the association, the assessment amount due, and the due
date....
...review.
7
In Saar v. Wellesley at Lake Clarke Shores Homeowners Association,
Inc.,
68 So. 3d 417 (Fla. 4th DCA 2011), we considered a claim of lien filed
under section
718.116(5), which is nearly identical to section
720.3085.
There, the HOA filed suit against the homeowner for two unpaid
assessments....
...(2018).
When the Legislature intends to provide for such provisions, “it obviously
knows how to say so in unmistakable language.” Kraft Gen. Foods, Inc. v.
Rosenblum,
635 So. 2d 106, 109 (Fla. 4th DCA 1994). The Legislature did
not see fit to include such language in section
720.3085.
Appellee argues that this is a mere scrivener’s error, which may be
overlooked....
...He balked at paying
mounting attorney’s fees and late charges for assessments of which he
claimed he was unaware.
The filing of a claim of lien which does not comply with the statute may
prevent foreclosure of it without amendment, correction or reformation.
But section 720.3085 does not affect the ability to obtain a civil judgment
for unpaid assessments when pled....
CopyPublished | Florida 1st District Court of Appeal
...the creditor. Otherwise, there is no right of redemption.
This section applies to foreclosures of homeowners’ association
liens. See Chase Fin. Servs., LLC v. Edelsberg,
129 So. 3d 1139, 1141 n. 2 (Fla. 3d
DCA 2013) (citing to section
720.3085(1)(c), Florida Statutes (2013) (providing that
an “association may bring an action in its name to foreclose a lien for assessments
in the same manner in which a mortgage of real property is foreclosed”)).
Where a final j...
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 6816627, 2013 Fla. App. LEXIS 20384
...liens on the property for unpaid assessments (collectively, “Appellees”). No one contested the validity of the tax deed. Appellees defended the quiet title action, asserting that Appellant remained liable for the unpaid assessments by virtue of section 720.3085(2)(b), Florida Statutes (2011), which imposes joint and several liability on a parcel owner for unpaid assessments that “came due up to the time of transfer of title.” Appellant countered that the lien and liability to pay unpaid...
... (Emphasis added). The trial judge granted summary judgment in favor of Appellees, concluding that, although the liens for unpaid assessments did not survive the issuance of the tax deed by operation of sections
197.552 and
197.573(2), pursuant to section
720.3085(2)(b), Appellant remained personally liable for the assessments....
...ize a lien for unpaid assessments or “[require] the grantee to expend money .... ” (Emphasis added). Clearly, this extinguishes not only the lien itself but the indebtedness, at least to the extent of the grantee’s liability for the debt. *621 Section
720.3085(2)(b), on the other hand, is a more general statute that purports to impose liability on any grantee for unpaid assessments, without specific reference to the manner by which the grantee acquires title. If section
720.3085(2)(b) is construed to apply here, it is directly contradictory to the more specific sections
197.552 and
197.573(2)....
...e specific statute is given effect and the general statute is given effect only to the extent that it does not contradict the specific statute. Adams v. Culver,
111 So.2d 665, 667 (Fla.1959). Doing so here leads us to the inescapable conclusion that section
720.3085(2)(b) does not apply to a parcel owner who acquires title by tax deed....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 6800978, 2013 Fla. App. LEXIS 20337
...Lazarus, was there ever a statement made by you to the effect that "These condo sales never go through if there’s a first mortgage?” THE WITNESS [Lazarus]: No. . We, like our sister Court, apply the provisions of Chapter 45 to foreclosures of homeowners’ association liens. See § 720.3085(l)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 18025, 2015 WL 7752864
...hat of the Bank.
We have considered and reject the Association’s argument that the
Bank’s failure to file exceptions to the special master’s report precludes
1The mortgage and note were executed prior to the July 1, 2007 effective date of
section 720.3085, Florida Statutes (2007)....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 18944, 2010 WL 5017323
...e priority of its mortgage, LR5A appealed. As a result, the sale was cancelled. This Court subsequently affirmed the final judgment of foreclosure, ruling that LR5A's 2005 recorded mortgage was superior to the Association's assessment liens and that section 720.3085(2), Florida Statutes (2007), did not dictate otherwise....
...State,
817 So.2d 799, 806 (Fla.2002). LR5A's argument not only contravenes the provisions of section
45.031, but also ignores the Association's interest in collecting lawful assessments on the subject property. As the Association points out, LR5A is not obligated under section
720.3085, Florida Statutes, to pay the Association's assessments, yet, the Association *695 must still maintain the common property and facilities, which inure to the benefit of the property....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 13220, 2016 WL 4547956
...f New York, as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2005-40CB, Mortgage Pass Through Certificates, Series 2005-40CB (“BONY”). BONY filed suit to compel Villas’ compliance with the safe harbor, provision of section 720.3085(2)(c), Florida Statutes, and for declaratory relief....
...Villas as a defendant in the initial foreclosure' action, and (3) acquired the property by deed in lieu of foreclosure. We affirm the trial court’s entry of summary judgment for BONY, because BONY’s affidavit established all the requirements of section 720.3085(2)(c), and the trial court properly found that the Villas’ affirmative defenses were legally insufficient to defeat BONY’s cause of action....
CopyPublished | Florida 4th District Court of Appeal
...f appeal within thirty days of the
more recent order.”).
The Appellees’ Motion for Attorney’s Fees
Rene and Surmaty move for appellate attorney’s fees on the following
grounds:
By operation of Fla. Stat. § 702 [sic], et seq., §
720.3085, and
§
720.305, Appellees are entitled to recover attorney’s fees
under a statute awarding fees to the prevailing party setting
aside a foreclosure decree in litigation....
...Flagstar
Bank, FSB,
60 So. 3d 1163 (Fla. 4th DCA 2011). Fla. Stat. §
59.46 includes a payment of attorney’s fees to the prevailing
party on appeal as well.
None of the cited authorities authorize an award of attorney’s fees to
Rene and Surmaty.
Section
720.3085(1)(c), Florida Statutes (2024), states in relevant part:
“The association is entitled to recover its reasonable attorney’s fees
incurred in an action to foreclose a lien or an action to recover a money
judgment for unpaid assessm...
...Instead, Rene was a nominal defendant to the foreclosure
action, sued only as a party with a potential interest in the property due
to his status as a judgment creditor of the principal defendant. And
Surmaty was not a named defendant at all—he was a third-party
purchaser at a foreclosure sale.
The fee provisions in section
720.3085 and section
720.305(1) do not
authorize an award of fees to Rene or Surmaty on these facts....
CopyPublished | Florida 4th District Court of Appeal
...“Association”) filed a foreclosure complaint in county court against
appellant, as successor trustee of a 2004 Land Trust, and two unknown
tenants. The Association asserted two counts: (1) a count to foreclose a
claim of lien for assessments in accordance with section 720.3085, Florida
Statutes (2016); and (2) a count for damages seeking to recover delinquent
assessments since November 2013 in the amount of $3,857.07, plus
interest, late charges, costs and attorney’s fees.
Because this case involves...
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 3316873, 2012 Fla. App. LEXIS 13462
...Z, Senior Judge. This is an appeal from an order concerning the rents paid pendente lite by the tenant of a condominium office unit which divided them between the appellee condominium association, which had filed an action to foreclose its lien, see § 720.3085, Fla....
CopyPublished | Florida 5th District Court of Appeal
...bankruptcy, except as may otherwise be provided in
this judgment; to enter a reforeclosure judgment/order
to correct errors or omissions in this foreclosure action;
or to determine the amounts due any association
under §
718.116 or §
720.3085....
CopyPublished | Florida 4th District Court of Appeal
...Gonano of Gonano & Harrell, Fort Pierce, for appellee.
KLINGENSMITH, J.
At a foreclosure sale in March of 2014, U.S. Bank purchased property
governed by Emerald Estates Community Association. Months later,
Emerald Estates sent U.S. Bank an estoppel letter claiming that pursuant
to section 720.3085(2)(c), Florida Statutes (2016), it was entitled to twelve
months of unpaid assessments that accrued prior to the bank taking title,
and demanding reimbursement of costs and attorney’s fees for collection
efforts associated with unpaid assessments.
After U.S....
...Federal National Mortgage
Ass’n,
188 So. 3d 76 (Fla. 3d DCA 2016), and reasoned that Emerald
Estates was not permitted to charge for costs and attorney’s fees “that
accrued prior to [U.S. Bank] taking title on March 4, 2014.” (Emphasis
added).
We agree that based on section
720.3085(2)(c) Emerald Estates was not
entitled to costs and attorney’s fees that accrued prior to U.S....
CopyPublished | United States Bankruptcy Court, S.D. Florida.
...lorida Condominium Act specifies that, upon the sale of a condominium, pre-sale debts owing to the condominium association become the in personam obligations of the new owners and continue to be in rem encumbrances on the condominium. See Fla. Stat. § 720.3085 (2)(b) ("A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments that come due up to the time of transfer of title")....
CopyPublished | Florida 3rd District Court of Appeal
...ounty, Michael G.
Barket, Judge.
Kenzie N. Sadlak, P.A. and Kenzie N. Sadlak, for appellant.
Topouzis & Associates, P.C., and Tyler E. Mesmer, for appellee.
Before FERNANDEZ, MILLER and LOBREE, JJ.
PER CURIAM.
Affirmed. See § 720.3085(2)(b), Fla....
...(2022) (“A parcel owner is
jointly and severally liable with the previous parcel owner for all unpaid
assessments that came due up to the time of transfer of title.”); Villas of
Windmill Point II Prop. Owners’ Ass’n, Inc. v. Nationstar Mortg., LLC,
229
So. 3d 822, 824 (Fla. 4th DCA 2017) (“[U]nder section
720.3085(2)(c), [the
third-party purchaser] does indirectly benefit from the safe harbor provision
because, under section
720.3085(2)(b), it is jointly and severally liable with
the prior parcel owner ....
