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Insider Real Estate and Community Association Law Update April, 2019





STATUTE OF LIMITATIONS FOR DEFICIENCY STARTS WITH FORECLOSURE FINAL JUDGMENT



Dyck-O’Neal, Inc. v. Norton, No. 2D17-4968 (2d DCA March 15, 2019)



After entry of a final foreclosure judgment and foreclosure sale which did not satisfy the amounts owed pursuant to a promissory note and mortgage, the judgment creditor instituted a deficiency action seeking damages, interest, costs and attorneys fees. The deficiency action was filed less than five years after entry of the final judgment but more than five years after the first default on the promissory note. The borrowers raised the statute of limitations as a defense, arguing that the deficiency action had to be brought within five years of the initial default, and the trial court granted summary judgment in their favor.



The judgement creditor appealed, and Florida’s Second District Court of Appeal reversed the summary judgment because the deficiency claim did not accrue with the original default but rather upon entry of the foreclosure judgment and subsequent foreclosure sale. It is critical for both judgment creditors and judgment debtors to recognize the distinction between the default date under the note and mortgage and the judgment date for purposes of assessing liability, if any, for a deficiency claim.







LIS PENDENS BASED ON EQUITABLE LIEN DISCHARGED



Delta Aggregate, Ltd. Liab. Co. v. Hermes Hialeah Warehouse, Ltd. Liab. Co., No. 4D18-2252 (4th DCA March 6, 2019)



“Lis pendens” literally means a pending lawsuit, and is defined as the jurisdiction, power, or control that courts acquire over property involved in a pending suit. A lis pendens is not designed to aid either side in a dispute; rather, its purpose is to notify third parties of pending litigation and protect its proponents from intervening liens that could impair or extinguish claimed property rights.  As a practical matter a lis pendens can be an impediment to the sale of real property. Chapter 48 of the Florida Statutes has superseded common law making Florida’s lis pendens doctrine wholly statutory.



A claim for an equitable lien can support a lis pendens, but such a claim must be founded either upon an instrument recorded in the public records or a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit. In Delta, the holder of a promissory note sued the owner of a mining operation for money owed and an accounting.  After its initial lis pendens was discharged, the holder amended its complaint to include a count to impose an equitable lien on the real property and filed a second lis pendens.  The trial court refused to discharge the second lis pendens and the property owner appealed.



The appellate court agreed with the property owner and ordered the discharge of the lis pendens because there was no “fair nexus” between the property that was subject of the lis pendens and the dispute embodied in the amended complaint.  The dispute was based solely on the property owner’s alleged failure to pay sums due from the sale of materials excavated from the real property and the holder of the promissory note did not have an interest in or lien against the property.  In closing, the Fourth District noted that, as an additional basis for its ruling, the lis pendens was improper because the note holder could obtain complete relief without reference to the title of the real property.







NON-SIGNATORY INVOKES ARBITRATION PROVISION



AP Atl., Inc. v. Silver Creek St. Augustine, LLLP, No. 5D18-1656 (5th DCA Mar. 15, 2019)



Generally terms of a written contract – including an agreement to arbitrate – do not apply to non-signatories, but there are limited exceptions.  Such was the case where Silver Creek and an affiliate of AP Atl. signed a construction contract containing an arbitration provision.  When Silver Creek brought suit against it as to both performance and payment under the contract, AP Atl. moved to compel arbitration. The trial judge determined that the arbitration provision did not apply to non-signatories and denied the motion.  On appeal, the Fifth District reversed that decision finding that this was one of the rare circumstances where Florida law allows a non-signatory to enforce an arbitration provision against a signatory based upon the claims made against it when the claims relate directly to the contract and the signatory is relying on the contract to assert its claims against the non-signatory.







EXPERT TESTIMONY REJECTED



Gonzalez v. Citizens Prop. Ins. Corp., No. 3D17-2609, 2019 Fla. App. LEXIS 3813, at *10-11 (3d DCA Mar. 13, 2019)



Experts play a crucial role in many cases with courts and legislators attempting to place limits on their testimony through a variety of means.  In Gonzalez, two homeowners sued their insurance company for water damage to their home caused by a leak in the roof.  The issue in the lawsuit was whether the roof leak was caused by a wind storm event – which was covered by the insurance policy – or normal wear and tear – which was not covered.



Citizens presented the affidavit of a claims adjuster and the affidavit of a roofing contractor which attributed the roof leak to wear and tear due to age, not wind damage.  Both the adjuster and the contractor inspected the roof prior to its replacement.  In opposition to those affidavits, the homeowners submitted two affidavits of a registered engineer who opined that the home experienced high winds during the time in question and that strong wind and rain events over several days caused the openings in the roof leading to the leaks.



The trial judge considered the affidavits and ruled in favor of Citizens.  The Third District Court of Appeal affirmed that decision and pointed out several problems with the opinion of the homeowners’ expert.  Among other things, his contention that the leak in the roof on was created by strong wind and rain events that took place over a period of several days was based on his inspection of the subject roof. However, he did not inspect the “damage” until a year after the damaged roof was replaced.  Nevertheless he asserted that during his inspection, damage to the roof was observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge.



The Third District found that there was no basis for this opinion – “Unless there somehow occurred a suspension of the general laws of physics and common human experience, one cannot normally observe “damages to the roof” after a damaged roof was replaced.  As illustrated by this decision, courts need not blindly accept expert opinion especially where it lacks factually based reasoning and instead rests upon conjecture and surmise.







RETURN RECEIPT MEETS FIRST CLASS MAILING REQUIREMENT



MTGLQ Inv’rs, L.P. v. Davis, No. 4D18-1618 (4th DCA Mar. 20, 2019)



When providing notice pursuant to a contract it is critical to comply with the applicable notice requirements.  Florida’s Fourth District Court of Appeal recently clarified that items sent via the U.S. Mail with a return receipt meet the “first class” requirement.



In Davis, a bank sent a pre-suit default notice to a borrower via certified mail, and the notice was returned as “unclaimed”.  The bank filed a foreclosure suit which the judge dismissed because the pre-suit notice was not sent by “first-class mail” as required by the subject mortgage.  The judge did not believe that certified mail was the same thing as fist class mail and, therefore, found that the bank had not satisfied the pre-suit notice requirement.



The bank appealed to the Fourth District which reversed the judge because certified mail is “enhanced first-class mail.” Explaining that the evidence showed that the default notice was mailed via first class mail and there was nothing in the mortgage to suggest that adding a return receipt defeats first class mail status, the default notice was deemed to have been given to the borrower when mailed. Dismissal was accordingly improper.  This case illustrates the importance of complying with governing notice requirements and failure to do so may prevent an aggrieved party from obtaining relief.







Jed Frankel is a shareholder with Eisinger Law. He is a Florida Certified Circuit Mediator and is Board Certified in Condominium and Planned Development Law, as well as Civil Trial Law, by The Florida Bar. He focuses his practice on community association law, litigation and dispute resolution. He can be reached at jfrankel@eisingerlaw.com or 954-894-8000 x 301