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FORMER UNIT OWNER ALLOWED TO CHALLENGE ASSESSMENTS
Real Estate Sols. Home Sellers, LLC v. Viera E. Golf Course Dist. Ass’n, Inc., 288 So. 3d 1228 (Fla. 5th DCA 2020), reh’g denied (Feb. 3, 2020)

An investor purchased a home in the Viera East Golf Course Community at a foreclosure auction and objected to assessments made against the home. The Association contended that its lien survived the foreclosure and that the investor was responsible for past due assessments, as well as penalties incurred by the previous owner. The investor eventually filed a declaratory judgment action challenging the amounts claimed by the Association.

After filing the lawsuit, the investor sold the home to a third party. The Association then filed a motion to dismiss the lawsuit claiming the investor no longer had standing because he no longer owned the subject property. The trial court judge agreed and dismissed the case. On appeal, the Fifth District reversed the dismissal, finding that the investor still had potential liability for the unpaid amounts which did not end with the sale of the property. The case was sent back to the trial judge to determine whether the investor had any liability for the assessments and other charges.


DEFAULT LETTER INSUFFICIENT TO PROVE MAILING
Ghani v. Deutsche Bank Nat’l Tr. Co. as Tr. for PFCA Home Equity Inv. Tr. Certificates, Series 2002-IFC2, 287 So. 3d 637, 638 (Fla. 4th DCA 2020)

In order to proceed with a foreclosure, a mortgage holder must comply with the material terms of the mortgage, which typically includes the mailing of a default letter. To prove notice of default, Deutsche Bank submitted an affidavit from an employee of one of the loan servicers attesting that the notice was made and attaching a copy of the default letter written by GMAC Mortgage. The court granted summary judgment in the bank’s favor.

The Fourth District Court of Appeal reviewed the case and held that the trial court improperly entered judgment in the bank’s favor. The affidavit was determined to be legally insufficient because it did not mention GMAC Mortgage (the entity responsible for the default letter) and did not contain information that might have shown the letter was in fact mailed, such as an explanation of GMAC’s general practice of mailing letters. The bank did not submit any other evidence to establish the letter was mailed, and the letter itself was insufficient. Given the lack of evidence, Deutsche Bank failed to prove the required notice of default was mailed and failed to prove compliance with a condition precedent to foreclosure.

JUDGMENT FOR INSURER REVERSED
Rodriguez v. Avatar Prop. & Cas. Ins. Co., 45 Fla. L. Weekly D128 (Fla. 2d DCA Jan. 15, 2020)

In response to a lawsuit filed by an insured homeowner for a loss caused by a water discharge in a bathroom, the insurance company filed two motions for summary judgment, one claiming the homeowner failed to satisfy certain post-loss contractual obligations. The judge granted both motions and entered judgment in the insurance company’s favor.

The homeowner appealed. Florida’s Second District Court of Appeal considered the appeal and found that the affidavit upon which the judge had based his rulings was insufficient to support a summary judgment. Although 37 pages long, the affidavit essentially restated – almost verbatim – the allegations in the motions seeking summary judgment. Among other problems with the affidavit, it did not identify the duties or title of the “duly authorized corporate representative” who provided it, state that it was made on personal knowledge, or address whether the affiant possessed any relevant skill sets or experience. The affidavit failed to demonstrate personal knowledge or competency and contained unsupported opinions and conclusions of fact and law.

Accordingly, the case was remanded for further proceedings.

ASSOCIATION WITHOUT AUTHORTY TO SCREEN UNIT TRANSFERS
Cool Spaze, LLC v. Boca View Condo. Ass’n, Inc., 45 Fla. L. Weekly D165 (Fla. 4th DCA Jan. 22, 2020)

An investor bought a condominium unit and then transferred title to his limited liability company for purposes of leasing it. He submitted two lease applications to the association. The association denied both applications because the unit had been conveyed to the LLC without its approval and notified the investor that it would not approve any applications until the title was transferred back to the investor in his individual capacity.

The LLC sued the Association. The Fourth District Court ruled in favor of the investor because the Association’s governing documents authorized approval of all leases, subleases, or other occupation of a unit – but did not require the association approve unit transfers, title transfers or sales. Courts construe association documents strictly, and, as such, those documents must contain language that authorize the association to take certain actions or grant the association certain powers.

BUSINESS JUDGMENT RULE PROTECTS ASSOCIATION                                           Royal Harbour Yacht Club Marina Condo. Ass’n, Inc., Appellant, v. Frank A. Maresma, etc., Appellee., 3D19-0136, 2020 WL 1281089, at *2 (Fla. 3d DCA Mar. 18, 2020)

After his application to install a boat lift was denied, a unit owner sued his association claiming that the decision was “unreasonable, arbitrary, and capricious.” The association denied the owner’s claims and asserted that denial of the application was shielded from judicial review by the business judgment rule. According to the association, the proposed lift would create a disharmonious appearance in the marina and obstruct the views of other residents.

The trial judge entered summary judgment in favor of the owner because boat lifts already installed in the marina resulted in a disharmonious appearance. The association appealed and the Third District Court of Appeal, reversed the judge’s decision and ordered him to further consider the business judgment rule. In the association context the business judgment rule recognizes that directors – in most cases – are more qualified to make business decisions than are judges and that a decision within the scope of the association’s authority that is reasonable and not arbitrary, capricious, or in bad faith should not be overturned.

Jed Frankel is a shareholder with Eisinger, Brown, Lewis, Frankel & Chaiet, P.A. 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.

Eisinger, Brown, Lewis, Frankel & Chaiet, P.A., is a full-service Florida law firm focusing on community association law, real estate law, developer representation, commercial litigation and insurance law. Visit eisingerlaw.com