Third District Court of Appeal StateofFlorida
Opinion filed June 4, 2025. Not final until disposition of timely filed motion for rehearing.
No. 3D24-2004 Lower Tribunal No. 20-17725-CA-01
American Mortgage Solutions, LLC, Petitioner,
vs.
Fresh Brix Properties, LLC, et al., Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Ariana Fajardo Orshan, Judge.
Charles R. Pinson (Tampa), for petitioner.
Martin A. Zucker, P.A., and Martin A. Zucker (Boca Raton), for respondent Yosef Sason.
Before EMAS, FERNANDEZ and BOKOR, JJ.
PER CURIAM. In this mortgage foreclosure action, American Mortgage Solutions, LLC
(“American Mortgage”), plaintiff below, petitions this Court for a writ of
certiorari to quash four post-judgment orders entered by the trial court: (1)
order cancelling foreclosure sale (October 17, 2024); (2) case management
order (October 22, 2024); (3) order granting intervenor Yosef Sason’s motion
to intervene (November 6, 2024); and (4) order setting aside the final
judgment.1 We find that the trial court departed from the essential
requirements of law in granting post-judgment intervention. Accordingly, we
grant the amended petition for writ of certiorari in part and quash the
November 6, 2024, order that grants intervention.
I. Factual Background
In 2020, WRCOF Asset Trust 2017-2 (“WRCOF Trust”) filed a
complaint against Fresh Brix Properties, LLC (the “Borrower”), Viktoriia
Moskalenko, Dmytro Tkachenko, Ihor Sirenko,2 and several other parties,
1 The appendices do not include an order setting aside the final judgment, as such there is no such order for this Court to review. See O’Bourke v. Luis Arbelaez, 349 So. 3d 320, 320 (Fla. 3d DCA 2021) (denying a petition for writ of prohibition in part because “there is no order of the trial court for this Court to review”). Because there is no order to review, the petition is denied as to the purported order setting aside the final judgment. 2 Per the complaint, Moskalenko, Tkachenko, and Sirenko “may claim some right or interest in the [p]roperty sought herein to be foreclosed by virtue of a Quit Claim Deed recorded . . . however, said interest is subordinate, junior, and inferior to the lien of [WRCOF Trust’s Mortgage].”
2 seeking, inter alia, to foreclose a mortgage on a condominium unit. WRCOF
Trust also filed a notice of lis pendens on the property. The complaint alleged
Borrower defaulted under a promissory note and mortgage.
Borrower failed to respond to the complaint, and a clerk’s default was
entered. Then, American Mortgage moved to be substituted for WRCOF
Trust as plaintiff, alleging WRCOF Trust had conveyed its interest to
American Mortgage. Subsequently, Moskalenko, Sirenko, and Tkachenko
filed notices of their intention to waive all defenses and rights in this
proceeding. Thereafter, American Mortgage moved for summary final
judgment and for judicial default against Borrower.
On October 20, 2023, the trial court granted the motion for judicial
default against Borrower and entered final judgment of foreclosure.
American Mortgage timely moved to amend the final judgment and to
substitute party, pursuant to rule 1.540. The trial court granted the motion
and entered an amended judgment. Thereafter, the trial court entered a
second amended judgment which set the sale of the property for August 12,
2024.
Prior to the sale, on June 25, 2024, Sason filed a motion to set aside
the amended final judgment and to cancel the sale. In his motion, Sason
alleged he was the successful bidder in a March 5, 2024, foreclosure sale
3 (relating to a separate case: Case No. 2024-000023-CA-01), and attached
an amended certificate of title to his motion, reflecting he purchased the
property on March 8, 2024. Sason also claimed to be the subrogee of
Sirenko, Moskalenko, and Tkachenko and acknowledged that his “interest is
inferior to [American Mortgage’s].
American Mortgage objected to Sason’s motion, arguing Sason is
merely a non-party that has not moved to intervene, and that he purchased
the property after the final judgment had been entered. In response, Sason
then filed a motion to intervene, pursuant to Florida Rule of Civil Procedure
1.230. American Mortgage opposed the motion, arguing that Sason, as a
post-lis pendens purchaser, “ha[d] no rights in the property at the time the
litigation commenced and purchased the property subject to and bound by
any judgment rendered in this foreclosure action,” and has no standing to
intervene.
Before the trial court ruled on Sason’s motions, the foreclosure sale
was rescheduled for October 21, 2024. Sason then moved to cancel the
foreclosure sale, citing the pending motion to set aside. Thereafter, the trial
court cancelled the foreclosure sale and noted that it would be rescheduled
following the hearing on the motion to set aside.
4 A hearing took place on October 22, 2024, after which the trial court
entered a case management order and granted Sason’s motion to intervene.
This Petition followed.
II. Standard of Review
“To prevail in its petition for writ of certiorari, a party must demonstrate
that the contested order constitutes (1) a departure from the essential
requirements of the law, (2) resulting in material injury for the remainder of
the case, (3) that cannot be corrected on post-judgment appeal.” Greater
Miami Expressway Agency v. Miami-Dade Cnty. Expressway Auth., 393 So.
3d 794, 795 (Fla. 3d DCA 2024) (quoting Damsky v. Univ. of Miami, 152 So.
3d 789, 792 (Fla. 3d DCA 2014)).
III. Analysis
While Florida Rule of Civil Procedure 1.230 permits pre-judgment
intervention, post-judgment intervention is generally not allowed. See Fla. R.
Civ. P. 1.230 (“Anyone claiming an interest in pending litigation may at any
time be permitted to assert a right by intervention, but the intervention shall
be in subordination to, and in recognition of, the propriety of the main
proceeding, unless otherwise ordered by the court in its discretion.”); Neon
Invs., LLC v. Afina Pallada, Inc., 299 So. 3d 45, 47 (Fla. 4th DCA 2020)
5 (“Post-judgment intervention generally is not allowed.” (citing Dickinson v.
Segal, 219 So. 2d 435, 436 (Fla. 1969))).
Here, Sason first moved to intervene months after the trial court
entered final judgment of foreclosure. Thus, the trial court departed from the
essential requirements of the law in granting his post-judgment motion to
intervene. See Neon Invs., 299 So. 3d at 47 (“The trial court departed from
the essential requirements of law by allowing this post-judgment
intervention[.]”).
Further, Sason purchased3 the property, after the instant foreclosure
action began and after WRCOF Trust filed a notice of lis pendens. A post-lis
pendens purchaser is not entitled to intervene. See Tikhomirov v. Bank of
N.Y. Mellon, 223 So. 3d 1112, 1114 (Fla. 3d DCA 2017) (“It is well established
that a purchaser of property that is the subject of a pending foreclosure action
is not entitled to intervene in the foreclosure action where a notice of lis
pendens has been recorded.” (citing Andresix Corp. v. Peoples Downtown
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Third District Court of Appeal StateofFlorida
Opinion filed June 4, 2025. Not final until disposition of timely filed motion for rehearing.
No. 3D24-2004 Lower Tribunal No. 20-17725-CA-01
American Mortgage Solutions, LLC, Petitioner,
vs.
Fresh Brix Properties, LLC, et al., Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Ariana Fajardo Orshan, Judge.
Charles R. Pinson (Tampa), for petitioner.
Martin A. Zucker, P.A., and Martin A. Zucker (Boca Raton), for respondent Yosef Sason.
Before EMAS, FERNANDEZ and BOKOR, JJ.
PER CURIAM. In this mortgage foreclosure action, American Mortgage Solutions, LLC
(“American Mortgage”), plaintiff below, petitions this Court for a writ of
certiorari to quash four post-judgment orders entered by the trial court: (1)
order cancelling foreclosure sale (October 17, 2024); (2) case management
order (October 22, 2024); (3) order granting intervenor Yosef Sason’s motion
to intervene (November 6, 2024); and (4) order setting aside the final
judgment.1 We find that the trial court departed from the essential
requirements of law in granting post-judgment intervention. Accordingly, we
grant the amended petition for writ of certiorari in part and quash the
November 6, 2024, order that grants intervention.
I. Factual Background
In 2020, WRCOF Asset Trust 2017-2 (“WRCOF Trust”) filed a
complaint against Fresh Brix Properties, LLC (the “Borrower”), Viktoriia
Moskalenko, Dmytro Tkachenko, Ihor Sirenko,2 and several other parties,
1 The appendices do not include an order setting aside the final judgment, as such there is no such order for this Court to review. See O’Bourke v. Luis Arbelaez, 349 So. 3d 320, 320 (Fla. 3d DCA 2021) (denying a petition for writ of prohibition in part because “there is no order of the trial court for this Court to review”). Because there is no order to review, the petition is denied as to the purported order setting aside the final judgment. 2 Per the complaint, Moskalenko, Tkachenko, and Sirenko “may claim some right or interest in the [p]roperty sought herein to be foreclosed by virtue of a Quit Claim Deed recorded . . . however, said interest is subordinate, junior, and inferior to the lien of [WRCOF Trust’s Mortgage].”
2 seeking, inter alia, to foreclose a mortgage on a condominium unit. WRCOF
Trust also filed a notice of lis pendens on the property. The complaint alleged
Borrower defaulted under a promissory note and mortgage.
Borrower failed to respond to the complaint, and a clerk’s default was
entered. Then, American Mortgage moved to be substituted for WRCOF
Trust as plaintiff, alleging WRCOF Trust had conveyed its interest to
American Mortgage. Subsequently, Moskalenko, Sirenko, and Tkachenko
filed notices of their intention to waive all defenses and rights in this
proceeding. Thereafter, American Mortgage moved for summary final
judgment and for judicial default against Borrower.
On October 20, 2023, the trial court granted the motion for judicial
default against Borrower and entered final judgment of foreclosure.
American Mortgage timely moved to amend the final judgment and to
substitute party, pursuant to rule 1.540. The trial court granted the motion
and entered an amended judgment. Thereafter, the trial court entered a
second amended judgment which set the sale of the property for August 12,
2024.
Prior to the sale, on June 25, 2024, Sason filed a motion to set aside
the amended final judgment and to cancel the sale. In his motion, Sason
alleged he was the successful bidder in a March 5, 2024, foreclosure sale
3 (relating to a separate case: Case No. 2024-000023-CA-01), and attached
an amended certificate of title to his motion, reflecting he purchased the
property on March 8, 2024. Sason also claimed to be the subrogee of
Sirenko, Moskalenko, and Tkachenko and acknowledged that his “interest is
inferior to [American Mortgage’s].
American Mortgage objected to Sason’s motion, arguing Sason is
merely a non-party that has not moved to intervene, and that he purchased
the property after the final judgment had been entered. In response, Sason
then filed a motion to intervene, pursuant to Florida Rule of Civil Procedure
1.230. American Mortgage opposed the motion, arguing that Sason, as a
post-lis pendens purchaser, “ha[d] no rights in the property at the time the
litigation commenced and purchased the property subject to and bound by
any judgment rendered in this foreclosure action,” and has no standing to
intervene.
Before the trial court ruled on Sason’s motions, the foreclosure sale
was rescheduled for October 21, 2024. Sason then moved to cancel the
foreclosure sale, citing the pending motion to set aside. Thereafter, the trial
court cancelled the foreclosure sale and noted that it would be rescheduled
following the hearing on the motion to set aside.
4 A hearing took place on October 22, 2024, after which the trial court
entered a case management order and granted Sason’s motion to intervene.
This Petition followed.
II. Standard of Review
“To prevail in its petition for writ of certiorari, a party must demonstrate
that the contested order constitutes (1) a departure from the essential
requirements of the law, (2) resulting in material injury for the remainder of
the case, (3) that cannot be corrected on post-judgment appeal.” Greater
Miami Expressway Agency v. Miami-Dade Cnty. Expressway Auth., 393 So.
3d 794, 795 (Fla. 3d DCA 2024) (quoting Damsky v. Univ. of Miami, 152 So.
3d 789, 792 (Fla. 3d DCA 2014)).
III. Analysis
While Florida Rule of Civil Procedure 1.230 permits pre-judgment
intervention, post-judgment intervention is generally not allowed. See Fla. R.
Civ. P. 1.230 (“Anyone claiming an interest in pending litigation may at any
time be permitted to assert a right by intervention, but the intervention shall
be in subordination to, and in recognition of, the propriety of the main
proceeding, unless otherwise ordered by the court in its discretion.”); Neon
Invs., LLC v. Afina Pallada, Inc., 299 So. 3d 45, 47 (Fla. 4th DCA 2020)
5 (“Post-judgment intervention generally is not allowed.” (citing Dickinson v.
Segal, 219 So. 2d 435, 436 (Fla. 1969))).
Here, Sason first moved to intervene months after the trial court
entered final judgment of foreclosure. Thus, the trial court departed from the
essential requirements of the law in granting his post-judgment motion to
intervene. See Neon Invs., 299 So. 3d at 47 (“The trial court departed from
the essential requirements of law by allowing this post-judgment
intervention[.]”).
Further, Sason purchased3 the property, after the instant foreclosure
action began and after WRCOF Trust filed a notice of lis pendens. A post-lis
pendens purchaser is not entitled to intervene. See Tikhomirov v. Bank of
N.Y. Mellon, 223 So. 3d 1112, 1114 (Fla. 3d DCA 2017) (“It is well established
that a purchaser of property that is the subject of a pending foreclosure action
is not entitled to intervene in the foreclosure action where a notice of lis
pendens has been recorded.” (citing Andresix Corp. v. Peoples Downtown
Nat'l Bank, 419 So. 2d 1107, 1107 (Fla. 3d DCA 1982)); Bymel v. Bank of
America, N.A., 159 So. 3d 345, 347 (Fla. 3d DCA 2015) (“[W]hen property is
3 He purchased the property as a result of another, separate action. Thus, Carbonell LLC v. North American Trading Group, Inc., 49 Fla. L. Weekly D2384 (Fla. 3d DCA Nov. 27, 2024) does not apply.
6 purchased during a pending foreclosure action 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.”); Carlisle v. U.S. Bank, Nat’l Ass’n for Harborview 2005-
10 Tr. Fund, 225 So. 3d 893, 895-96 (Fla. 3d DCA 2017) (distinguishing from
Pearlman v. Pearlman, 405 So. 2d 764 (Fla. 3d DCA 1981) and holding that
the general rule—a purchaser post-lis pendens is “not entitled to intervene
in a pending foreclosure action”—applied).
Because a post-lis pendens purchaser is not entitled to intervene,
Florida appellate courts have found orders granting a post-lis pendens
purchaser’s post-judgment motion for intervention to warrant certiorari relief.
See also Federal Nat’l Mortg. Ass’n v. Gallant, 211 So. 3d 1055, 1059 (Fla.
4th DCA 2017) (holding that an order granting post-judgment intervention
“causes material harm because [the party seeking to foreclose] is being
prevented from resolving th[e] case, in which a . . . final judgment was
entered[.]” and granting a petition for writ of certiorari of an order granting a
post-judgment motion to intervene and stay the proceedings); LIV I LLC v.
Regions Bank, 310 So. 3d 1136, 1139 (Fla. 2d DCA 2021) (holding “post[-
]judgment orders granting intervention may result in irreparable harm if they
7 stay execution of a final judgment” and granting a petition for writ of certiorari
of an order granting intervention).
Under these circumstances, we conclude that the trial court departed
from the essential requirements of law in granting post-judgment
intervention. Accordingly, we grant the amended petition for writ of certiorari
in part, and quash the November 6, 2024, order that grants intervention.
Petition granted, in part; order quashed.