Beltway Capital, LLC v. Greens COA, Inc.

153 So. 3d 330, 2014 Fla. App. LEXIS 19783, 2014 WL 6834331
CourtDistrict Court of Appeal of Florida
DecidedDecember 5, 2014
DocketNo. 5D13-3148
StatusPublished
Cited by11 cases

This text of 153 So. 3d 330 (Beltway Capital, LLC v. Greens COA, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beltway Capital, LLC v. Greens COA, Inc., 153 So. 3d 330, 2014 Fla. App. LEXIS 19783, 2014 WL 6834331 (Fla. Ct. App. 2014).

Opinion

LAWSON, J.

In this foreclosure case, plaintiff Beltway Capital, LLC (“Beltway”) appeals from an “Order Granting Defendant’s Motion to Determine Amounts Due,” finding that Beltway could not seek safe harbor under section 718.116(l)(b), Florida Statutes (2013). This statute limits the liability of “a first mortgagee or its successor or assignees” who acquire title to a condominium unit by foreclosure for unpaid association assessments due before acquisition of title to the lesser of twelve months of assessments or one percent of the original mortgage debt. Instead, the lower court found Beltway liable for all past due assessments because it was not the “original lender” or its successor or assignee. Beltway was not a direct assignee of the original lender.

On appeal, Beltway claims the statute affords safe harbor to “all subsequent assignees of the first mortgage holder,” not just the first assignee. The condo association, The Greens COA, LLC (“The Greens”), argues that safe harbor is limited to “first mortgagee or its ... assignee,” which does not include Beltway because it was not a direct assignee of the original lender. Both the trial court and The Greens erroneously equate the terms “first mortgagee” with “original lender.” The former term is broader than the latter because the word “first” refers to first in priority, not first in time. Thus, a first mortgagee is simply one who owns and holds the note or first mortgage. Beltway is a first mortgagee and is therefore entitled to safe harbor. Accordingly, and for reasons further explained below, we reverse and remand for further proceedings.

Facts and Proceedings Below

In December 2011, Beltway filed a complaint to foreclose a mortgage on a condo unit against the unit owner, Michael Hei-bel, and his condo association, The Greens. Beltway alleged that: (i) in 2006, Heibel delivered a mortgage on the unit to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for First National Bank of Arizona; (ii) in 2011, MERS assigned the mortgage to GMAC Mortgage, LLC (“GMAC”); and (iii) GMAC subsequently assigned the mortgage to Beltway, Copies of the assignments were attached to the complaint. The Greens filed an answer and affirmative defenses asserting that Beltway would be liable for unpaid condo association assessments under section 718.116(1), Florida Statutes (2011).

Heibel defaulted. Beltway obtained a Final Judgment of Foreclosure and purchased the home at a foreclosure sale. The Greens filed a motion to determine the amounts it was due, specifically seeking a determination of whether Beltway was entitled to safe harbor under section 718.116(l)(b) as a first mortgagee or a subsequent holder of the first mortgage. Following a hearing on the motion, the trial court entered an “Order Granting Defendant’s Motion to Determine Amounts Due,” finding as follows:

2. Section 718.116(l)(b), Florida Statutes, only includes the original lender, the lender’s successor, and the lender’s [332]*332assignee as parties qualifying for the narrow liability exception.
3. The Plaintiff, Beltway Capital, LLC, is the assignee of the assignee and does not qualify for the liability exception.
4. The Plaintiff has failed to pay any amounts due, including amounts coming due before and after issuance of the Certifícate of Title on or about May 12, 2012.
5. The Plaintiff is subject to the requirements of section 718.116(l)(a), Florida Statutes.
6. The Defendant is entitled to recover reasonable attorney’s fees in litigating this action. The court reserves jurisdiction to determine the amount pending an evidentiary proceeding, if necessary.

Beltway timely appealed, asserting that the above order was final.

After the appeal was perfected, this court issued an order to show cause as to why it should not be dismissed for lack of an appealable order. Because the order did not determine the actual amounts due, it contemplated further judicial labor and was therefore not a final order nor an appealable non-final order. The parties responded and improperly attempted to stipulate that this court had jurisdiction. See, e.g., Polk Cnty. v. Sofka, 702 So.2d 1243, 1245 (Fla.1997) (holding that parties cannot confer subject matter jurisdiction on district court where none exists). This court relinquished jurisdiction for forty-five days to allow the lower court to enter a final appealable order. On November 4, the lower court entered a final judgment, giving this court jurisdiction to review the issue.

Standard of Review

A trial court’s interpretation of a statute presents a pure issue of law subject to de novo review on appeal. Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009); Kasischke v. State, 991 So.2d 803, 807 (Fla.2008).

Merits

Section 718.116(l)(a), Florida Statutes (2012), part of the Condominium Act, not only makes a condominium unit owner liable for association assessments that come due while he or she is the owner, but also makes the unit owner jointly and severally liable with the previous owner for all unpaid assessments that came due before transfer of title. Subsection (l)(b) carves out a safe harbor provision, however, by limiting the liability of a “first mortgagee or its successor or assignees” who acquire title by foreclosure, or a deed in lieu of foreclosure, to the lesser of those common expenses and regular assessments that came due in the twelve months preceding acquisition of title or one percent of the original mortgage debt. See also Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n, 895 So.2d 1197, 1197 (Fla. 3d DCA 2005) (noting that section 718.116(1) is a “safe harbor provision” that “provides a statutory cap on liability of foreclosing mortgagees for unpaid condominium assessments that become due prior to the first mortgagee’s acquisition of title pursuant to a foreclosure proceeding”).1 Subsection (l)(g) further states that: “For purposes of this subsection, the term ‘successor or assignee’ as used with respect to a first mortgagee includes only a subsequent holder of the first mortgage.”

[333]*333The issue of statutory construction before this court — whether the safe harbor provision protects entities such as Beltway, which have not taken title from the original lender — appears to be one of first impression in Florida’s appellate courts. The trial court construed the provision granting safe harbor to the “first mortgagee or its successor or assignees” as meaning “the original lender, the lender’s successor, and the lender’s assignee.” Beltway claims that the plural term “assignees” includes “all subsequent assignees of the first mortgage holder,” not just the first assignee. The Greens essentially adopts the trial court’s construction, arguing that safe harbor is limited to “first mortgagee or its ... assignee,” which does not include Beltway because it was not a direct assignee of the original lender.

Beltway correctly notes that the first fatal flaw in both the trial court and The Greens’ construction of the statute is their equation of “first mortgagee” with “original lender.” Neither section 718.116 nor any other part of the Condominium Act define the term “first mortgagee.” Black’s Law Dictionary defines the term “first mortgage” as “[a] mortgage that is senior to all other mortgages on the same property.” Black’s Law Dictionary 1102 (9th ed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

B.D. and T.D. v. C.D.
District Court of Appeal of Florida, 2025
Fed. Nat'l Mortg. Ass'n v. JKM Servs., LLC
256 So. 3d 961 (District Court of Appeal of Florida, 2018)
Federal National Mortgage Assoc. v. Jkm Services
District Court of Appeal of Florida, 2018
Hemingway Villa Condo Owners Assoc., Inc. v. Wells Fargo Bank
240 So. 3d 104 (District Court of Appeal of Florida, 2018)
San Matera the Gardens Condominium Ass'n v. Federal Home Loan Mortgage Corp.
207 So. 3d 1017 (District Court of Appeal of Florida, 2017)
PNC Bank, National Ass'n v. Inlet Village Condominium Ass'n
204 So. 3d 97 (District Court of Appeal of Florida, 2016)
Brittany's Place Condominium Association, Inc. v. U.S. Bank, N.A.
205 So. 3d 794 (District Court of Appeal of Florida, 2016)
Federal National Mortgage Ass'n v. Legacy Parc Condominium Ass'n
177 So. 3d 92 (District Court of Appeal of Florida, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
153 So. 3d 330, 2014 Fla. App. LEXIS 19783, 2014 WL 6834331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beltway-capital-llc-v-greens-coa-inc-fladistctapp-2014.