Carbonell LLC v. North American Trading Group, Inc.

• Court: District Court of Appeal of Florida
• Decided: November 27, 2024
• Docket: 3D2024-1763
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 27, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-1763 Lower Tribunal No. 23-27173-CA-01 ________________

Carbonell LLC, Petitioner,

vs.

North American Trading Group, Inc., et al., Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Joseph Perkins, Judge.

Gunster, and Michael B. Green and Lawrence G. Horsburgh, for petitioner.

Law Offices of Damian G. Waldman, P.A., and Damian G. Waldman and Farha Ahmed (Largo); DeLuca Law Group, PLLC, and Kimberly George (Fort Lauderdale), for respondents.

Before SCALES, LINDSEY and BOKOR, JJ.

PER CURIAM. Carbonell, LLC, the successful bidder in a foreclosure sale, petitions

for certiorari relief from a trial court order denying its motion to intervene in

subsequent proceedings by the original owner to vacate the summary final

judgment of foreclosure. Because, under the circumstances present here,

Carbonell had the right to intervene to protect its ownership interest, the trial

court’s order barring Carbonell from participating in the hearing on the

original owner’s “Motion to Quash Service, Motion to Vacate and Set Aside

Final Judgment and Order of Default” departed from the essential

requirements of the law and cannot be remedied on appeal. Accordingly, we

grant the petition.

The cases cited by North American Trading Group, Inc., and the trial

court, in which the court finds no right to intervene, involve situations, unlike

here, where the purchaser has no right to intervene because it takes the

property subject to a preexisting “decree or judgment.” Intermediary Fin.

Corp. v. McKay, 111 So. 531, 532 (Fla. 1927). But the record reflects, and

Carbonell explains, that it didn’t purchase the property during some other

pending litigation or foreclosure proceeding, but rather was the winning

bidder at a foreclosure sale following entry of final judgment. None of the

cases cited stand for the proposition that the winning bidder, and now holder

of the certificate of title, lacks standing to defend its interest in the very

2 foreclosure proceedings that resulted in the sale. For example, Space Coast

Credit Union v. Goldman, 262 So. 3d 836, 838 (Fla. 3d DCA 2018), barred

intervention where the successful purchaser, Asset Recoveries, bought the

property while it was on notice that the property was subject to foreclosure

in a separate action to which it was a stranger. See also Tikhomirov v. Bank

of New York 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.” (emphasis added)); Andresix

Corp. v. Peoples Downtown Nat’l Bank, 419 So. 2d 1107, 1107 (Fla. 3d DCA

1982) (“[A] purchaser of property which was then the subject of a [pending]

mortgage foreclosure action and accompanying lis pendens by Peoples

Downtown National Bank, was not entitled to intervene in such action.”

(emphasis added)). In other words, Carbonell likely couldn’t intervene in

some separate foreclosure action or other pending litigation that impacts the

property at issue where a lis pendens has been filed, because its interest

would be subject to such determination, and it is a stranger to those actions.

But that’s not what’s happening here. Here, Carbonell seeks only to

preserve its ownership interest obtained through the foreclosure sale in this

action. Under the circumstances present here, Carbonell, as the winning

3 bidder, has standing to defend the foreclosure judgment that resulted in the

foreclosure sale at which it was the winning bidder. See Martin Props., Inc.

v. Fla. Indus. Inv. Corp., 833 So. 2d 825, 827 (Fla. 4th DCA 2002) (finding

third party purchaser at foreclosure sale had standing to challenge the

assignment of the mortgagor’s equitable right of redemption because if “the

assignment of the equity of redemption was not valid, MPI, as the successful

bidder at the foreclosure sale, will own the property”); Shlishey the Best, Inc.

v. CitiFinancial Equity Servs., Inc., 14 So. 3d 1271, 1273 (Fla. 2d DCA 2009)

(reversing trial court’s order setting aside the foreclosure sale and vacating

the certificate of title because third party purchaser at foreclosure sale “was

denied procedural due process” where the trial court entered such orders ex

parte without an opportunity for the third party purchaser to be heard).

Because the trial court should have permitted Carbonell’s intervention, we

grant the petition for certiorari and quash the order under review.

Petition granted; order quashed.