FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Collier County; Daniel R. Monaco, Senior Judge.
M. Wallace of Akerman LLP, Tallahassee; William P. Heller of
Akerman LLP, Fort Lauderdale; and Joseph S. Troendle of
Akerman LLP, Jacksonville, for Appellant.
A. Beatty of Henderson, Franklin, Starnes & Holt, P.A.,
Bonita Springs, for Appellees, Ronald and Susan Weiler.
appearance for remaining Appellees.
Mortgage, LLC (Nationstar), a third-party intervenor in a
mortgage foreclosure action, appeals from the trial
court's order denying its motion to vacate the
certificate of title, certificate of sale, and final judgment
of foreclosure. Because the trial court violated
Nationstar's due process rights by hearing and
determining matters that were not the subject of appropriate
notice, we reverse and remand for further proceedings.
issues in this appeal arose out of Nationstar's
postjudgment intervention in a mortgage foreclosure action.
In July 2014, MIPC, LLC (MIPC), filed the underlying
foreclosure action against the original mortgagors and other
interested parties. On December 4, 2014, the trial court
entered a final judgment of foreclosure in favor of MIPC. The
real property was subsequently sold at a foreclosure sale in
January 2015 to Ted Hofferber, as Trustee of the 380 Seaview
Court #1909 Trust (Hofferber Trustee). Over five months later
in June 2015, Hofferber Trustee sold the property to Ronald
and Susan Weiler (the Weilers).
November 4, 2015, Nationstar filed a motion to intervene in
MIPC's foreclosure action, as well as a motion to vacate
the certificate of title, the certificate of sale, and the
final judgment of foreclosure (motion to vacate). Nationstar
argued that it was entitled to intervene because it was the
holder of the original note, the first mortgagee, and an
indispensable party to the proceedings. In its motion to
vacate, Nationstar argued that the certificates of title and
sale and the final judgment of foreclosure should be vacated
because MIPC never surrendered the original promissory note
for filing in the court file.
February 12, 2016, the trial court entered an order granting
Nationstar's motion to intervene and scheduling
Nationstar's motion to vacate for an evidentiary hearing.
In its order, the trial court provided notice of the hearing
by stating that Nationstar's motion to vacate was
"scheduled for an evidentiary hearing on March 4,
2016." The order was served upon the Weilers, who were
nonparties to the action.
hearing, Nationstar, MIPC, and the Weilers were all
represented by counsel. Nationstar argued that the final
judgment entered in favor of MIPC was void as a matter of law
because MIPC never produced or surrendered the original note.
Nationstar further asserted that it was the holder of the
original note and had brought in a witness to testify to its
chain of possession. Upon further inquiry, the trial court
confirmed that the note was not in the court file. In
response, MIPC's counsel stated that he
"thought" that MIPC had filed the original note,
but he was "apparently" mistaken. As a result, MIPC
did not object to Nationstar's motion.
the Weilers objected to Nationstar's motion on two
different grounds. First, the Weilers argued that section
48.23, Florida Statutes (2014) (the notice of lis pendens
statute), discharged Nationstar's unrecorded interest and
lien. Second, the Weilers argued that their title to the
property was "unassailable" because they were bona
fide purchasers of the property. In support of their second
argument, counsel for the Weilers submitted an affidavit from
Mr. Weiler for the trial court's consideration. The
affidavit reflected that the Weilers had purchased the
property from and had no previous relationship with Hofferber
Trustee. The affidavit further reflected that the Weilers had
received no notice of either Nationstar's foreclosure
claim before the sale or any defects regarding the
objected on the ground that the Weilers could not introduce
the affidavit into evidence or, for that matter, make any
arguments at the hearing because of their status as
nonparties to the litigation. However, the trial court
overruled the objection, admitted the affidavit into
evidence, and allowed the Weilers to make their arguments.
Over a month later, on May 9, 2016, the trial court entered
its order denying Nationstar's motion to vacate. Relying
upon the court records, the trial court ruled that section
48.23 "forever barred" Nationstar's interest in
the property. The trial court reasoned that Nationstar not
only failed to timely intervene in MIPC's foreclosure
action, but also failed to record its interest before MIPC
filed its notice of lis pendens. The trial court ruled
further that ...