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Inc. v. Nationstar Mortgage, LLC

Florida Court of Appeals, Fourth District

October 25, 2017

VILLAS OF WINDMILL POINT II PROPERTY OWNERS' ASSOCIATION, INC., Appellant,
v.
NATIONSTAR MORTGAGE, LLC, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Janet C. Croom, Judge; L.T. Case No. 2013CA000201.

          Jose D. Sosa of the Law Office of Jose D. Sosa, P.C., North Palm Beach, for appellant.

          Avri S. Ben-Hamo and Steven B. Greenfield of the Greenfield Law Group, P.A., Boca Raton, for appellee.

          TAYLOR, J.

         A property owners' association, Villas of Windmill Point II (the "Association" or the "Villas Association"), appeals a final judgment concerning a property owner's liability for assessments under section 720.3085(2), Florida Statutes (2011). We affirm the final summary judgment and hold that, although the current parcel owner did not directly qualify for the safe harbor provision under section 720.3085(2)(c), it did indirectly benefit from the safe harbor provision because, under section 720.3085(2)(b), it was jointly and severally liable with the prior parcel owner for all unpaid assessments due up to the time of transfer of title, and the prior parcel owner did qualify for the safe harbor provision. However, we remand for the trial court to make certain corrections to the final judgment consistent with this opinion.

         Fannie Mae currently owns a parcel of real property that is part of the Villas Association. A mortgage was recorded on the property in 2005 in the amount of $103, 600. CitiMortgage later became the holder of the mortgage, which was the first mortgage on the property. CitiMortgage filed a mortgage foreclosure complaint against multiple defendants, including the borrower and the Association. A foreclosure judgment was entered in favor of CitiMortgage. Following a foreclosure sale, CitiMortgage took title to the property. CitiMortgage deeded the property to Fannie Mae in 2011.

         A dispute arose over whether Fannie Mae was entitled to the protection of the safe harbor provision of section 720.3085(2)(c), Florida Statutes, which limits the liability of a first mortgage holder for unpaid assessments. Fannie Mae's agent, Nationstar, filed suit against the Association, asserting three counts in its amended complaint: Count I - an action to compel the Association's compliance with the safe harbor provision of section 720.3085(2)(c), Florida Statutes; Count II - an action for declaratory relief; and Count III - an action for damages.

         Nationstar eventually moved for summary judgment on Counts I and II. The Association filed an affidavit in response to the motion for summary judgment, but the affidavit essentially consisted of legal conclusions concerning the applicability of the safe harbor provision of section 720.3085(2)(c). At Nationstar's request, the trial court took judicial notice of the court file in CitiMortgage's mortgage foreclosure action.

         After a hearing on the motion, the trial court granted summary judgment and entered a final judgment in favor of Nationstar as to Counts I and II. The court ruled that "Fannie Mae's liability to [the Association] is limited to 1% of the original mortgage $1, 306.00, plus any monthly assessments which accrued after CitiMortgage, Inc. took title." Nationstar voluntarily dismissed Count III, and the Association now appeals the final judgment.

         The standard of review of an order granting summary judgment is de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

         On appeal, the Association's primary argument is that Fannie Mae was not entitled to the safe harbor provision of section 720.3085(2)(c) because it was not a first mortgagee (or its successor or assignee) that acquired title to the parcel by foreclosure or by deed in lieu of foreclosure.

         Section 720.3085(2), Florida Statutes (2011), governs a parcel owner's liability for assessments imposed by a homeowners' association:

(2)(a) A parcel owner, regardless of how his or her title to property has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments that come ...

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