VILLAS OF WINDMILL POINT II PROPERTY OWNERS' ASSOCIATION, INC., Appellant,
NATIONSTAR MORTGAGE, LLC, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Janet C. Croom, Judge; L.T. Case No.
D. Sosa of the Law Office of Jose D. Sosa, P.C., North Palm
Beach, for appellant.
S. Ben-Hamo and Steven B. Greenfield of the Greenfield Law
Group, P.A., Boca Raton, for appellee.
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.
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.
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.
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
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.
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).
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.
720.3085(2), Florida Statutes (2011), governs a parcel
owner's liability for assessments imposed by a
(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 ...