United States District Court, S.D. Florida
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT,
S & J PROPERTY HOLDINGS' MOTION TO DISCHARGE LIS
PENDENS OR, IN THE ALTERNATIVE. REQUIRE PLAINTIFFS TO POST A
BOND [DE 77]
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court upon Defendant, S & J
Property Holdings' ("Defendant") Motion to
Discharge Lis Pendens or, in the Alternative, Require
Plaintiff to Post a Bond ("Motion") [DE 77].
Plaintiff, Dietmar Dude ("Plaintiff), filed a Response
[DE 90], and Defendant filed a Reply [DE 100]. This matter
was referred to the undersigned by United States District
Judge Kenneth A. Marra for appropriate disposition.
See DE 82. The undersigned held an evidentiary
hearing on December 12, 2017. This matter is now ripe for
is moving under section 48.23, Florida Statutes, and Local
Rule 7.1 to discharge the Notice of Lis Pendens ("Lis
Pendens") filed and recorded by Plaintiff. [DE 77]. In
the alternative, Defendant is moving to require Plaintiff to
post a bond in an amount in excess of $ 1.6 million in
support of the Lis Pendens. Id. Plaintiff, on the
other hand, requests that the Lis Pendens be extended through
trial. [DE 90]. Plaintiff also argues that the law requires a
bond be considered, but does not require that a bond actually
be imposed. Id.
undersigned held an evidentiary hearing on December 12, 2017.
Defendant called Lawrence W. Smith, Esq., as its sole witness
to establish the amount of the bond that Plaintiff should be
required to post. Mr. Smith, an attorney with Gary, Dytrych
& Ryan, P.A., testified that he represented Defendant in
May and June of 2016, prior to Plaintiffs filing of the Lis
Pendens, with regard to a financial transaction. Mr. Smith
was instructed to use two properties-the first of which is
the three parcels that Defendant purchased from Congress
Plaza in October 2012 and the second of which is a property
unrelated to this case and owned by an entity other than
Defendant-to secure a single loan on behalf of
Defendant's owner, John Staluppi. The deal was for a
total loan of $6, 095 million.
Smith further testified that, in February 2016, he received
handwritten correspondence from Dietmar Dude asserting a
claim on the three parcels purchased from Congress Plaza. Mr.
Dude did not mention any unrecorded mortgage. Mr. Smith
received a second letter from Mr. Dude's attorney also
asserting a claim to the three parcels purchased from
Congress Plaza on Mr. Dude's behalf, but similarly with
no mention of any unrecorded mortgage. Thereafter, a
different attorney retained by Defendant filed a claim with
the title insurance policy based on the claim asserted in the
two letters. Because of the Dietmar Dude claim and the title
policy insurance claim, Mr. Smith excluded the property
purchased from Congress Plaza from the financing deal. The
total loan secured by Mr. Smith on behalf of Defendant's
owner using the unrelated property as security was $4, 735
Smith further testified that he believed that Mr. Dude's
and Mr. Kaufman's letters pertained to a January 2010
mortgage on the three parcels because that was the last
recorded document regarding the property. He explained that
now that he understands that Mr. Dude and Mr. Kaufman were
referring to a claim involving an unrecorded mortgage, he
believes that he could currently finance the property for
$1.36 million ($6, 095 million less $4, 735 million) but for
existence of the Lis Pendens. The essence of Mr. Smith's
testimony was that, even though the three parcels of property
purchased from Congress Plaza were previously excluded from
being used as security for the loan solely due to the Dietmar
Dude claim and title insurance policy claim made on the
property, which preceded the filing of the Lis Pendens in
this case, he now believes that the pre-Lis Pendens claims
would no longer preclude the use of the three parcels as
security for a loan. However, according to Mr. Smith, the Lis
Pendens does preclude use of the three parcels as security
for a loan.
additionally introduced five exhibits, and Plaintiff
introduced one exhibit. See DE 127. The Court has
carefully reviewed all of the exhibits.
at the hearing, Plaintiff and Defendant stipulated that the
amount of attorney's fees at issue with regard to the
bond is between $150, 000 and $250, 000.
Court has carefully reviewed the evidence, testimony,
argument of counsel, and the entire docket in this case. The
Court addresses each relevant issue below.
since Defendant conceded at the December 12, 2017 hearing
that there is a fair nexus between the apparent ownership of
the property and the dispute embodied in the lawsuit,
Defendant thereby abandoned its argument that the Lis Pendens
should be discharged. Moreover, the Court has independently
reviewed the facts of this case and finds that a fair ...