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Hemingway Villa Condominium Owners Association, Inc. v. Wells Fargo Bank, N.A.

Florida Court of Appeals, Third District

February 28, 2018

Hemingway Villa Condominium Owners Association, Inc., Appellant,
v.
Wells Fargo Bank, N.A., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-2402 Thomas J. Rebull, Judge.

          Paul A. McKenna & Associates, P.A. and Andrew H. Braaksma, for appellant.

          Aldridge & Pite, LLP and Avri S. Ben-Hamo and Steven B. Greenfield (Boca Raton), for appellee.

          Before SALTER, EMAS and FERNANDEZ, JJ.

          EMAS, J.

         Hemingway Villa Condominium Owners Association, Inc. ("the Association"), the defendant below, appeals from a final summary judgment entered in favor of Wells Fargo Bank, N.A., the plaintiff below. We affirm.

         The lawsuit below stemmed from a foreclosure action filed against a unit owner in the Hemingway Villa Condominium. The foreclosure was filed by JP Morgan Chase Bank, the then-servicer and holder of the note, acting on behalf of the Federal National Mortgage Association ("Fannie Mae"), the owner of the loan in the foreclosure action. The Association was named as a defendant in the foreclosure action. Final judgment of foreclosure was later entered in favor of JP Morgan.

         Fannie Mae was the successful bidder at the foreclosure sale, and took title to the unit. Shortly thereafter, Fannie Mae, through its subsequent servicer, Wells Fargo, sought to sell the unit and requested an estoppel certificate from the Association in order to determine the amount of unpaid assessments, and specifically sought the "Safe Harbor" amounts pursuant to section 718.116(1)(b)1., Florida Statutes (2017).[1] The Association issued a letter in response, but failed to account for the Safe Harbor protection offered to first mortgagees under section 718.116(1)(b). When the Association refused to revise the estoppel certificate, Wells Fargo paid the assessment amounts under protest with a reservation of all rights, later determining that the payment was in excess of the assessments it was required to pay pursuant to the Safe Harbor provisions.[2]

         Wells Fargo then filed a complaint in circuit court which sought, inter alia, compliance with and entitlement to the Safe Harbor provisions of section 718.116(1)(b) and damages against the Association for unjust enrichment. Wells Fargo later moved for summary judgment, which was supported by affidavits, and asserted that Wells Fargo established all of the requisites for relief under the Safe Harbor provisions. Following a hearing, the trial court granted Wells Fargo's motion and entered final summary judgment in its favor. This appeal followed.

         On appeal, the Association contends that summary judgment was improperly entered because there remained a disputed issue of material fact regarding who actually owned the loan, and asserts that, during the relevant time period in question, JP Morgan (and not Fannie Mae) owned the loan such that Fannie Mae was not entitled to safe harbor under section 718.116(1)(b).

         Upon our de novo review, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000), we hold that the trial court correctly determined no genuine issue of material fact existed; that Wells Fargo established Fannie Mae owned the loan at all relevant times from 2007 through the sale of the unit in 2013; and that all of the remaining requirements of section 718.116 had been met, entitling it to the Safe Harbor provisions.

         We find the instant case indistinguishable on its relevant facts from our sister court's decision in Beltway Capital, LLC v. Greens COA, Inc., 153 So.3d 330 (Fla. 5th DCA 2014). We agree with Beltway's holding, applicable here, that, as the owner of first mortgage, Fannie Mae was the "first mortgagee" as required by the Safe Harbor provision, without regard to whether it was also an assignee. Id. at 333. The term "first mortgagee" "is simply one who holds the first mortgage, whether that be the original ...


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