Hemingway Villa Condominium Owners Association, Inc., Appellant,
Wells Fargo Bank, N.A., Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 16-2402 Thomas J. Rebull, Judge.
A. McKenna & Associates, P.A. and Andrew H. Braaksma, for
Aldridge & Pite, LLP and Avri S. Ben-Hamo and Steven B.
Greenfield (Boca Raton), for appellee.
SALTER, EMAS and FERNANDEZ, JJ.
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.
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.
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). 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
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.
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
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
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 ...