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Rozanski v. Wells Fargo Bank, N.A.

Florida Court of Appeals, Second District

June 22, 2018

ZDZISLAW JESSE ROZANSKI, Appellant,
v.
WELLS FARGO BANK, N.A., and HALINA KWIATKOWSKI, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Pinellas County; Marion L. Fleming, Judge.

          Alexander Allred of Castle Law Group, P.A., Largo, for Appellant.

          Martin S. Awerbach and Michael A. Cohn of Awerbach Cohn, Clearwater, for Appellee Wells Fargo Bank, N.A.

          No appearance for remaining Appellee.

          MORRIS, JUDGE.

         Zdzislaw Rozanski appeals a partial summary judgment entered in favor of Wells Fargo Bank, N.A., imposing and foreclosing an equitable lien against Rozanski's real property. Rozanski argues that the trial court erred in allowing Wells Fargo to foreclose on the equitable lien because Wells Fargo did not show that Rozanski was in default on the loan from which the lien arose. We agree and reverse the decision of the trial court on the issue of foreclosure.

         I. Facts

         In 2002 Rozanski purchased the property that is the subject of this case. That same year, he married Halina Kwiatkowski. In 2003 he executed a note with Wells Fargo in the amount of $273, 000, which was secured by a mortgage on the property. Both the mortgage and the note were in his name alone.

         In 2007 Kwiatkowski filed for divorce from Rozanski. A final judgment of dissolution was entered in 2008, pursuant to a marital settlement agreement, granting Kwiatkowski sole possession of the property, and a quit claim deed was executed in her favor. Also in 2008, Kwiatkowksi refinanced the property through a loan with Wells Fargo in the amount of $370, 000, which was secured by a mortgage. A portion of this money was used to pay off the balance of Rozanski's mortgage, $321, 042, and Wells Fargo issued a release of Rozanski's mortgage.

         In 2012 Wells Fargo filed a complaint for mortgage foreclosure against Kwiatkowski. In 2014 Wells Fargo added Rozanski as a defendant. He answered, alleging that the quit claim deed conveying ownership to Kwiatkowksi was a forgery. In the dissolution case, Rozanski obtained a judgment setting aside the final judgment of dissolution based on fraud upon the court. In the meantime, Wells Fargo amended its complaint to allege a count to impose and foreclose an equitable lien against Rozanski's property, "under principles of subrogation," in the amount of the payoff of Rozanski's mortgage. In response to the final judgment setting aside the dissolution of marriage, Wells Fargo filed a motion for summary judgment, proceeding solely on its count to impose and foreclose an equitable lien.

         After a hearing, the trial court granted Wells Fargo's motion and entered a final judgment imposing and foreclosing an equitable lien. The trial court ruled that Wells Fargo "is entitled to impose and foreclose the Equitable Lien against the Property in the Prior Mortgage Payoff amount of $321, 042.02, based upon subrogation," citing Tribeca Lending Corp. v. Real Estate Depot, Inc., 42 So.3d 258 (Fla. 4th DCA 2010).

         II. Analysis

         On appeal, Rozanski contends that Wells Fargo had no legal or equitable basis to foreclose on the equitable lien, although he does not "take issue with the existence of the equitable lien." He argues that Wells Fargo was not entitled to foreclose on ...


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