FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Marion L.
Alexander Allred of Castle Law Group, P.A., Largo, for
S. Awerbach and Michael A. Cohn of Awerbach Cohn, Clearwater,
for Appellee Wells Fargo Bank, N.A.
appearance for remaining Appellee.
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.
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.
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
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.
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).
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 ...