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Bensoussan v. Banon5 LLC.

Florida Court of Appeals, Third District

July 18, 2018

Valerie Viviane Bensoussan and Marc Cohen, Appellants,
v.
Banon5 LLC, etc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, John Schlesinger, Judge. Lower Tribunal No. 16-4

          Xander Law Group, P.A., and Wayne R. Atkins, for appellants.

          Eric J. Grabois, for appellees.

          Before SALTER, EMAS and LOGUE, JJ.

          SALTER, J.

         Valerie Bensoussan and Marc Cohen ("Prior Owners") appeal a final judgment and circuit court order dismissing their amended complaint with prejudice. We reverse and remand the case for further proceedings.

         Circuit Court Proceedings and 2015 Appeal

         The appellees are a company ("Banon5") which acquired title to the condominium unit previously owned by the Prior Owners (the "Unit"). The Prior Owners lost title to the Unit in a foreclosure; Banon5 was the successful bidder at the foreclosure sale. Another appellee, Pierre Elmaleh, is a principal and agent of Banon5.

         Following the foreclosure sale, the Prior Owners commenced an earlier appeal to this Court seeking review of orders denying their objections to the foreclosure sale and their motion to vacate that sale. That prior appeal, Cohen v. Laze-E-J, LLC, Case No. 3D15-1382, was pending when Banon5 sought and obtained issuance of a writ of possession (July 1, 2015) in order to obtain possession and control of the Unit. Neither the final judgment of foreclosure nor the writ of possession, however, authorized Banon5 to take or retain possession of the Prior Owners' personal property within the Unit.

         On the same day the trial court granted Banon5's motion for a writ of possession, the Prior Owners filed an emergency motion in this Court for review of the trial court's order denying a stay pending their appeal. Before the writ of possession was carried out, this Court entered a temporary stay (July 2, 2015) and directed that a response to the emergency motion be filed within ten days by the foreclosing lender and Banon5 in Case No. 3D15-1382.

         After consideration of Banon5's response, this Court lifted the temporary stay on July 14, 2015.[1] The following day, Banon5 and Elmaleh brought the police to the Unit to carry out the writ of possession.

         The execution of the writ of possession and disposition of the Prior Owners' personal property inside the Unit became the subject of a separate, 2016 lawsuit by the Prior Owners against Banon5, Elmaleh, and the condominium association.[2] The present appeal was taken from the final judgment and order of dismissal in that separate case.

         In their first amended complaint in the 2016 lawsuit, the Prior Owners alleged four of the five counts against Banon5 and Elmaleh, for civil theft, conversion, replevin, and negligence, and a single negligence count against the association. The allegations essentially contended that: Banon5 and Elmaleh did not allow the Prior Owners a reasonable time (following this Court's termination of the temporary stay) within which to remove their personal property from the Unit; Banon5 and Elmaleh had no right to possession or control of that personal property; Banon5 and Elmaleh wrongfully changed the locks and denied access to the Unit to the Prior Owners and their scheduled movers, depriving them of the opportunity to move the ...


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