Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Grand Palace View, LLC v. 5 AIF Maple 2, LLC

Florida Court of Appeals, Third District

July 10, 2019

Grand Palace View, LLC, and Moises Wahnon, Appellants,
v.
5 AIF Maple 2, LLC, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from a non-final order from the Circuit Court for Miami-Dade County, William Thomas, Judge.Lower Tribunal No. 18-20108

          Manos • Schenk, PL, and Tom J. Manos, for appellants.

          Ghidotti ǀ Berger LLP, Chase A. Berger and Jason L. Duggar, for appellee.

          Before EMAS, C.J., and LINDSEY, and GORDO, JJ.

          LINDSEY, J.

         Grand Palace View, LLC and Moises Wahnon appeal a non-final order, entered prior to an answer to the complaint being filed, granting immediate possession of real property in an action for mortgage foreclosure, breach of contract, and breach of guaranty. Because a mortgagee in Florida generally has no right to possess the property before foreclosure and because the order to show cause procedures outlined in section 702.10, Florida Statutes (2018), were not followed, we reverse.

         I. BACKGROUND

         Appellee 5 AIF Maple 2, LLC ("Maple") filed a three-count Complaint against Grand Palace View, LLC ("Grand Palace") and Moises Wahnon ("Wahnon"), alleging causes of action for foreclosure, breach of contract, and breach of guaranty. Maple alleged that on December 8, 2017, Wahnon and Grand Palace executed a note and mortgage in favor of an entity named ICG10 Capital, LLC ("ICG10").[1] In the complaint Maple asserted that "Plaintiff is entitled to enforce the note and mortgage pursuant to Florida Statute 673.3011."[2] Maple further alleged that Grand Palace and Wahnon were in default on the note and mortgage and owed $2, 950, 000.00 plus interest, expenses, fees, and costs. Shortly after filing the complaint, Maple filed a motion for possession of property. Within the time for the filing of an answer, Grand Palace and Wahnon filed a motion to dismiss for lack of standing.

         A non-evidentiary hearing on Maple's motion for possession of property took place on a five-minute motion calendar setting. The trial court deferred ruling on the motion, reasoning that the issue of standing had to be adjudicated first to determine whether Maple had a right to even file the lawsuit. Accordingly, the hearing was reset for a five-minute motion calendar on the motion to dismiss. At the second hearing, the trial court denied the motion to dismiss and then proceeded to address Maple's motion for immediate possession of property, even though that motion was not noticed for hearing that day. Maple argued that pursuant to the language of the mortgage contract, it was entitled to an automatic right of possession of the property upon a default by the mortgagor, and it did not have to wait for a foreclosure judgment or sale.

         In response, Grand Palace and Wahnon argued that such language was unenforceable under Florida law as Florida is a "lien-theory" state as opposed to a "title-theory" state. As such, the mortgagee only has lien rights on the secured property and may not exercise any writ of possession or ejectment until a foreclosure sale has been certified by the Clerk of Court. Grand Palace and Wahnon further asserted that courts cannot enforce illegal contracts on matters governed by statutes intended to protect the public. The court then inquired whether this was a commercial property or a residential property and mentioned the expedited foreclosure statute, seemingly referring to section 702.10, Florida Statutes. Counsel for Grand Palace and Wahnon advised that the subject property is a residence and that Wahnon resides there. Counsel for Maple disagreed and asserted that this is a commercial mortgage because the home was purchased in the name of an LLC and not in an individual's name, even though the guarantor on the note and mortgage lives in the house. The court then entered an order for possession of the property within thirty days reasoning that since Wahnon signed the agreement as an LLC and had counsel, he was bound by his agreement.[3]This timely appeal followed.

         II. JURISDICTION

         Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) (Proceedings to Review Non-Final Orders and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.