final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, William Thomas, Judge.Lower Tribunal No.
• Schenk, PL, and Tom J. Manos, for appellants.
Ghidotti ǀ Berger LLP, Chase A. Berger and Jason L.
Duggar, for appellee.
EMAS, C.J., and LINDSEY, and GORDO, JJ.
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
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"). In the complaint Maple asserted that
"Plaintiff is entitled to enforce the note and mortgage
pursuant to Florida Statute 673.3011." 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.
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.
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.This timely appeal
Rule of Appellate Procedure 9.130(a)(3)(C)(ii) (Proceedings
to Review Non-Final Orders and ...