Bensoussan v. Banon5 , 252 So. 3d 298 ( 2018 )


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  •     Third District Court of Appeal
    State of Florida
    Opinion filed July 18, 2018.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D17-1493
    Lower Tribunal No. 16-4
    ________________
    Valerie Viviane Bensoussan and Marc Cohen,
    Appellants,
    vs.
    Banon5 LLC, etc., et al.,
    Appellees.
    An Appeal from the Circuit Court for Miami-Dade County, John
    Schlesinger, Judge.
    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
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    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,
    1  In November 2015, the Prior Owners voluntarily dismissed their earlier
    appeal (Case No. 3D15-1382) relating to their motion to vacate the final
    judgment of foreclosure and their objections to the foreclosure sale to
    Banon5.
    2  This appeal does not involve the claim by the Prior Owners against the
    condominium association; the Prior Owners voluntarily dismissed that claim
    with prejudice before the trial court entered the final order presently under
    review.
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    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 personal property to their new residence; and unlicensed movers
    and persons hired by Banon5 and Elmaleh stole the personal property “for
    their own use, or to be sold for their benefit.”3
    In 2017, the trial court entered the final judgment and order
    dismissing the first amended complaint with prejudice, and this appeal
    followed.
    Analysis
    3  The amended complaint acknowledges that a limited number of items of
    the Prior Owners’ personal property were returned to the control of the Prior
    Owners in August 2015 as the Miami Beach police investigated the loading
    of a pickup truck with those items. Allegedly, the items were being removed
    from the condominium by employees of Banon5 and Elmaleh. The itemized
    list of the Prior Owners’ personal property subject to their claims and
    located in the Unit at the time they were locked out included estimated
    values for each item and a total exceeding $209,000.00.
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    We review de novo the final order of dismissal with prejudice,
    assuming all allegations of the first amended complaint to be true, and
    construing all reasonable inferences from those allegations in favor of the
    Prior Owners. United Auto. Ins. Co. v. Law Offices of Michael I. Libman,
    
    46 So. 3d 1101
    , 1103-04 (Fla. 3d DCA 2010).
    I.     Section 83.62, Florida Statutes, Is Inapplicable
    The trial court order states that the Prior Owners were alleging that
    “the put-out on July 15, 2015 is governed by Florida Statutes § 83.62.” That
    statute is a part of the Florida Residential Landlord and Tenant Act, and the
    Act applies to “the rental of a dwelling unit.”4          Section 83.62 is not
    applicable to a writ of possession to dispossess a former owner remaining in
    possession after a foreclosure sale with no rental agreement in effect.
    But the trial court’s order was incorrect in its implications that all of
    the Prior Owners’ claims relied on that statute, and that the statute itself
    offered Banon5 and Elmaleh “an immunity from liability for any loss,
    destruction or damage to the personal property after its removal from the
    premises.” The amended complaint mentioned section 83.62 in a footnote to
    one paragraph of the general allegations and in one paragraph within the
    conversion count. There is no separate claim grounded on a violation of
    4   § 83.41, Fla. Stat. (2015).
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    section 83.62, nor are the causes of action alleged in the amended complaint
    irrevocably tethered to a breach of that statute.
    Section 83.62(2) applies to a writ of possession executed by the
    sheriff regarding a residential apartment. It authorizes the landlord or an
    agent of the landlord to “remove any personal property [of the tenant being
    evicted] found on the premises to or near the property line.” When that
    procedure has been followed, “Neither the sheriff nor the landlord or the
    landlord’s agent shall be liable to the tenant or any other party for the loss,
    destruction, or damage to the property after it has been removed.” Id.
    Because the statute is inapplicable to the record before us, however, it
    does not provide immunity for Banon5 or Elmaleh, or legal grounds for the
    order dismissing the Prior Owners’ amended complaint with prejudice. The
    parties were never landlord and tenant, one to the other. Our conclusion on
    this point aligns with that of the Fifth District in Skelton v. Real Estate
    Solutions Home Sellers, LLC, 
    202 So. 3d 960
     (Fla. 5th DCA 2016).
    II.    Equitable Subrogation to Mortgagee’s Rights
    The order of dismissal also determined that Banon5 and Elmaleh had
    a legal right to retain the Prior Owners’ personal property because Banon5
    had become equitably subordinated to the foreclosing mortgagee’s rights.
    The order observed that the mortgage in this case encumbered “all furniture,
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    furnishings, fixtures and equipment contained in or appurtenant to said
    premises [the Unit].”
    An examination of the final judgment of foreclosure, however,
    discloses that the mortgage lien and the sale only included the Unit, and not
    any personal property within the Unit. The subrogation argument also fails
    under the well-settled principle of merger. Nack Holdings, LLC v. Kalb, 
    13 So. 3d 92
    , 94 (Fla. 3d DCA 2009); Whitehurst v. Camp, 
    699 So. 2d 679
    , 682
    (Fla. 1997).
    When a final judgment is entered foreclosing a mortgage, the
    mortgage itself “loses its identity,” and the final judgment itself controls the
    mortgagee’s/judgment creditor’s rights. Nack Holdings, LLC, 
    13 So. 3d at
    94 n.2 (quoting Whitehurst, 
    699 So. 2d at 682
    ). At the foreclosure sale, the
    Clerk only sold the Unit, and there existed no residual mortgage lien for
    Banon5 to buy regarding the personal property within the Unit.
    III.   The Prior Owners’ Claims
    We agree with the trial court that the Prior Owners do not have a
    cause of action for property removed from the Unit in the presence of the
    police pursuant to the writ of possession. That said, however, we find that
    the allegations of the first amended complaint state a cause of action
    regarding Banon5’s and Elmaleh’s exercise of control over the Prior
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    Owners’ personal property in the Unit after the locks were changed and after
    Elmaleh refused to allow the Prior Owners and their movers to enter the
    Unit to remove property in the Unit. Envases Venezolanos, S.A. v. Collazo,
    
    559 So. 2d 651
    , 652-53 (Fla. 3d DCA 1990).           The allegations in the
    amended complaint and its attachments are legally sufficient “[u]nder the
    applicable standard of review at this procedural point,” though the
    allegations remain subject to proof, defenses, and affirmative defenses as the
    case proceeds. See Ice v. Cosmopolitan Residences on S. Beach, a Condo.
    Ass’n, 
    237 So. 3d 408
    , 412 (Fla. 3d DCA 2017).
    IV.   Conclusion
    The final judgment and order granting dismissal of the amended
    complaint with prejudice is reversed and the case is remanded to the trial
    court for further proceedings.
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