Bymel v. Bank of America, N.A. ( 2015 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed March 11, 2015.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D13-3099
    Lower Tribunal No. 12-7660
    ________________
    William J. Bymel,
    Appellant,
    vs.
    Bank of America, N.A.,
    Appellee.
    An Appeal from an order of the Circuit Court for Miami-Dade County,
    Jennifer D. Bailey, Judge.
    Krinzman, Huss, Lubetsky, and Cary A. Lubetsky and Aniella Gonzalez, for
    appellant.
    Albertelli Law (Tampa),1 for appellee.
    1 Albertelli Law represented Bank of America in the proceedings below, and
    Bymel served Albertelli Law with his notice of appeal. This Court issued an order
    directing Bank of America to file an answer brief within ten days from the date of
    the order or be precluded from filing a brief and/or presenting an oral argument.
    Bank of America failed to file an answer brief as directed by this Court.
    Thereafter, this Court issued an order precluding Bank of America from filing an
    Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
    ROTHENBERG, J.
    William J. Bymel (“Bymel”) appeals from an order denying his motion to
    intervene in the foreclosure action filed by Bank of America, N.A. against Paul
    Everett and Carmell S. Johnson-Everett (collectively, “the Everetts”).2 We find
    that the trial court abused its discretion by denying the motion to intervene, and
    therefore, we reverse and remand for further proceedings.
    After Bank of America filed its foreclosure action against the Everetts and
    recorded its lis pendens in 2012, Bank of America approved a short sale of the
    Everetts’ property to Bymel in May 2013. Prior to the closing of the short sale,
    Bank of America approved the settlement statement that was prepared by the
    settlement agent.   Then, in June 2013, the short sale transaction closed; the
    Everetts executed a warranty deed naming Bymel as the purchaser of the real
    property, which deed was later recorded; and the settlement agent initiated a wire
    transfer to Bank of America of the short sale proceeds. The wire transfer was not
    answer brief or presenting an oral argument unless otherwise ordered, but allowed
    Bank of America to file a memorandum of points and authorities in support of its
    position. As of this date, Bank of America has not filed anything in this appeal.
    2 Bymel also appealed the denial of his motion to continue the non-jury trial
    scheduled for December 10, 2013. The non-jury trial did not take place due to
    Bymel’s filing of the instant appeal, and therefore, the denial of the motion to
    continue is no longer at issue.
    2
    accepted by Bank of America,3 and thereafter, the settlement agent attempted to
    resolve the matter with Bank of America. In October 2013, Bank of America sent
    a second letter to the Everetts stating that it was approving the short sale to Bymel.
    As requested by Bank of America, the Everetts executed this letter although the
    short sale had previously closed and the Everetts had already transferred the
    property to Bymel in June 2013.        On December 5, 2013, Bank of America
    contacted the settlement agent acknowledging that it had received certain
    documents but indicated that there had not been a final approval. Bank of America
    informed the settlement agent that one of its settlement associates would be in
    contact within five days.4
    Based on these proceedings, Bymel moved on December 6, 2013, to
    continue the non-jury foreclosure trial scheduled for December 10, 2013, and also
    moved to intervene in the foreclosure action pursuant to Florida Rule of Civil
    Procedure 1.230. Bymel asserted that he has a superior interest in the real property
    because he is the present owner of the real property as a result of the short sale
    approved by Bank of America.          Bymel further asserted that he reasonably
    3 At this point, it is unclear why Bank of America refused to accept the short sale
    funds after approving the settlement statement and allowing the short sale to
    proceed to closing. We note, however, that the short sale approval letter provides
    that Bank of America will cancel the approval of the short sale offer and continue
    with the foreclosure action if the terms and conditions of the short sale approval
    are not met. We offer no opinion as to whether the terms and conditions of the
    short sale were met.
    4 The short sale proceeds are currently in the settlement agent’s trust account.
    3
    anticipated that Bank of America would dismiss the foreclosure action, discharge
    the notice of lis pendens, and record a satisfaction of mortgage shortly after the
    closing of the short sale, thereby clearing title to the real property. The trial court
    denied Bymel’s motion to continue the trial and motion to intervene. Bymel’s
    appeal followed.
    Bymel contends that the trial court abused its discretion by denying his
    motion to intervene. See Racing Props., L.P. v. Baldwin. 
    885 So. 2d 881
    , 883 (Fla.
    2004) (holding that a trial court’s ruling on a motion to intervene is reviewed for
    an abuse of discretion). Under the facts of this case, we agree.
    Rule 1.230 provides: “Anyone claiming an interest in pending litigation
    may at any time be permitted to assert a right by intervention, but the intervention
    shall be in subordination to, and in recognition of, the propriety of the main
    proceeding, unless otherwise ordered by the court in its discretion.”       As stated
    earlier, Bymel claims that he has an interest in the pending litigation because he is
    the current owner of the real property that is the subject of Bank of America’s
    foreclosure action.
    We recognize that in Andresix Corp. v. Peoples Downtown National Bank,
    
    419 So. 2d 1107
     (Fla. 3d DCA 1982), this Court affirmed the denial of Andresix’s
    motion to intervene in a pending foreclosure action, holding that “Andresix, as a
    purchaser of property which was then the subject of a mortgage foreclosure action
    4
    and accompanying lis pendens by Peoples Downtown National Bank, was not
    entitled to intervene in such action.” Id. at 1107; see SADCO, Inc. v. Countrywide
    Funding, Inc., 
    680 So. 2d 1072
    , 1072 (Fla. 3d DCA 1996) (affirming denial of
    motion to intervene in a residential foreclosure action citing to Andresix for the
    proposition that a “purchaser of property that was subject of lis pendens arising
    from bank’s foreclosure action was not entitled to intervene in that action”); see
    also Timucuan Props., Inc. v. Bank of New York Mellon, 
    135 So. 3d 524
    , 524
    (Fla. 5th DCA 2014) (per curiam affirmance citing to SADCO and Andresix). The
    rule in Andresix is based on the “concern that to allow purchasers pendente lite to
    intervene would unnecessarily protract litigation.” Harrod v. Union Fin. Co., 
    420 So. 2d 108
    , 108 (Fla. 3d DCA 1982). Thus, when property is purchased during a
    pending foreclosure action in which a lis pendens has been filed, the purchaser
    generally is not entitled to intervene in the pending foreclosure action. Indeed, if
    such a buyer purchases the property, he does so at his own risk because he is on
    notice that the property is subject to the foreclosure action. See Centerstate Bank
    Cent. Fla., N.A. v. Krause, 
    87 So. 3d 25
    , 28 (Fla. 5th DCA 2012) (“[T]he purpose
    of a notice of lis pendens is to notify third parties of pending litigation and protect
    its proponents from intervening liens that could impair or extinguish claimed
    property rights.”). Allowing such a purchaser to intervene would unnecessarily
    prolong the foreclosure action.
    5
    The instant case, however, is factually and materially distinguishable from
    Andresix, Harrod, SADCO, and this general rule.          Unlike the purchasers in
    Andresix, Harrod, SADCO, and most situations where the buyer purchases
    property during a pending foreclosure action, Bymel was not a stranger to Bank of
    America. Rather, Bank of America was actively involved in Bymel’s purchase of
    the real property because it had approved both the short sale of the real property to
    Bymel and the settlement statement prepared by the settlement agent prior to the
    short sale closing. Therefore, this is not a situation where Bymel believed that he
    was purchasing the property subject to the pending foreclosure action and the lis
    pendens. Instead, Bymel reasonably believed that following the short sale, Bank
    of America would dismiss its foreclosure action against the Everetts, discharge its
    notice of lis pendens, and record a satisfaction of its mortgage, thereby clearing
    title to the real property.
    Based on the facts of this case, we conclude that the trial court abused its
    discretion by denying Bymel’s motion to intervene. Accordingly, we reverse the
    denial of Bymel’s motion to intervene and remand with instructions to enter an
    order allowing Bymel to intervene in the foreclosure action.
    Reversed and remanded.
    6
    

Document Info

Docket Number: 3D13-3099

Judges: Shepherd, Suarez, Rothenberg

Filed Date: 3/11/2015

Precedential Status: Precedential

Modified Date: 10/19/2024