NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
THE BANK OF NEW YORK MELLON f/k/a )
The Bank of New York as Trustee for The)
Certificateholders CWALT, Inc., Alternative
)
Loan Trust 2006-18CB, Mortgage Pass- )
Through Certificates, Series 2006-18CB,)
)
Appellant, )
)
v. ) Case No. 2D17-3291
)
HOA RESCUE FUND, LLC, as Trustee )
under the 12122 Fox Bloom Avenue Trust )
Dated 2/21/2012; HENRY BARAHONA; )
YANIRA LAGOS; SOUTH BAY LAKES )
HOMEOWNERS ASSOCIATION, INC.; and )
BANK OF AMERICA, N.A., )
)
Appellees. )
)
Opinion filed June 8, 2018.
Appeal from the Circuit Court for
Hillsborough County; Perry A. Little and
Wayne Timmerman, Senior Judges.
Nancy M. Wallace of Akerman LLP,
Tallahassee; William P. Heller of Akerman
LLP, Fort Lauderdale; and Eric M. Levine of
Akerman LLP, West Palm Beach, for
Appellant.
Robert E. Biasotti of Biasotti Law, St.
Petersburg, for Appellee HOA Rescue
Fund, LLC.
No appearance for remaining Appellees.
BLACK, Judge.
The Bank of New York Mellon f/k/a The Bank of New York as Trustee for
the Certifcateholders CWALT, Inc., Alternative Loan Trust 2006-18CB, Mortgage Pass-
Through Certificates, Series 2006-18CB (the Bank), challenges the involuntary
dismissal of its foreclosure action. We reverse and remand for further proceedings.
On June 23, 2009, the Bank filed its notice of lis pendens and foreclosure
complaint, naming the mortgagors and the South Bay Lakes Homeowners Association
as defendants. A default was entered against the mortgagors. In January 2012, while
the Bank's foreclosure action was pending, HOA Rescue Fund, LLC, as Trustee under
the 12122 Fox Bloom Avenue Trust dated 2/12/2012, purchased the property at the
foreclosure sale resulting from South Bay Lakes Homeowners Association's lien
foreclosure action. Importantly, South Bay Lakes' lien was recorded in December 2009,
six months after the recordation of the Bank's lis pendens.
Subsequently, HOA Rescue moved to intervene in the Bank's foreclosure
action. Over the Bank's objection, HOA Rescue's motion was granted. HOA Rescue
then filed an answer and affirmative defenses, raising the Bank's lack of standing as a
defense.
A nonjury trial was held in February 2017; only the Bank and HOA Rescue
appeared. The Bank noted that HOA Rescue was a third-party purchaser and would
therefore be "limited" in what it could object to during trial. The court was asked to take
judicial notice of the court file, which it did. Additionally, prior to calling its only witness,
the Bank sought to introduce into evidence the original note and mortgage at issue, as
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well as the assignment of the mortgage, two certified limited powers of attorney, and
certified copies of the pooling and servicing agreement (PSA) and mortgage loan
schedule for the subject mortgage. Over objection, the court admitted all of the
documents.1 The note bears three indorsements: the first is from Greenpoint Mortgage
Funding, Inc., the original lender, to Countrywide Bank, N.A; the second is from
Countrywide Bank, N.A., to Countrywide Home Loans, Inc.; and the third is a blank
indorsement from Countrywide Home Loans, Inc. The assignment of mortgage, dated
July 15, 2009, assigns the note and mortgage from Countrywide Home Loans, Inc., to
the Bank, as Trustee, and provides an effective date of May 4, 2009. The PSA was
executed on May 1, 2006, with a closing date of May 30, 2006, by and between
Countrywide Home Loans, Inc., and the Bank, as Trustee. The PSA identifies mortgage
pass-through certificates series 2006-18CB to include the mortgage at issue.
Following the introduction into evidence of these documents, the Bank
called one witness, a litigation foreclosure specialist for the loan servicer. The witness
testified that the PSA identifies the loan in question by loan number, city, property
location, purchase amount, and several other things which all "match." She also
testified that the PSA "shows, on the title page, that this involves Countrywide Home
Loans, which is one [i]ndorsement on the note and . . . speaks for itself," as to the timing
of the indorsement.
After all evidence had been presented, HOA Rescue moved for an
involuntary dismissal based on the Bank's failure to establish its standing at the
1HOA Rescue does not challenge the court's evidentiary rulings in a cross-
appeal; therefore, we make no comment on those rulings. Cf. Miller v. Bank of N.Y.
Mellon,
189 So. 3d 359, 361-62 (Fla. 4th DCA 2016).
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inception of the action. The court granted the motion and dismissed the foreclosure
action "without prejudice," stating that the Bank could "try again."
The Bank now seeks reversal of the dismissal, arguing both that HOA
Rescue was improperly permitted to intervene in the action and participate in trial and
that the Bank sufficiently established standing and a prima facie case for foreclosure.
As this court has previously held, while it is preferable for the trial court to
enter a final judgment at the conclusion of a nonjury trial, an order granting a motion for
involuntary dismissal in such instances is an appealable final order. See Ventures Tr.
2013-I-H-R v. Asset Acquisitions & Holdings Tr.,
202 So. 3d 939, 940 n.1 (Fla. 2d DCA
2016). Our review is de novo. Id. at 942.
The law is clear that HOA Rescue should not have been permitted to
intervene in the case. A purchaser of property that is the subject of a pending
foreclosure action in which a lis pendens has previously been recorded is not entitled to
intervene in that foreclosure action. Bonafide Props. v. Wells Fargo Bank, N.A.,
198 So.
3d 694, 695 (Fla. 2d DCA 2016) (citing cases). Accordingly, HOA Rescue was
improperly permitted to participate in and defend the foreclosure suit, and the court
improperly granted its motion to dismiss. See Bank of Am., N.A. v. Mirabella Owners'
Ass'n,
238 So. 3d 405, 407 (Fla. 1st DCA Jan. 29, 2018) (holding that because the
purchaser pendente lite was not a proper party to the foreclosure action, "the trial court
erred in granting its motions to dismiss the case").
Moreover, HOA Rescue purchased the property subject to a superior
interest; its subordinate interest is limited, and notwithstanding the improper
intervention, HOA Rescue should not have been permitted to participate as though it
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"were a party to the note and mortgage." See Wells Fargo Bank, N.A. v. Rutledge,
230
So. 3d 550, 552 (Fla. 2d DCA 2017); cf. Pealer v. Wilmington Tr. Nat'l Ass'n,
212 So. 3d
1137, 1139 (Fla. 2d DCA 2017) (Sleet, J., Concurring) (stating that indispensable third-
party purchasers "may participate in the bank's foreclosure proceedings only to the
extent that they plan to exercise their statutory right of redemption and prevent the
forced sale of the property"). HOA Rescue, a purchaser pendente lite, "like any
intervenor, 'must take the suit as [it] finds it.' " Ventures Trust, 202 So. 3d at 943
(alteration in original) (quoting Coast Cities Coaches, Inc. v. Dade County,
178 So. 2d
703, 706 (Fla. 1965)); accord State Tr. Realty, LLC v. Deutsche Bank Nat'l Tr. Co.
Ams.,
207 So. 3d 923, 925 (Fla. 4th DCA 2016). It could not contest the Bank's claims
against the mortgagors and South Bay Lakes; nor could it "challenge [the] sufficiency of
the pleadings or the propriety of the procedure." See State Tr. Realty, 207 So. 3d at
925-26 (quoting Krouse v. Palmer,
179 So. 762, 763 (Fla. 1938)).
Accordingly, we reverse the order dismissing the foreclosure action and
remand for further proceedings consistent with this opinion.
Reversed and remanded.
CRENSHAW and SLEET, JJ., Concur.
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