Echo River Sanctuary, LLC f/k/a TSE Plantation, LLC v. 21st Mortgage Corp., Meri L. Harrell Curtis R. Harrell ( 2022 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D21-1940
_____________________________
ECHO RIVER SANCTUARY, LLC
f/k/a TSE PLANTATION, LLC,
Appellant/Cross-Appellee,
v.
21ST MORTGAGE CORP., MERI L.
HARRELL; CURTIS R. HARRELL, et
al.,
Appellees/Cross-Appellants.
_____________________________
On appeal from the Circuit Court for Suwannee County.
David W. Fina, Judge.
September 14, 2022
ON MOTION FOR REHEARING/REHEARING EN BANC
JAY, J.
We deny the motion for rehearing, rehearing en banc, and/or
certification. We withdraw our previous opinion, however, and
substitute the following in its place.
Appellant, Echo River Sanctuary, LLC (“Echo River”), appeals
the trial court’s judgment that awarded Appellee, 21st Mortgage
Corporation (“21st Mortgage”), the right to possess a mobile home
that sits on a parcel of land in Live Oak, Florida. For the reasons
that follow, we reverse the trial court’s judgment.
I.
Curtis and Meri Harrell—husband and wife—owned a 160-
acre parcel of land in Live Oak. They initially resided in a
singlewide trailer on the property. First Guaranty Bank and Trust
Company of Jacksonville (“First Guaranty”) held a mortgage on
the land, which originated in 2006. The mortgage contained an
after-acquired property clause, meaning that the mortgage
encumbered the land as well as all future fixtures and
improvements. The Harrells defaulted on their mortgage, and in
November 2010, First Guaranty initiated foreclosure proceedings.
In November 2011, while the foreclosure process was ongoing,
the Harrells purchased a 2009 Scotbilt doublewide mobile home
and installed it as their new residence on the 160-acre lot. They
financed their purchase with a loan from 21st Mortgage and
granted 21st Mortgage a security interest in the mobile home. In
December 2011, approximately one month after the purchase,
Curtis Harrell filed a Chapter 7 bankruptcy petition in the United
States Bankruptcy Court for the Middle District of Florida.
Ultimately, Mr. Harrell breached the terms of his settlement
agreement with the bankruptcy trustee, and in June 2014, the
bankruptcy court revoked Mr. Harrell’s bankruptcy discharge and
dismissed the bankruptcy case.
First Guaranty’s mortgage of the Harrells’ land passed to
CenterState Bank of Florida (“CenterState”). In December 2017,
CenterState obtained a final judgment of foreclosure and became
the owner of the 160-acres. In February 2018, pursuant to an
option contract that it executed in June 2013, Echo River bought
the property from CenterState.
Meanwhile, the Harrells also defaulted on their mobile home
loan from 21st Mortgage. In November 2017, 21st Mortgage filed
a replevin action against the Harrells to repossess the mobile
home. Echo River intervened in the case as the owner of the land.
Echo River asserted ownership of the mobile home, alleging that it
was a fixture to the land that Echo River acquired from
2
CenterState. 21st Mortgage amended its complaint to add a
replevin claim against Echo River. In response, Echo River
asserted that 21st Mortgage never perfected its mobile home lien
and that 21st Mortgage acted with unclean hands in Mr. Harrell’s
bankruptcy case.
In the first installment of the trial proceedings, the court
granted summary judgment for Echo River, finding that 21st
Mortgage’s claim failed because 21st Mortgage acted with unclean
hands in the bankruptcy proceedings by misrepresenting the
mobile home’s value and Mr. Harrell’s equity. See 21st Mortg.
Corp. v. TSE Plantation, LLC, 301 So. 3d 1120, 1122 (Fla. 1st DCA
2020) (the doctrine of unclean hands is an equitable defense that
applies when “the plaintiff has engaged in some manner of
unscrupulous conduct, overreaching, or trickery,” and it may be
raised by a defendant who claims the plaintiff’s unscrupulous
conduct toward a third party also injured the defendant). In the
appeal from that judgment, this Court summarized the mobile
home’s role in the bankruptcy proceeding:
When the bankruptcy trustee sought to bring the mobile
home into the bankruptcy estate, 21st Mortgage filed an
objection, arguing that the mobile home was only worth
$30,000 and the Harrells owed more than $60,000 on the
loan. 21st Mortgage asserted that there was no equity in
the mobile home and, therefore, the bankruptcy trustee
should abandon its interest in that asset. Neither the
Harrells nor 21st Mortgage notified the bankruptcy
trustee or the bankruptcy court that the mobile home at
issue was not the old mobile home originally on the
property, but a brand new Scotbilt mobile home recently
financed for $81,000.
Id. at 1121.
This Court, finding that there was a genuine issue of material
fact as to whether Echo River was injured by 21st Mortgage’s
purported misconduct in the bankruptcy proceeding, reversed the
summary judgment. Id. at 1122–23 (noting that the unclean hands
defense is “generally not suitable for resolution on summary
judgment because it requires the determination of factual
3
disputes” and holding that Echo River’s alleged injury was not
clear from the record). On remand, the trial court held a non-jury
trial. Before this trial, the parties stipulated to the following facts:
1. Meri and Curtis Harrell first executed documents
granting a security interest in the Scotbilt mobile home
on November 4 and 8, 2011.
2. Plaintiff [21st Mortgage] entered into a contract to
fund the purchase of a Scotbilt Mobile Home by
Defendants Meri and Curtis Harrell on November 18,
2011.
3. Meri and Curtis Harrell have not responded to this suit
or the related claims.
4. The mobile home was installed on Defendant Harrell’s
property on November 18, 2011, including connecting to
septic and utilities.
5. Defendant Curtis Harrell filed a Chapter 7 petition in
the bankruptcy court on December 11, 2011, in the
Middle District of Florida Jacksonville Division.
6. Plaintiff [21st Mortgage] first filed lien papers with the
Department of Motor Vehicles on January 4, 2012.
7. Defendant TSE [Echo River] entered into an option
contract to purchase the real property on June 18, 2013,
from Park Properties, Inc., a subsidiary of CenterState
Bank, should it acquire title to the property.
8. The property was sold to Echo River Sanctuary, LLC
when it was known as TSE Plantation, LLC on February
2, 2018. 1
1 Paragraph 8 of the stipulation states that Echo River
acquired the land on February 2, 2012. However, at the start of
trial, the parties acknowledged that the 2012 date was a
4
Two witnesses testified at trial: Jeffrey Warkins, a staff
attorney for 21st Mortgage, and Thomas S. Edwards, Jr., Echo
River’s managing member. Warkins testified that the Harrells
defaulted on the mobile home loan in 2017. The Harrells’ contract
with 21st Mortgage characterized the mobile home as personal
property. Because it is a doublewide, the mobile home has two
certificates of title from the Department of Highway Safety and
Motor Vehicles (“DHSMV”). The DHSMV issued those certificates
on January 4, 2012. Each identifies 21st Mortgage as the sole lien
holder. Warkins agreed that 21st Mortgage had not perfected its
security interest in the mobile home at the time that Mr. Harrell
filed his bankruptcy petition on December 11, 2011. Warkins also
acknowledged that 21st Mortgage did not notify the bankruptcy
court that 21st Mortgage attempted to perfect its security interest
after Mr. Harrell filed his bankruptcy petition.
Edwards testified that during the time between when Echo
River exercised its option contract with CenterState and when the
closing occurred, he went to the property to inspect it. While there,
he saw the mobile home—which bore a permanent real property
sticker and had no license plate. The mobile home was affixed to
the ground and had no wheels. It was connected to a septic system
and utilities. It was also surrounded by trees and plants. Edwards
concluded that “it was made a part of the property in that it was
not going to be removed without doing damage [].” Records from
the Suwanee County tax collector’s office showed that the mobile
home was classified as real property. Edwards contacted
CenterState about the mobile home. While CenterState would not
issue a title warranty on the doublewide, as part of the land sale,
it granted Echo River any rights or interests it had in the mobile
home.
After completion of the non-jury trial, the court entered a
boilerplate final judgment—in the form proposed by 21st Mortgage
with little alteration—which concluded that 21st Mortgage’s right
to possess the mobile home was superior to that of Echo River’s.
typographical error, and that the correct purchase date was
February 2, 2018.
5
The judgment directed the clerk to issue a writ of possession 2 in
favor of 21st Mortgage and declared that Echo River was not
entitled to relief on its counterclaims. This appeal followed.
II.
The trial court’s determination that 21st Mortgage has a
possessory interest in the mobile home that is superior to Echo
River’s is a legal conclusion that we review de novo. 3 See Young v.
Young, 96 So. 3d 478, 478 (Fla. 1st DCA 2012). The central
question in this appeal is whether 21st Mortgage has a valid lien
on the mobile home that is enforceable against Echo River.
Because the certificates of title that reflect 21st Mortgage’s lien are
void, we hold that 21st Mortgage cannot enforce its lien on the
mobile home against Echo River.
The Effect of the Bankruptcy Stay
The parties agree that the Harrells granted 21st Mortgage a
security interest in the mobile home in November 2011 when the
Harrells signed their security agreement and 21st Mortgage
loaned them the money to buy the mobile home. See § 679.2031(1),
Fla. Stat. (a creditor’s security interest in collateral attaches when
it becomes enforceable against the debtor). To guard its security
interest in the mobile home against claims by third parties, 21st
Mortgage had to perfect its interest. See HSBC Bank USA, N.A. v.
Perez, 165 So. 3d 696, 700 (Fla. 4th DCA 2015); Bay Cty. Sheriff’s
2 21st Mortgage alleges that the writ of “possession” language
is a scrivener’s error, and that the judgment should instead say
writ of “replevin.” In its cross-appeal, 21st Mortgage asks this
Court to affirm the trial court’s judgment and grant leave for the
trial court to correct the scrivener’s error. Because we reverse the
trial court’s judgment, this issue is moot.
3 The judgment on appeal does not contain any findings of fact,
to which we would have deferred if they were supported by
competent, substantial evidence. See Van v. Schmidt, 122 So. 3d
243, 258 (Fla. 2013); South Carolina Ins. Co. v. Wolf, 331 So. 2d
337, 339 (Fla. 1st DCA 1976).
6
Office v. Tyndall Fed. Credit Union, 738 So. 2d 456, 458 (Fla. 1st
DCA 1999). To perfect a security interest in a mobile home, a
creditor must file its lien with the DHSMV. See § 319.27, Fla. Stat.
Indeed, the statute provides that no lien on a mobile home shall be
enforceable in any Florida court against other creditors or
subsequent purchasers unless the lienholder files notice of its lien
with the DHSMV and the DHSMV issues a certificate of title that
notes the lien. See § 319.27(2), Fla. Stat.
If a creditor files lien documents with the DHSMV within
fifteen days after the debtor receives possession of the mobile home
and signs the security agreement, the date of perfection relates
back to the date of attachment. § 319.27(3)(b). Stated differently,
a creditor who follows the statutory procedure is deemed to have
perfected its lien on the day of the lien’s creation. However, when
a creditor waits more than fifteen days to file the lien documents,
the date of perfection is the date that the DHSMV receives the
documents. Id.; see, e.g., In re Perkins, 73 B.R. 317, 318 (Bankr.
N.D. Fla. 1987).
Here, the pre-trial stipulation establishes that 21st Mortgage
“first filed lien papers” with the DHSMV on January 4, 2012—
which is also the date of issue shown on the certificates of title. The
parties do not dispute that this date was more than fifteen days
after the Harrells took possession of the mobile home. Therefore,
21st Mortgage is not eligible for the “relates back” protection of
section 319.27(3)(b). Nevertheless, because it filed lien documents
with the DHSMV on January 4, 2012, 21st Mortgage argues that
it perfected its lien on that date.
The trouble with this argument is that on December 11,
2011—nearly a month before 21st Mortgage attempted to perfect
its lien—Mr. Harrell filed for bankruptcy. Filing a bankruptcy
petition triggers “an automatic stay of all proceedings against a
debtor effective the date the petition is filed and actions taken in
violation of the stay are void even if there is no actual notice of the
stay.” Personalized Air Conditioning, Inc. v. C.M. Sys. of Pinellas
Cty., Inc., 522 So. 2d 465, 466 (Fla. 4th DCA 1988); see 11 U.S.C. §
362 (the Bankruptcy Code’s automatic stay provision); Borg-
Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.
1982) (“Actions taken in violation of the automatic stay are void
7
and without effect.”). The stay includes “any act to create, perfect,
or enforce any lien against property of the estate.” 11. U.S.C.
§362(a)(4); see Matter of Fla. Dairy, Inc., 22 B.R. 197, 199 (Bankr.
M.D. Fla. 1982) (“Section 362(a) of the [Bankruptcy] Code provides
that the filing of a petition for relief under the Code operates as a
stay of any act to create, perfect, or enforce any lien against
property of the Debtor’s estate or the property of the Debtor. The
stay is effective upon the date of filing and actions taken in
violation of the stay are void even if there is no actual notice of the
stay.”).
Thus, the lien reflected on the mobile home’s title certificates
is a nullity because 21st Mortgage recorded that lien in violation
of the automatic stay. See Void and Voidable, BLACK’S LAW
DICTIONARY (11th. ed. 2019) (whereas a voidable act is “[v]alid
until annulled,” a void act is “an absolute nullity” that has “no legal
effect”); In re Hambright, 635 B.R. 614, 631 n.6 (Bankr. N.D. Ala.
2022) (“In the Eleventh Circuit, actions that violate the stay are
void and without effect (not merely voidable).”); see also In re
Jocelyn, 574 B.R. 771, 772 (Bankr. M.D. Fla. 2017) (because
“actions taken in violation of the automatic stay are void ab initio,”
a foreclosure sale that occurred days after the stay began was
void); McMahon v. Ryan, 964 So. 2d 198 (Fla. 5th DCA 2007)
(because an action taken in violation of the automatic bankruptcy
stay is a nullity, service of process in a state court proceeding is
void as to a party who filed a bankruptcy petition before being
served).
21st Mortgage could have perfected its lien any time in the
weeks between when its security interest attached and when Mr.
Harrell filed his bankruptcy petition. In fact, given that First
Guaranty initiated foreclosure proceedings against the Harrells’
land in November 2010—a year before the Harrells bought the
mobile home—21st Mortgage should have recognized the prudence
of timely perfecting its security interest. Alternatively, 21st
Mortgage could have sought the bankruptcy court’s permission to
perfect its lien after the onset of the automatic stay. See 11 U.S.C.
§ 362(d); McMahon, 964 So. 2d at 200 (“While it is true that actions
taken in violation of the automatic stay are void, bankruptcy
courts are authorized to validate such actions by retroactively
annulling the stay when the circumstances warrant such relief.”);
8
see also In re Crisco, 9 B.R. 641 (Bankr. S.D. Fla. 1981) (granting
a creditor’s motion for relief from the automatic stay). It chose to
do neither.
Because 21st Mortgage recorded its lien with the DHSMV in
violation of the automatic bankruptcy stay, the title certificates
bearing that lien are nullities, meaning that it is as though the
certificates proving the lien never existed. And because the title
certificates are nullities, 21st Mortgage may not rely upon them to
enforce its security interest in the mobile home against third
parties like Echo River. See § 319.27(2), Fla. Stat.
The absence of valid certificates of title that reflect a creditor’s
lien is the distinguishing feature of this case. When confronted
with a similar dispute between a real property purchaser and a
mobile home creditor, the Fourth District held that the mobile
home creditor prevailed. See Ark Real Estate Servs., Inc. v. 21st
Mortg. Corp., 300 So. 3d 1210 (Fla. 4th DCA 2020). As in this case,
the mobile home creditor in Ark was 21st Mortgage. However, in
Ark—a case which did not involve a bankruptcy petition—21st
Mortgage properly perfected its security interest by timely filing
paperwork with the DHSMV. The Ark opinion repeatedly
referenced this fact. First, it noted that the trial court entered
judgment for 21st Mortgage in part because 21st Mortgage
“perfected its lien on the mobile home according to Florida law.”
Id. at 1213. Next, it quoted section 319.27(2) for the proposition
that a lien on a mobile home is not enforceable against other
creditors and subsequent purchasers unless it is perfected via the
DHSMV’s certificate of title process. Id. at 1213–14.
The Ark Court held that because 21st Mortgage “established
its lien in the mobile home” under section 319.27(2), the mobile
home’s status as a fixture was immaterial. Id. at 1214. The Ark
Court relied extensively on Barnett Bank of Clearwater, N.A., v.
Rompon, 377 So. 2d 981 (Fla. 2d DCA 1979):
Rompon is instructive here. . . . [T]he court explained
[that] even when a mobile home becomes a fixture to real
property after a lender has financed the purchase of the
mobile home, any interest in the mobile home obtained
9
by the purchaser of the land at a Sheriff’s sale is subject
to the lender’s perfected security interest:
At the time of financing the Rompon purchase of
the mobile home, the appellant perfected its
security interest according to law. There is no
requirement that appellant reperfect its security
interest pursuant to Chapter 679 in the event
the mobile home subsequently becomes a fixture
to real property. Under the provisions of
Chapters 319 and 320, Florida Statutes,
appellees’ interest in the mobile home is subject
to appellant’s perfected security interest.
Id. at 1214–15 (quoting Rompon, 377 So. 2d at 983) (emphasis
added).
In this case, however, because it filed lien documents in
violation of the automatic bankruptcy stay, 21st Mortgage never
lawfully perfected its security interest. Accordingly, unlike the
creditors in Ark and Rompon, it does not have a lien that is
enforceable against third parties in the courts of this state. See §
319.27(2), Fla. Stat.; see also Bay Cty. Sheriff’s Office, 738 So. 2d
at 459 (“A lienholder’s interest whose lien has not been perfected
according to the requirements of section 319.27(1) is subject to
forfeiture.”) (quoting In re Forfeiture of One 1979 Chevrolet C10
Van, 490 So. 2d 240, 241 (Fla. 2d DCA 1986)).
Effect of the Foreclosure Action
As noted above, the 2006 mortgage on the Harrells’ land
contained an after-acquired property clause. Such clauses
generally allow a foreclosure action to cover not only the
mortgaged property, but also any additions to the property. Rose
v. Lurton Co., 149 So. 557, 558 (Fla. 1933) (“a mortgage on after-
acquired property of the mortgagor will be held valid, and
enforceable between the parties to it, by a suit for foreclosure.”);
Pitts v. Pastore, 561 So. 2d 297, 301 (Fla. 2d DCA 1990) (“It is well
established that one can enter into a mortgage agreement to create
a lien against property which the mortgagor will only acquire in
the future.”). When a mortgage contains an after-acquired
10
property clause, the mortgage holder’s interest in an item that is
covered by the clause is superior to a creditor’s unperfected
security interest in that item. See Regan v. ITT Indus. Credit Co.,
469 So. 2d 1387 (Fla. 1st DCA 1984) (a mortgage on a hotel, which
included an after-acquired property clause, was superior to a
creditor’s purchase money security interest in the hotel’s office
equipment if the creditor did not timely perfect its lien on the
equipment), approved, 487 So. 2d 1047 (Fla. 1986).
The Scotbilt mobile home—which the Harrells paid property
taxes on, 4 declared to be their homestead, connected to a septic
tank, and affixed to the land—qualifies as a fixture within the
scope of the after-acquired property clause. See Commercial Fin.
Co. v. Brooksville Hotel Co., 123 So. 814, 816 (Fla. 1929)
(identifying three factors for distinguishing between real property
fixtures and personal property: whether the item is physically
attached to the realty; the item’s utility as a fixture; and the
owner’s intention for the item); Strickland’s Mayport, Inc. v.
Kingsley Bank, 449 So. 2d 928, 928–29 (Fla. 1st DCA 1984) (citing
the factors from Brooksville Hotel, and noting that the “[e]xistence
of a security agreement does not necessarily preclude
characterization of an object as a fixture if other facts clearly
indicate the annexor’s intent to make a permanent accession to the
realty.”); see also § 193.075(1), Fla. Stat. (“A mobile home shall be
considered permanently affixed [for property tax purposes] if it is
tied down and connected to the normal and usual utilities.”). And
because 21st Mortgage never established a lien on the mobile home
that is enforceable in court against the claims of third parties like
Echo River, it was unprotected when the mobile home became a
fixture within the scope of the mortgage’s after-acquired property
clause.
21st Mortgage draws our attention to Section 320.015(2),
Florida Statutes (“Taxation of mobile homes”), which provides that
“any mobile home classified by a seller or a lender as personal
property at the time a security interest was granted therein to
secure an obligation shall continue to be so classified for all
4 The record reflects that 21st Mortgage paid the property
taxes using funds from the Harrells’ escrow account.
11
purposes relating to the loan and security interest, at least as long
as any part of such obligation, or any extension or renewal thereof,
remains outstanding.” 21st Mortgage argues that this statute
prevented, as a matter of law, the mobile home from becoming a
fixture to the Harrells’ land.
Subsection (1) of the statutory text describes when a mobile
home becomes real property for tax purposes. See Nordbeck v.
Wilkinson, 529 So. 2d 360 (Fla. 2d DCA 1988). Subsection (2)
provides that a mobile home’s conversion to real property for tax
purposes does not alter the mobile home’s status as personal
property “for all purposes relating to the loan and security
interest” while the loan remains outstanding. This subsection
makes clear that a debtor cannot—by declaring his mobile home to
be real property—unilaterally override the portion of his contract
with a creditor that classifies a mobile home as personal property.
However, it is less clear that this restriction universally binds
third parties, who are not signatories to the debtor’s security
agreement. See Gen. Elec. Capital Corp. v. Sohn, 566 So. 2d 841(Fla. 1st DCA 1990) (rejecting a creditor’s argument, which was
based on its security agreement with a debtor and section
320.015(2), that its security interest in a mobile home survived a
tax deed sale: “According to appellant, this part of the statute
demonstrates that even if the mobile home was taxed with the lot
as real property, the court should have found as a matter of law
that the valid outstanding security interest in the mobile home
rendered it personal property for the purpose of determining
whether such indebtedness secured by the property would survive
a valid tax deed. We disagree. . . . The fact that the contract
classified the mobile home as personal property is not
dispositive.”). Indeed, Florida has long recognized that an item
annexed to mortgaged real property can become part of the land—
regardless of the terms of a security contract between a landowner
and a creditor—if the mortgage holder does not consent to the
item’s classification as personal property. See Burbridge v.
Therrell, 148 So. 204, 206 (Fla. 1933) (“If annexation to the realty
has actually or constructively taken place, any agreement or
understanding between mortgagor and a third party that the
annexed thing shall continue to be considered as personalty, or
regarded as severed, or understood to be subject to future
12
severance from the freehold, without the consent of the mortgagee,
is unenforceable and will not be recognized as against the
mortgagee’s rights to foreclose his mortgage against the land and
its annexed improvements.”).
And here, there is no evidence that First Guaranty or
CenterState consented to or had knowledge of the Harrells’
installation of the doublewide on the mortgaged land or to the
mobile home’s classification as personal property. To the contrary,
21st Mortgage’s corporate representative acknowledged that 21st
Mortgage never notified First Guaranty or CenterState about the
mobile home loan and the agreement securing the loan. This is
consistent with the trial court’s finding in its earlier summary
judgment order that “[t]here is no evidence of record that either
the Harrells or 21st Mortgage informed the [Bankruptcy] Court or
CenterState Bank of the disposal of the old mobile home or the
installation of the new Scotbilt mobile home.” This is not
surprising given that—as we noted in the first appeal—21st
Mortgage issued the Harrells’ loan at a time when First Guaranty
had already initiated foreclosure proceedings against the
mortgaged land:
When the Harrells defaulted on their loan, First
Guaranty Bank sought to foreclose on the property.
During the pendency of the foreclosure case, the Harrells
financed the purchase of a brand new Scotbilt mobile
home for $81,000 through 21st Mortgage. The Harrells
disposed of the existing mobile home on the land and
substituted the Scotbilt mobile home in its place. Then,
they filed for bankruptcy. . . .
Neither the Harrells nor 21st Mortgage notified the
bankruptcy trustee or the bankruptcy court that the
mobile home at issue was not the old mobile home
originally on the property, but a brand new Scotbilt
mobile home recently financed for $81,000.
TSE Plantation, 301 So. 3d at 1121.
13
Moreover, the common characteristic of mobile home creditors
who prevail over competing claimants is that they all properly
perfected their liens under section 319.27. See Ark, 300 So. 3d 1210(a creditor’s perfected security interest in a mobile home survived
the foreclosure sale of the real property where the mobile home
sits); USA Fin. Servs., Inc. v. Steward, 588 So. 2d 299 (Fla. 1st DCA
1991) (a creditor’s perfected security interest in a mobile home was
superior to the holder of a final judgment imposing a constructive
trust and lien against the mobile home); Rompon, 377 So. 2d 981(a creditor’s perfected security interest survived a sheriff’s sale of
the land where the mobile home was situated). In contrast, here,
because of the bankruptcy stay as explained above, 21st Mortgage
did not properly perfect its lien under the statute.
III.
To summarize, we conclude that 21st Mortgage’s unperfected
security interest in the mobile home—which was a fixture to
mortgaged real property—did not survive the real property’s
foreclosure by CenterState Bank (Echo River’s predecessor-in-
interest). 5 Thus, on the unusual facts of this case, the trial court
erred in ruling that 21st Mortgage had a possessory interest in the
mobile home that was superior to Echo River’s. Accordingly, we
remand this case to the trial court for further proceedings
consistent with this opinion.
REVERSED and REMANDED for proceedings consistent with this
opinion.
LEWIS and BILBREY, JJ., concur.
5 This conclusion is not meant to suggest that 21st Mortgage
is somehow precluded from seeking damages from the Harrells for
the balance remaining on their loan.
14
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Thomas S. Edwards, Jr., of Edwards & Ragatz, P.A., Jacksonville,
for Appellant/Cross-Appellee.
Laura H. Mirmelli of Busch Mills & Slomka LLP, Atlanta, Georgia,
for Appellee/Cross-Appellant 21st Mortgage Corporation.
Thomas W. Thagard III of Maynard, Cooper & Gale, P.C.,
Birmingham, Alabama, pro hac vice, for Appellee/Cross-Appellant
21st Mortgage Corporation.
James C. Lester of Maynard, Cooper & Gale, P.C., Birmingham,
Alabama, pro hac vice, for Appellee/Cross-Appellant 21st Mortgage
Corporation.
15