We Help Community Development Corporation v. Ciras, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
WE HELP COMMUNITY DEVELOPMENT CORPORATION,
a Florida non-profit corporation,
Appellant,
v.
CIRAS, LLC, an Ohio limited liability company,
Appellee.
No. 4D11-1437
[July 16, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John J. Hoy and John Kastrenakes, Judges; L.T. Case No.
502010CA019667XXXXMB.
Evan B. Plotka of Evan B. Plotka, P.L., Hollywood, and Lionel Darville
of The Law Office of Lionel Darville, Belle Glade, for appellant.
Richard B. Storfer and Riley W. Cirulnick of Rice Pugatch Robinson &
Schiller, P.A., Fort Lauderdale, for appellee.
ON APPELLEE’S MOTION FOR REHEARING,
REHEARING EN BANC AND CERTIFICATION
PER CURIAM.
We grant appellee’s motion for rehearing and deny appellee’s motion for
rehearing en banc and certification. We substitute the following opinion
for our opinion issued on June 4, 2014.
The defendant appeals from the circuit court’s foreclosure judgment.
The defendant argues that, after it did not comply with the court’s order
to make payments during the pendency of the foreclosure proceedings, the
court erred in entering the foreclosure judgment instead of ordering that
the plaintiff be entitled to possession of the premises or some other method
of enforcement of the court’s payment order pursuant to section
702.10(2)(f), Florida Statutes (2010). We disagree with the defendant’s
argument and affirm.
The plaintiff filed a verified foreclosure complaint against the defendant.
The plaintiff also filed an ex-parte motion for an order directing the
defendant to show cause: (1) why a foreclosure judgment should not be
entered pursuant to section 702.10(1), Florida Statutes (2010); or (2) why
the defendant should not be required to make payments during the
pendency of the foreclosure proceedings pursuant to section 702.10(2),
Florida Statutes (2010). In 2010, sections 702.10(1) and (2) provided, in
pertinent part:
(1) After a complaint in a foreclosure proceeding has been
filed, the mortgagee may request an order to show cause for
the entry of final judgment and the court shall immediately
review the complaint. If, upon examination of the complaint,
the court finds that the complaint is verified and alleges a
cause of action to foreclose on real property, the court shall
promptly issue an order directed to the defendant to show
cause why a final judgment of foreclosure should not be
entered.
....
(b) . . . If a defendant files defenses by a motion or by a
verified or sworn answer at or before the hearing, such action
constitutes cause and precludes the entry of a final judgment
at the hearing to show cause.
....
(d) . . . If the court finds that the defendant has not shown
cause, the court shall promptly enter a judgment of
foreclosure.
(2) In an action for foreclosure, . . . the mortgagee may
request that the court enter an order directing the mortgagor
defendant to show cause why an order to make payments
during the pendency of the foreclosure proceedings or an
order to vacate the premises should not be entered.
....
(d) . . . [T]he court shall, at the hearing on the order to show
cause, consider the affidavits and other showings made by the
parties appearing and make a determination of the probable
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validity of the underlying claim alleged against the mortgagor
and the mortgagor’s defenses. If the court determines that the
mortgagee is likely to prevail in the foreclosure action, the
court shall enter an order requiring the mortgagor to make the
payment described in paragraph (e) to the mortgagee and
provide for a remedy as described in paragraph (f).
....
(f) In the event the court enters an order requiring payments
the order shall also provide that the mortgagee shall be
entitled to possession of the premises upon the failure of the
mortgagor to make the payment required in the order unless
at the hearing on the order to show cause the court finds good
cause to order some other method of enforcement of its order.
§ 702.10, Fla. Stat. (2010).1
The court entered the order to show cause as to both sections 702.10(1)
and (2). In response, the defendant filed a motion to dismiss on various
grounds. The defendant also filed two affidavits alleging why the court
should not enter a final judgment of foreclosure and should not enter an
order to make payments during the pendency of the foreclosure
proceedings.
After a hearing, the court entered an order denying the defendant’s
motion to dismiss. The defendant then filed its answer and affirmative
defenses contesting the foreclosure on various grounds.
After the defendant filed its answer and affirmative defenses, the court
entered an order directing the defendant to make payments during the
pendency of the foreclosure proceedings pursuant to section 702.10(2). In
the order, the court did not state any finding that the defendant had not
shown cause why the court should not enter a foreclosure judgment
pursuant to section 702.10(1). However, the order nevertheless provided
that if the defendant failed to make the payments, then the plaintiff was
“entitled to submit an ex parte affidavit . . . and to take possession of the
premises and to the entry of a Final Judgment of Foreclosure . . . without
further hearing.” (emphasis added).
1 In 2013, the Legislature amended section 702.10. Subsection (2) now
provides that the payment remedy provided therein is “in addition to any other
relief that the court may award.” See Ch. 2013-137, § 6, Laws of Fla., effective
June 7, 2013.
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The plaintiff later filed a verified motion for entry of a foreclosure
judgment against the defendant. According to the motion, the defendant
did not comply with the payment order. The court entered the foreclosure
judgment against the defendant.
Shortly thereafter, the defendant filed a motion to vacate the foreclosure
judgment. The defendant argued that the court’s order directing it to make
payments during the pendency of the foreclosure proceedings was
deficient because the court did not first determine that the plaintiff was
likely to prevail in the foreclosure action pursuant to section 702.10(2)(d).
The court denied the motion on the ground it was implicit within the order
directing payments that the plaintiff was likely to prevail in the foreclosure
action.
The defendant then filed a motion for rehearing. In that motion, the
defendant argued that, after it did not comply with the payment order, the
court erred in entering the foreclosure judgment instead of ordering that
the plaintiff be entitled to possession of the premises pursuant to section
702.10(2)(f). According to the defendant, “Nothing within [section
702.10(2)(f)] permits the entry of a Judgment of Foreclosure . . . .” The
court denied the motion for rehearing.
This appeal followed. The defendant raises several arguments, but we
choose to address only its argument that, after it did not comply with the
payment order, the court erred in entering the foreclosure judgment
instead of ordering that the plaintiff be entitled to possession of the
premises pursuant to section 702.10(2)(f). In response, the plaintiff argues
that section 702.10(2)(f)’s reference to “some other method of enforcement”
of the circuit court’s payment order includes the entry of a foreclosure
judgment.
Because the parties’ arguments turn on an interpretation of section
702.10(2)(f), our standard of review is de novo. See State v. S.M., 131 So.
3d 780, 785 (Fla. 2013) (“Judicial interpretations of statutes are pure
questions of law subject to de novo review.”) (citation and quotation marks
omitted).
We conclude that section 702.10(2)(f) allows a plaintiff to obtain a
foreclosure judgment upon a defendant’s failure to comply with a payment
order entered pursuant to section 702.10(2)(d). We agree with the
plaintiff’s argument that section 702.10(2)(f)’s reference to “some other
method of enforcement” of the circuit court’s payment order includes the
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entry of a foreclosure judgment. What better way to sanction a mortgagor
for non-payment than to foreclose on the property?
Our conclusion is consistent with section 702.10(1)’s provision for an
expedited method for handling foreclosure actions. Our conclusion also is
consistent with the 2013 amendment to section 702.10. Subsection (2)
now provides that the payment remedy provided therein is “in addition to
any other relief that the court may award.” See Ch. 2013-137, § 6, Laws
of Fla. This amendment indicates the original intent of section 702.10(2)(f)
to allow a plaintiff to obtain a foreclosure judgment upon a defendant’s
failure to comply with a payment order entered pursuant to section
702.10(2)(d). See D & T Props., Inc. v. Marina Grande Assocs., Ltd., 985
So. 2d 43, 47 (Fla. 4th DCA 2008) (“Where the legislature expressly
characterizes the intent of legislation, it is especially appropriate to
consider the amended statute to determine the original legislative intent
of the statute.”); see also Ch. 2013-137, § 8, Laws of Fla. (“[T]he
amendments to s. 702.10, Florida Statutes, . . . by this act, apply to causes
of action pending on the effective date of this act.”).
We find nothing in subsection (2) to prevent the court from entering a
final judgment of foreclosure. After all, before the court can enter an order
requiring payments, the court must have determined the lienholder is
likely to prevail on its foreclosure action. And allowing for immediate
possession of the premises as a sanction for non-payment could be viewed
as harsher than the final judgment of foreclosure. In the ordinary
foreclosure, the lienholder more often than not has to obtain a foreclosure
judgment and proceed to a judicial sale before getting possession of the
premises. Having given the mortgagor an opportunity to pay the mortgage
during the pendency of the foreclosure, all bets are off if the mortgagor
fails to pay. It is also significant to note that these remedies do not apply
to owner-occupied residential real estate.
Based on the foregoing, we affirm the court’s denial of the defendant’s
motion to vacate the foreclosure judgment. We conclude without further
discussion that the defendant’s other arguments on appeal lack merit.
Affirmed.
STEVENSON, MAY and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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