FOUNTAINSPRING II HOMEOWNERS ASSOCIATION, INC., A FLORIDA NOT-FOR-PROFIT CORPORATION, APPELLANT,
v.
RICARDO O. VELIZ, JAGODA A. VELIZ, FOUNTAINSPRING MASTER HOMEOWNERS ASSOCIATION, INC., AND UNKNOWN TENANT, APPELLEES
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A homeowners association challenged a trial court's decision to vacate a foreclosure judgment on the grounds of lack of jurisdiction. The Fourth District Court of Appeal reversed, holding that the association's lien, which related back to 1989 under its Declaration of Covenants, predated a bank's mortgage foreclosure notice of lis pendens, and therefore the association's foreclosure action was not barred.
The court held that the trial court erred in determining it lacked jurisdiction. Because the association's lien related back to its 1989 Declaration of Covenants, which predated the bank's notice of lis pendens, the association's foreclosure action was not barred and the trial court properly had jurisdiction to enter the foreclosure judgment.
[1] A trial court errs in determining it lacks jurisdiction to enter a judgment of foreclosure when the association's claim of lien predates a prior mortgagee's notice of lis…
[2] A homeowners association's lien for delinquent assessments, imposed under a declaration of covenants recorded before a first mortgagee recorded its notice of lis pendens,…
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Join FLexlaw to unlock all legal intelligence“A lien is hereby imposed upon each Lot to secure the payment of all Assessments now or hereafter imposed .... Such lien shall relate back to and be effective from the date hereof ....”
Language from the association's Declaration of Covenants showing the lien's relation-back provision, establishing that the lien was effective from 1989
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Join FLexlaw to unlock all legal intelligenceIn 2009, a mortgagee-bank filed a mortgage foreclosure action and recorded a notice of lis pendens, naming the association as a defendant. In 2011, wh…
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Fountainspring II Homeowners Association, Inc. (“the association”) challenges an order vacating a final judgment of foreclosure and dismissing its foreclosure action for lack of jurisdiction. We find that the trial court erred in determining that it lacked jurisdiction and we therefore reverse.
In 2009, a mortgagee-bank that is not a party to the instant action brought an action to foreclose its interest in the property at issue. In connection with that suit, it recorded a notice of lis pendens. The association was named as a defendant in the bank’s suit.
In 2011, while the mortgage foreclosure action was pending, the association recorded two claims of lien for delinquent assessments and brought an action to foreclose the liens. A final judgment of foreclosure was entered in the association’s action and the property was sold to a third party purchaser. Sometime later, apparently having discovered the mortgage foreclosure action, the purchaser moved to set aside the judgment of foreclosure, certificate of title, and certificate of sale. The trial court determined that, due to the bank’s pending foreclosure action, it was without jurisdiction to have entered judgment in the association’s case, and it granted the purchaser’s motion and dismissed the action.
On appeal, the association argues that its claim of lien dates back to 1989, when its “Declaration of Covenants” was recorded, as the Declaration provides, “A lien is hereby imposed upon each Lot to secure the payment of all Assessments now or hereafter imposed .... Such lien shall relate back to and be effective from the date hereof .... ” The association contends that because its claim of lien predates the bank’s notice of lis pendens, its subsequent foreclosure action was not barred.
We agree with the association. Since its claim of lien dated back to its 1989 Declaration, its recorded interest predated the bank’s notice of lis pendens. Thus, the foreclosure action instituted to pursue the association’s claim is not precluded by the bank’s pending foreclosure action. Our holding is consistent with this court’s recent opinion in Jallali v. Knightsbridge Vill. Homeowners Ass’n, No. 4D15-2036, 211 So.3d 216, 2017 WL 34567 (Fla. 4th DCA Jan. 4, 2017), in which we held:
[T]he filing of a notice of lis pendens by a first mortgagee does not bar the foreclosure of an association’s subsequent lien for unpaid assessments against the ownei-, although that action is inferior to the foreclosure of the first mortgage, where the association’s subsequent lien was imposed under the association’s declaration of covenants recorded before the first mortgagee recorded its notice of lis pendens.
The trial court’s determination that it lacked jurisdiction was erroneous. We therefore reverse and remand for reinstatement of the final judgment.
Reversed and remanded.
Conner and Forst, JJ., concur.
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