BANKERS LENDING SERVICES, INC., PETITIONER,
v.
REGENTS PARK INVESTMENTS, LLC, RESPONDENT

Fla. 3d DCA | 2017-06-28
No. 3D17-439
Before SALTER, FERNANDEZ and LUCK, JJ.
225 So. 3d 884 Florida District Court of Appeal, Third District (2017) Positive Treatment
Cited by 11 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Bankers Lending sought a writ of certiorari to quash an order denying its motion to require a bond as a condition for reinstatement of a lis pendens filed by Regents Park Investments. The Florida Third District Court of Appeal held that Bankers Lending was entitled to an evidentiary hearing to prove prospective loss or damage from the lis pendens before the trial court could summarily deny the bond motion.


Holding

The trial court abused its discretion by summarily denying the lis pendens bond motion without an evidentiary hearing. Bankers Lending had standing to move for a bond and the right to prove at an evidentiary hearing its potential loss or damage from the lis pendens, particularly during the period when it held ownership rights in the property.


Headnotes

[1] A trial court has broad discretion to require a bond for a notice of lis pendens not based on a duly recorded instrument.

[2] A party seeking a lis pendens bond must demonstrate that damages or injury will likely be suffered from the lis pendens.

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Key Quotes

“the trial court has the discretion to deny a lis pendens bond in such a circumstance, rejecting 'the interpretation that [the] statutory reference to injunctions [in section 48.23(3), Florida Statutes (1995)] requires the lis-pendens proponent to post a bond in every case.'”

Establishes that while trial courts have discretion regarding lis pendens bonds, this discretion is not absolute and must follow essential legal requirements.

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Facts & Procedural History

Regents Park Investments filed a specific performance claim against Bankers Lending for real estate parcels and filed a lis pendens. The trial court d…

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Opinion of the Court
SALTER, J.

SALTER, J.

Bankers Lending Services, Inc. (“Bankers Lending”), seeks a writ of certiorari quashing an order denying Bankers Lending’s motion to require a bond as a condition for reinstatement of a lis pendens. Finding Bankers Lending’s petition well taken, we quash the order.

*885Procedural History

This case originated with Regents’ (the buyer’s) claim for specific performance of a contract to buy several real estate parcels from Bankers Lending. When the transaction failed to close, Regents filed its lawsuit and a lis pendens encumbering the parcels.1 The trial court granted Bankers Lending’s motion to discharge the lis pen-dens, but we reversed and remanded the case with an instruction to reinstate the lis pendens. Regents Park Invs. v. Bankers Lending Servs., Inc., 197 So.3d 617 (Fla. 3d DCA 2016) (“Regents I”).

On remand, the trial court granted Regents’ motion to reinstate the lis pendens, but denied Bankers Lending’s cross-motion for an evidentiary hearing to consider whether a lis pendens bond should be required and, if so, to set the amount of the bond. Bankers Lending’s petition for cer-tiorari followed.

Analysis

Regents’ response to the petition and its argument to the trial court was that Bankers Lending no longer owned the property and thus could suffer no harm. On that basis, Regents argued that the trial court should exercise its discretion and deny the motion for a lis pendens bond. Between the time the lis pendens was discharged by the trial court in February 2016 and our reversal of that order in July 2016 (Regents I, 197 So.3d at 622), a non-party lender to Bankers Lending, Infill Development Lenders, LLC (“Infill”), recorded a quitclaim deed to the parcels in dispute. The quitclaim deed, though dated July 1, 2012, was recorded by Infill in April 2016 as part of its mortgage loan and forbearance, agreement with Bankers Lending.

Citing Penabad v. A.G. Gladstone Associates, Inc., 823 So.2d 146 (Fla. 3d DCA 2002), Regents persuaded the trial court that Infill, not Bankers Lending, was the owner and no bond should be required as a condition of reinstating the lis pendens. The trial court thus granted Regents’ motion to reinstate the lis pendens as of the date filed in August 2015, but denied Bankers Lending’s cross-motion to require a lis pendens bond.

Although we have also reviewed orders granting or discharging a lis pendens, and orders relating to lis pendens bonds, as appealable non-final orders under Florida- Rule of Appellate Procedure 9.130(a)(3)(B), we. have more recently agreed with the other Florida district courts of appeal “that certiorari is the appropriate procedure for the review of such an-order.” 100 Lincoln Rd SB, LLC v. Daxan 26 (FL), LLC, 180 So.3d 134, 136 (Fla. 3d DCA 2015). Applying that standard to the case at hand, we conclude that Bankers Lending had standing to move for a lis pendens bond and.to provide proof at an evidentiary .hearing of “potential loss or damage she or he will likely incur if the notice of lis pendens is unjustified.” Licea v. Anllo, 691 So.2d 29, 30 (Fla. 3d DCA 1997); see also, Med. Facilities Dev., Inc., v. Little Arch Creek Props. Inc., 675 So.2d 915, 917-18 (Fla. 1996) (“We agree with Judge Barkdull’s statement that the property-holder defendant’s right to a bond should be conditioned upon a demonstration of the potential loss or damage the defendant will likely incur if the notice of lis pendens is unjustified.”).

The case law also recognizes, however, that the trial court has the discretion to deny a lis pendens bond in such a circumstance, rejecting “the interpretation that *886the statutory reference to injunctions [in section 48.23(3), Florida Statutes (1995)] requires the lis-pendens proponent to post a bond in every case.” 675 So.2d at 918. The issue presented here is whether that discretion may be exercised without affording a party an evideñtiary hearing after prospective damages have been proffered.

During the period from the filing of the original lis pendens "(August 2015) and the recordation of the deed ■■ divesting Bankers Lending of title (April 2016), the lis pendens may have caused Bankers Lending to incur loss or damage,2 as that was a time when Bankers Lending had “ownership rights in the property.” FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So.3d 905, 909 (Fla. 4th DCA 2010) (citing Penabad, 823 So.2d at 147). Further, Bankers Lending’s original motion recited (and Regents did not dispute the recital) that “[t]he parties have agreed that a separate hearing will determine the amount of the bond.” Here, after reinstating the lis pendens, the trial court summarily denied Bankers Lending’s motion for a lis pendens bond without affording Bankers Lending an evidentiary hearing to prove its prospective loss or damage resulting from the lis pendens.

Having shown a departure from the essential requirements of law that will cause material injury if the lis pendens is subsequently shown to have been unjustified, and “effectively leaving no adequate remedy on appeal,” Bankers Lending is entitled to the issuance of the writ. Martin-Johnson, Inc., v. Savage, 509 So.2d 1097, 1099 (Fla. 1987).

We grant the petition and quash the order denying Bankers Lending’s motion for a lis pendens bond. We express no opinion regarding Bankers Lending’s ability to meet its burden to prove at an evi-dentiary hearing its loss or damage likely to be incurred if Bankers Lending ultimately proves that the lis pendens was unjustified. In the event the trial court finds that a lis pendens bond is appropriate, the court may condition the continued existence and' effectiveness of the lis pen-dens upon the filing of the bond.

Petition granted; order quashed.


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Citator

Cited By

  • Senia Rodriguez v. Guerra, 254 So. 3d 521 (Fla. 3d DCA 2018)
    …icate that the appropriate procedure for reviewing non-final orders granting or discharging a lis pendens, and non-final orders relating to lis pendens bonds, is via a certiorari petition. See Bankers Lending Servs., Inc. v. Regents Park Invs., LLC, 225 So. 3d 884, 885 (Fla. 3d DCA 2017) ; 100 Lincoln Rd. SB, LLC v. Daxan 26 (FL), LLC, 180 So. 3d 134, 136 (Fla. 3d DCA 2015). These recent decisions, though, did not abrogate prior decisions of this Court concluding that we have appellate jurisdiction to review…
  • Nieto Villamizar v. Luna Cap. P'rs, 43 Fla. L. Weekly D900 (Fla. 3d DCA 2018)
    …onnection with such notices, are more appropriately reviewed via certiorari rather than as injunction-like non-final orders appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(B). Bankers Lending Servs., Inc. v. Regents Park Inv., LLC, 225 So. 3d 884, 885 (Fla. 3d DCA 2017). Our own decisions on the point, however, “did not abrogate prior decisions of this Court concluding that we have appellate jurisdiction to review such non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(B…
  • Delta Aggregate, LLC v. Hermes Hialeah Warehouse, LLC, 266 So. 3d 248 (Fla. 4th DCA 2019)
    …(Fla. 3d DCA 2018); see also Rodriguez v. Guerra, 254 So. 3d 521, 521 n.1 (Fla. 3d DCA 2018) (recognizing that prior decisions indicated that certiorari was appropriate to review such orders); Bankers Lending Servs., Inc. v. Regents Park Inv., LLC, 225 So. 3d 884, 885 (Fla. 3d DCA 2017) (noting that prior non-final review was based on Rule - 2 - While a claim for an equitable lien can support a lis pendens, it must be founded either upon a duly recorded instrument or a fair nexus between the apparent legal…

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