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Florida Power of Attorney

Florida’s Foreclosure Crisis Created a Vast Body of New Law…And Much of It Isn’t Good

(for municipalities, citizens….anyone….except the banks)

One of the most frustrating aspects of code enforcement cases are those areas where there can be no code enforcement….this is especially maddening in those cases where banks have filed foreclosure and then abandoned or allowed their foreclosure to stall out for years. The problem for neighbors and code enforcement is that any lien recorded after the lis pendens is filed does not attach so we’ve got little practical ability to collect on those liens as part of the foreclosure case.  But there are a few tips to keep in mind that may assist with successful enforcement of the code.

Code Liens Are NOT SUPERIOR

The first key element is understanding what a Lis Pendens is. Lis Pendens means “Notice of Litigation” and nearly every foreclosure case begins with the RECORDING of a lis pendens. The legal concept associated with a lis pendens is that acts as an injunction as to all future recordings post lis pendens. Now there are so many key details that have to be unpacked and examined surrounding that lis pendens. First, is it actually recorded? I’ve seen many cases where it’s not actually recorded…but only filed. Subsequent liens are only barred if the lis pendens is actually recorded. Next, does the lis pendens actually correctly describe the property. Again, I’ve seen many instances where there are errors in the lis pendens that make it invalid as to subsequent liens.

But assuming the lis pendens is correct and we’ve got an active code case “Post LP”, we’ve still got some very powerful enforcement tools…but the must be correctly implemented. The case below explains in detail a problem repeated over and over. A foreclosure filed in 2007….but Bank of America played games and didn’t get a foreclosure auction until 2012. Now the truly bonkers thing about the Ober case is that the homeowner in the foreclosure case…DIDN’T FILE THE FIRST THING TO DEFEND THE FORECLOSURE! Just stop and think about that for a few minutes….it took Bank of America nearly five years to complete their foreclosure, meanwhile the community was forced to deal with a blighted property and a costly code enforcement case…only to see all the liens wiped out and no ability to recover costs….all because Bank of America couldn’t or didn’t want to pursue their own foreclosure case. Even more nutty is the fact that when I did a simple name search of the owner of the property, “Hannelore Heiden”, I found that the bank was apparently actively participating in other code enforcement cases at the very time this was all going on!  (Just take a look here at this link.)

Code Liens Are NOT SUPERIOR: Ober v. Town of Lauderdale

LIKE SO MUCH OF WHAT HAPPENS IN COURT CASES, YOU NEVER REALLY KNOW THE DETAILS…YOU NEVER UNDERSTAND WHAT REALLY HAPPENED WITHOUT TAKING A REAL DEEP DIVE INTO THE FACTS….SO HERE GOES:

First, read what the agent for Bank of America had to say when they appeared before the code enforcement board asking for a lien reduction:

This lien is for property installing Garage door without permit Notice of original Violation was issued
September 19 2008 Certificate of Title was given to Bank of New York 11/22/11 and recorded 12/2/11. The
amount of time from the original Violation and compliance by the bank was 3 years and 5 months but the bank
did not have control of the property until the past few months Once we took over the property on behalf of the
bank we advised them of this lien against the former owner The bank was not in possession of the property at
the time the violation and liens were put on the property It was not the responsibility of the bank to bring the
matter into compliance until they were in Possession of the Certificate of Title Once the bank was in possession
and the property assigned to us we were in contact with the City and code officer Touchette Torres and worked
with her to bring this matter into compliance as soon as we could in a reasonable length of time Im sure by
you having discussions with her she will advise you how we were doing everything to cooperate with the City
We also brim to your attention that the former owner had left personal belongings in the property and we had to
take the time to go through the necessary procedures to try to contact her about the personal property in the
dwelling Certified Registered and Return Receipt letters had to be sent out to former owner advising
er that if possessions were not removed and release for the personal property was not returned possessions would be
moved out We received the signed Return Receipt but were not sent the release Consideration was given to
demolishing the building and then bids were obtained for the sewer hook up and approval were Given to hook
up sewer and brim into compliance This was the last item to be brought into compliance as we were attempting
to get an answer from the City as to whether demolition would bring property into compliance on all matters
We were never given a proper answer from the City and therefore moved forward to bring each violation into
compliance as quickly as they could be done Expenses were incurred in the amount of to complete the
removal of garage door and plywood debris enclosing carport It is evident that all violation were during the
time that former owner still owned the property and her negligence should be considered in relief of the fines
we are requesting to be reduced since bank has been in possession for such short time

And then, if you really want to go down the rabbit hole…read the complaint filed by the subsequent owner:

OberComplaint

OberStrike

Now, diving even deeper…far beyond rabbit holes and understanding that the name “Hannelore Heiden” is the true offender behind what may be one of the very worst code enforcement cases in the entire history of the State of Florida. The truly interesting thing….

ATTENTION BROWARD COUNTY AND LAUDERDALE BY THE SEA CODE ENFORCEMENT…IT APPEARS THAT HEIDEN OWNS PROPERTY IN VOLUSIA COUNTY, FLORIDA!!! Why not step in and collect those underlying code enforcement judgments and fees from the original violator?

See here, search from Volusia County:

424305000246
HEIDEN HANNELORE
151 SCITUATE LN
HOLLY HILL
0100
530501190030
HEIDEN HANNELORE EST
925 N PENINSULA DR
DAYTONA BEACH
0100
424250040240
HEIDEN HANNELORE
175 14TH ST
HOLLY HILL
010

And see active cases from Broward County:

HEIDEN

And so now, without further adieu, please read the details on this case:

Background

On November 26, 2007, a bank, which is not a party in this lawsuit, recorded a lis pendens on certain property as part of a foreclosure lawsuit against a homeowner, also not a party in this case. On September 22, 2008, the bank obtained a final judgment of foreclosure. From July 13, 2009 through October 27, 2011, appellee Town of Lauderdale-by-the-Sea, recorded seven liens on the subject property related to various code violations occurring after the entry of the final judgment.

On September 27, 2012, the bank purchased the property at a foreclosure sale. It later sold the property to Ober.

Ober filed suit to quiet title, attempting to strike the liens against his property. The Town’s counterclaim sought to foreclose the liens. The trial court granted the Town’s motion, denied Ober’s motion, and entered a final judgment of foreclosure on the seven liens recorded prior to the judicial sale, as well as on three liens imposed after the sale of the property. Ober does not argue that those three post-judicial sale liens were discharged, and on remand the trial court may enter judgment on them.

Analysis

Insofar as this case concerns the interpretation of a statute, the standard of review is de novo. Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 954*9542011). Section 48.23(1)(d) states, in pertinent part:

[T]he recording of … notice of lis pendens… constitutes a bar to the enforcement against the property described in the notice of allinterests and liens … unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in the notice, the property shall be forever discharged from all such unrecorded interests and liens.

(Emphasis added).

We reject the Town’s argument that the statute applies only to liens existing or accruing prior to the date of the final judgment. The language of the statute is broad, applying to “all interests and liens.” Significantly, the statute expressly contemplates that its preclusive operation continues through a “judicial sale.” This is consistent with how foreclosure suits operate in the real world. As the amicus brief of the Florida Bankers Association points out, foreclosures are unlike many civil lawsuits in that “much remains to be accomplished after entry of final judgment, including the foreclosure sale, the issuance of certificates of sale and title, and, in many instances, the prosecution of a deficiency claim, all under court supervision.” In a foreclosure lawsuit, the final judgment is not the end of the road, but merely a way station to the final result. See Park Fin. of Broward, Inc. v. Jones,94 So.3d 617, 618 (Fla. 4th DCA 2011) (stating that mortgage foreclosure actions are different from typical civil actions).

A proper reading of section 48.23(1)(d) is, as the Florida Land Title Association suggests, that “when a foreclosure action is prosecuted to a judicial sale, that sale discharges all liens, whether recorded before the final judgment or after, if the lienor does not intervene in the action within 30 days” after the recording of the notice of lis pendens.

This view is in accord with Form 1.996(a) of the Florida Rules of Civil Procedure. The form provides a sample foreclosure judgment, with a provision stating:

On filing the certificate of sale, defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property…, except as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any.

As the Business Law Section of the Florida Bar notes, this form reflects the common understanding of the operation of the lis pendens statute. See Hancock Advert., Inc. v. Dep’t of Transp., 549 So.2d 1086, 1089 (Fla. 3rd DCA 1989)(holding that the court is “entitled to consider” the “practical construction which has in fact been adopted by the industry” when dealing with a statutory interpretation issue). The form was first adopted in 1971. See In re Fla. Rules of Civil Procedure,253 So.2d 404, 419 (Fla. 1971). It has been reviewed and revised by the Florida Supreme Court since 1971, most recently in January 2016. See In re Amendments to Fla. Rules of Civil Procedure, 190 So.3d 999 (Fla. 2016). The January 2016 revisions maintained the language quoted above. Id. at 1010.

Conclusion

The practical problem in this case is the long lag time between the foreclosure judgment and the foreclosure sale. Resolution of the competing interests — of the Town, the lending and title insurance industries, property owners, and buyers atforeclosure sales — is in the province of the legislature.

We reverse the final judgment and remand to the circuit court for further proceedings.

Gross, Forst and Klingensmith, JJ., concur.

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