In short: In Weiss v. BI 27, LLC (2023) the Third District reversed summary judgments for two mortgage lenders. The lenders argued that because the plaintiffs’ lis pendens had been discharged, section 48.23 let them take free of the fraud claims. The court held the statute did not apply here and fact disputes over fraud required a trial.
The Facts
This appeal grew out of a family dispute after the death of Jack Weiss. The plaintiffs sued to quiet title to three properties near Miami International Airport, alleging that Caroline Weiss had fraudulently moved the properties through sham corporations. They recorded a notice of lis pendens, but the trial court discharged it when they did not post a $2 million bond.
After the discharge, Caroline Weiss mortgaged the properties for $5 million to Elite Construction Management, a party to the lawsuit. That mortgage was assigned several times, ending with BI 27, LLC and then TIG Romspen US Master Mortgage, which later made a $21.3 million loan on the properties. The plaintiffs claimed the mortgage lacked consideration and that Elite knew Weiss had no authority to encumber the land.
BI 27 won partial summary judgment by arguing that section 48.23 protected it, because it acquired its lien after the lis pendens was discharged. In a separate suit, TIG obtained dismissal and discharge of a second lis pendens on res judicata grounds. The plaintiffs appealed both rulings.
The Decision
The Third District reversed and remanded. On rehearing, it withdrew an October 2023 opinion and issued a substituted opinion on December 13, 2023 (Judge Miller, joined by Judges Emas and Bokor). It held the lis pendens statute did not resolve the case for two reasons. First, the statute’s protection is generally for non-parties, and both lenders took their interests from Elite, which was a party. Second, the plaintiffs asserted a claim to the property itself, alleging the deeds were fraudulent and the mortgagee acted in bad faith, not merely a dispute over lien priority.
The court noted that a deed procured by fraud in the execution is void and a forged mortgage is a nullity, giving no protection to those who claim under it. Because the plaintiffs offered substantial evidence and the lender disputed it, there were genuine fact issues, and summary judgment was improper. The court left open whether the claims were founded on recorded instruments, calling that question unsettled.
The Law
section 48.23(1)(b) says that a person who acquires an interest or lien for value during a lawsuit, and who is not a party or a party’s successor, takes free of the lawsuit’s claims if the plaintiff’s notice of lis pendens was never recorded or was withdrawn, discharged or expired. The protection applies even if the buyer or lender knew of the suit. The statute was rewritten in 2009 and amended again in 2019.
Florida common law separates void deeds from voidable ones. A forged deed, or one procured by fraud in the execution, is void and passes nothing, even to a good-faith buyer or lender. A deed procured by fraud in the inducement is generally voidable and can be cut off by a bona fide purchaser. Summary judgment, now under the federal-style standard of Florida Rule of Civil Procedure 1.510, is improper where material facts are genuinely disputed.
Current law (2026): Section 48.23(1)(b) checked on flsenate.gov (2026): non-party purchaser/lienholder for value takes free of claims where notice was not recorded or was withdrawn, discharged, or expired; amended 2009 and 2019. Opinion applied the 2020 version.
Lessons
- Losing a lis pendens for failure to post a bond is serious, but it does not end every claim against later lenders.
- Lenders who take a mortgage from, or through, a party to the lawsuit should not assume section 48.23 protects them.
- Whether a deed is void or merely voidable can decide whether a later mortgage survives. Plead and prove the type of fraud carefully.
- Title insurers and lenders should check the docket, not just the recorded lis pendens, before closing on disputed property.
Source: Weiss v. BI 27, LLC, No. 3D22-0453 & 3D22-1468 — Fla. 3d DCA (December 13, 2023).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Can a Mortgage Survive If the Signer Never Owned the Property? | Weiss v. BI 27
Go Deeper
- Deed Fraud in Florida: How Homes Are Stolen on Paper and How to Get Them Back
- Served With a Foreclosure Lawsuit in Florida? The 20-Day Answer and the Lis Pendens
Frequently Asked Questions
Does a discharged lis pendens mean a buyer or lender takes free of the lawsuit?
Often, but not always. Section 48.23(1)(b) generally protects non-party purchasers and lenders for value when the notice was discharged. In Weiss v. BI 27, the Third District held that protection did not apply to lenders who took through a party to the suit, where the claim was a fraud-based claim to the property itself.
Is a forged deed void in Florida?
Yes. Florida courts treat a forged deed, and a deed procured by fraud in the execution, as void. It passes no title, so people who claim through it, including later lenders, generally get no protection even if they acted in good faith.
What is the difference between a void and voidable deed?
A void deed, such as a forgery, has no legal effect from the start. A voidable deed, such as one obtained by misrepresentations about the deal, is valid until set aside and can be cut off if the property passes to a good-faith purchaser for value without notice.
Why would a court require a bond to keep a lis pendens?
When a lawsuit is not based on a recorded instrument, the court controls the lis pendens and may require a bond to protect the owner from damages if the claim fails. If the plaintiff does not post the bond, the court can discharge the notice, as happened in the Weiss case.
Talk to a Florida foreclosure defense lawyer
Weidner Law, P.A. has defended Florida homeowners in foreclosure and foreclosure appeals for more than 25 years. If you need a foreclosure defense lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
