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IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
WELLS FARGO BANK, N.A., CASE NO.: 502008CA002855XXXXMB AW
; 2
Plaintiff,
v.
STEPHEN V. REED, et al.,
Defendants.
DEFENDANT VILLAGE AT ABACOA CONDOMINIUM ASSOCIATION, INC.’S MOTION TO
COMPEL PLAINTIFF TO PROCEED WITH FORECLOSURE
Defendant, The Village at Abacoa Condominium Association, Inc. (“Association”), moves
this Court for an Order compelling plaintiff to proceed with its foreclosure proceeding and as
grounds states as follows:
Hl Plaintiff, Wells Fargo Bank, N.A., is the holder of a first mortgage (“Mortgage”)
secured by residential real property which is within the Association. Defendant Stephen Z.
Reed was the owner of the property at the time the mortgage was obtained who pledged the
mortgage to plaintiff (“Reed”).
2. Reed defaulted in the payment of assessments to the Association and the
assessments continue to accrue.
3. Plaintiff initiated this foreclosure action in January 2008.
4. As of the date of this motion, Plaintiff has not proceeded to conclude its case with
a foreclosure sale although plaintiff filed its motion for summary judgment on April 15, 2009.
5. In the event Plaintiff forecloses the property and is the successful bidder at the
foreclosure sale, Plaintiff would only be liable to the Association for the lesser of the
assessments owed to the Association for the 6 months immediately preceding the acquisition of
title, or 1% of the original mortgage debt. § 716.116, Fla. Stat. (2009). Subsequent to the
acquisition of title, Plaintiff will be liable for the periodic assessments as they are due.6. In the current real estate market, it is unlikely that anyone will purchase the
property at a foreclosure sale, considering that any purchaser will take title to the property
subject to the mortgage and the assessments owed to the Association.
7. Therefore, it is in Plaintiff's best interest to delay the foreclosure sale, so as to
limit the amount of assessments it will have to pay the Association in and when Plaintiff acquires
title to the property.
8. The Association’s only other relief is to foreclose its subordinate lien though, as
stated above, it is unlikely that anyone will purchase the property at an association lien
foreclosure sale because any purchaser will take title to the property subject to the Mortgage
and the assessments owed to the Association.
9. Plaintiff's postponement of its foreclosure action serves only to benefit the
Plaintiff while the delay materially harms the remaining assessment-paying members of the
Association who are required to carry the financial burden caused by the delinquent
assessments and the monthly regular and special assessments as they come due.
10. Plaintiff has no remedy at law to avoid this injustice.
11. The legislative intent of sections 718.116(1)(b) and 720.3085, Florida Statutes,
was to protect condominium and homeowners associations from mortgage holders who are
reluctant to foreclose their mortgages secured by delinquent condominium units because of the
obligations to pay the assessments once the mortgagee takes title to the property.
12. In a case involving similar issues, the Fifth District Court of Appeal held that a
trial court, in the exercise of its equitable powers, can compel a mortgage holder to either
proceed with a foreclosure sale or to pay the condominium association's monthly assessments.
F.D.LC. v. Venture Corp. of Sarasota, Inc., 622.S0.2d 581, 582 (en DCA 1993).
WHEREFORE, for the reasons stated above defendant the Village of Abacoa
Condominium Association, Inc., through its undersigned counsel, respectfully requests an order
compelling plaintiff to proceed with the foreclosure as soon as possible.JECK, HARRIS, RAYNOR & JONES, P.A.
Attorney for Defendant The Village of
Abacoa Condominium Association, Inc.
Walk, Suite 600
/ 33408
(561) 46-1002 (voice)
(561) 747-4113 (fax)
giones@jhripa.com
Florida Bar No. 716898
CERIFICATE OF SERVICE
| hereby certify that a true copy of the foregoing motion has been furnished to the partiesMAILING LIST
CASE NO.: 502008CA002855XXXXMB
Stephen Z. Reed
1152 University Drive, #21
Jupiter, FL 33458
Rebecca Nilsen, Esquire
Law Offices of Marshall C. Watson, P.A.
1800 N.W. 49" Street, Suite 120
Ft. Lauderdale, FL 33309
Mark A. Olivera, Esquire
Kahane & Associates, P.A.
8201 Peters Road, Suite 3000
Plantation, FL 33324-3292
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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA WELLS FARGO BANK, N.A., CASE NO.: 502008CA002855XXXXMB AW ; 2 Plaintiff, v. STEPHEN V. REED, et al., Defendants. DEFENDANT VILLAGE AT ABACOA CONDOMINIUM ASSOCIATION, INC.’S MOTION TO COMPEL PLAINTIFF TO PROCEED WITH FORECLOSURE Defendant, The Village at Abacoa Condominium Association, Inc. (“Association”), moves this Court for an Order compelling plaintiff to proceed with its foreclosure proceeding and as grounds states as follows: Hl Plaintiff, Wells Fargo Bank, N.A., is the holder of a first mortgage (“Mortgage”) secured by residential real property which is within the Association. Defendant Stephen Z. Reed was the owner of the property at the time the mortgage was obtained who pledged the mortgage to plaintiff (“Reed”). 2. Reed defaulted in the payment of assessments to the Association and the assessments continue to accrue. 3. Plaintiff initiated this foreclosure action in January 2008. 4. As of the date of this motion, Plaintiff has not proceeded to conclude its case with a foreclosure sale although plaintiff filed its motion for summary judgment on April 15, 2009. 5. In the event Plaintiff forecloses the property and is the successful bidder at the foreclosure sale, Plaintiff would only be liable to the Association for the lesser of the assessments owed to the Association for the 6 months immediately preceding the acquisition of title, or 1% of the original mortgage debt. § 716.116, Fla. Stat. (2009). Subsequent to the acquisition of title, Plaintiff will be liable for the periodic assessments as they are due.6. In the current real estate market, it is unlikely that anyone will purchase the property at a foreclosure sale, considering that any purchaser will take title to the property subject to the mortgage and the assessments owed to the Association. 7. Therefore, it is in Plaintiff's best interest to delay the foreclosure sale, so as to limit the amount of assessments it will have to pay the Association in and when Plaintiff acquires title to the property. 8. The Association’s only other relief is to foreclose its subordinate lien though, as stated above, it is unlikely that anyone will purchase the property at an association lien foreclosure sale because any purchaser will take title to the property subject to the Mortgage and the assessments owed to the Association. 9. Plaintiff's postponement of its foreclosure action serves only to benefit the Plaintiff while the delay materially harms the remaining assessment-paying members of the Association who are required to carry the financial burden caused by the delinquent assessments and the monthly regular and special assessments as they come due. 10. Plaintiff has no remedy at law to avoid this injustice. 11. The legislative intent of sections 718.116(1)(b) and 720.3085, Florida Statutes, was to protect condominium and homeowners associations from mortgage holders who are reluctant to foreclose their mortgages secured by delinquent condominium units because of the obligations to pay the assessments once the mortgagee takes title to the property. 12. In a case involving similar issues, the Fifth District Court of Appeal held that a trial court, in the exercise of its equitable powers, can compel a mortgage holder to either proceed with a foreclosure sale or to pay the condominium association's monthly assessments. F.D.LC. v. Venture Corp. of Sarasota, Inc., 622.S0.2d 581, 582 (en DCA 1993). WHEREFORE, for the reasons stated above defendant the Village of Abacoa Condominium Association, Inc., through its undersigned counsel, respectfully requests an order compelling plaintiff to proceed with the foreclosure as soon as possible.JECK, HARRIS, RAYNOR & JONES, P.A. Attorney for Defendant The Village of Abacoa Condominium Association, Inc. Walk, Suite 600 / 33408 (561) 46-1002 (voice) (561) 747-4113 (fax) giones@jhripa.com Florida Bar No. 716898 CERIFICATE OF SERVICE | hereby certify that a true copy of the foregoing motion has been furnished to the partiesMAILING LIST CASE NO.: 502008CA002855XXXXMB Stephen Z. Reed 1152 University Drive, #21 Jupiter, FL 33458 Rebecca Nilsen, Esquire Law Offices of Marshall C. Watson, P.A. 1800 N.W. 49" Street, Suite 120 Ft. Lauderdale, FL 33309 Mark A. Olivera, Esquire Kahane & Associates, P.A. 8201 Peters Road, Suite 3000 Plantation, FL 33324-3292