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Filing # 133219644 E-Filed 08/23/2021 03:20:53 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT, IN AND FORBROWARD COUNTY,
FLORIDA
Case No.: CACE-17-012278
Division: 11
WELLS FARGO BANK, N.A., AS TRUSTEE, ON BEHALF
OF
THE
HOLDERS
OF
STRUCTURED
ASSET
MORTGAGE INVESTMENTS II, INC., BEAR STEARNS
MORTGAGE FUNDING TRUST 2006-AR, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-AR5,
Plaintiff.
VS.
THANYAKORNATSAWAMAHAKUL, et al.,
Defendants.
i
PLAINTIFF'S NOTICE OF FILING CORRECTED "EXHIBIT H" TO MEMORANDUM
OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS
Plaintiff Wells Fargo Bank, as Trustee, etc. (the "Trust"), gives notice of filing a corrected
copy of Exhibit H to its Memorandum of Law in Opposition to Defendants Nissim and Michele
Shanis' Motion to Dismiss with Prejudice, originallyfiled on August 17,2021. The copy attached
to the Memorandum was apparently corrupted when converting the document to PDF-A format.
WE HEREBY CERTIFY that on August 23, 2021 the foregoing was filed with the
Florida Courts e-filing Portal and servedon all those on the attached Service List, either via Notices
of Electronic Filing generatedby the ePortal system or another authorized manner.
Respectfully submitted,
LAPIN & LEICHTLING, LLP
Counselfor Plaintiff
255 Alhambra Circle Suite 600
Coral Gables, Florida 33134
Telephone No.. (305) 569-4100
By:
s/ Benjamin B. Carter
BENJAMIN B. CARTER
Florida Bar No.. 090950
LAPIN & LEICHTLING, LLP, 255 ALHAMBRA CIRCLE, SUITE 600, CORAL GABLES, FLORIDA 33134 (305) 569-4100
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/23/2021 03:20:52 PM.****
Case No.: CACE-17-012278 (11)
SERVICE LIST
Lynette E. McGuinness
Cary A. Lubetsky
cal@khllaw.com
lem@khllaw.com
Counselfor
Plaintiffs Nissim and Michele Shani
Tara N. Mulrey, Esq.
Katzman Chandler
Counselfor Defendant Park Tower Association,Inc.
Rebecca L. Rhew, Esq.
Ira S. Silverstein, Esq.
Liebler, Gonzalez & Portuondo
service@lgplaw.com
Counselfor Third Party Defendant BankofAmerica, N.A.
2
LAPIN & LEICHTLING, LLP, 255 ALHAMBRA CIRCLE, SUITE 600, CORAL GABLES, FLORIDA 33134 (305) 569-4100
Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021)
2021 WL 1776356, 46 Fla. L. Weekly D1048
2021 WL 1776356
West Headnotes (6)
District Court ofAppeal of Florida, Fourth District.
WELLS FARGO BANK, NA., Appellant,
[1]
Mortgages and Deeds of Trust 9= Rights and
V.
remedies of prior lienholders
CHI PENG TAN, Bank ofAmerica, NA., as assignee
Mortgage foreclosure judgment obtained by
of First Magnus Financial Corporation,Mortgage
junior lienholder was void, where judgment
Electronic Registration Systems, Inc., Acting solely
purported to foreclose interest of senior
lienholder. Fla. Stat. Ann. § 695.01(1).
as Nomineefor First Magnus Financial Corporation,
an Arizona Corporation, Schindler Elevator
Corporation, Southern Construction Services,Inc.,
[2]
Mortgages and Deeds of
PrecisionU.S.A., Inc., ParkTower Association,
Trust 0= Proceedings
Inc., Nissim Shani and Michele Shani,Appellees.
Senior lienholder's delay of more than five
No. 4D20-613
years in moving to vacate mortgage foreclosure
'
judgment obtained by junior
lienholder,
[May 5, 2021]
purporting to foreclose senior lienholder's
interest, was not unreasonable delay precluding
Synopsis
senior lienholder from seeking to vacate void
Background: After junior lienholder obtained foreclosure
judgment.Fla. Stat. Ann. § 695.01(1).
judgment and property was sold in foreclosure sale, senior
lienholdermovedfor relieffromjudgment. The CircuitCourt,
17th Judicial Circuit, Broward County, Dennis D. Bailey, J.,
[3]
Mortgages and Deeds of Trust ip= Rights of
denied motion, and senior lienholder appealed.
junior lienholders
Mortgages and Deeds of Trust v= Other
lenders, mortgagees, and lienholders
Holdings: The District Court of Appeal, Kuntz, J., held that:
A junior lienholder has a right to enforce its
lien through foreclosure,butthejuniorlienholder
[ll senior lienholder's delay of more than five years in
cannot require the senior lienholderto be a party
moving to vacate mortgage foreclosure judgment was not
to its foreclosure suit.
unreasonable delay, but
[2] statute, which barred relief from foreclosurejudgment if
[4]
Judgment v= Invalid or unauthorized
vacatingjudgment would adversely impact title, prohibited
judgments
trial court from granting senior lienholder relief from void
foreclosurejudgment.
When ajudgmentis void, there is almost no time
limit tomove to vacate. Fla. Stat. Ann. § 702.036.
Affirmed and remanded with instructions.
[5]
Mortgages and Deeds of
Procedural Posture(s): On Appeal; Motion to Set Aside
Trust i- Proceedings
or Vacate Order or Judgment; Motion to Determine Lien
Statute, which barred relief from foreclosure
Priority.
judgmentif vacating judgmentwould adversely
impact title of property obtained at foreclosure
sale, prohibited trial court from granting senior
lienholderrelieffrom void foreclosurejudgment
obtainedbyjunior lienholder, eventhough senior
Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021)
2021 WL 1776356, 46 Fla. L. Weekly D1048
lienholder filed separate motion for lis pendens
found Wells Fargo's delay in challengingthe judgmentwas
before junior lienholder filed foreclosure suit,
unreasonable. Even so, we affirm because we agree with
where senior lienholderwas served with process
the circuit court that section 702.036 barred the court from
in foreclosure proceeding, purchaser bought
grantingreliefthat adverselyimpactedthe titleto the property.
property and were living on it, and lis pendens
was not about suit to vacate foreclosure, but,
rather, concerned separate foreclosure suit by
Background
senior lienholder. Fla. Stat. Ann. § 702.036.
A non-partypurchasedthe real propertyat issue and executed
a mortgage in favor of Bear Stearns Residential Mortgage
[6]
Mortgages and Deeds of
Corporation. Bear Stearns assigned the mortgage to Wells
Trust v= Proceedings
Fargo. The non-party later sold the propertyto Chi Peng Tan,
Statute, which barred relief from foreclosure
who executed a mortgage in favor of First Magnus Financial
Corporation. The record shows that Wells Fargo recorded its
judgment if vacating judgmentwould adversely
mortgage before First Magnus recorded its mortgage.
impact title of property obtained at foreclosure
sale, does not include blanketprohibitionagainst
First
its
Magnus filed a foreclosure complaint against multiple
application if the foreclosure judgment is
void. Fla. Stat. Ann. § 702.036.
defendants, including Tan and Wells Fargo. It also filed a
notice of lis pendens. In the complaint, First Magnus alleged
Wells Fargo "may claim some right, title, or interest in the
subject property by virtue of certain liens encumbering the
subject property, all of which are inferior to IFirst Magnus's]
Appeal of nonfinal order from the Circuit Court for the
mortgage." The complaint was served on Wells Fargo, but
Seventeenth Judicial Circuit, Broward County; Dennis D.
Wells Fargo did not respond.
Bailey, Judge; L.T. CaseNo. CACE-08-035667(11).
The circuit court held a non-jury trial in First Magnus's
Attorneys and Law Firms
foreclosure case. It entered a foreclosure judgment that
foreclosed all interests, including the interest held by Wells
Benjamin B. Carter and Jeffrey S. Lapin of Lapin &
Fargo. First Magnus purchasedthe property at a foreclosure
Leichtling, LLP, Coral Gables, for appellant.
sale and receivedtitle to it.
Lynette El)eoglu McGuinness and Cary A. Lubetsky of
Krinzman Huss LubetskyFeldman & Hotte, FortLauderdale,
After it obtained title at the foreclosure sale, First Magnus
deeded the propertyto a successorin interest. That successor
for appellees Nissim Shani and Michele Shani.
in interest sold the propertyto Nissim and Michele Shani.
Elizabeth A. Henriques and Tricia J. Duthiers of Liebler
Gonzalez & Portuondo, Miami, for appellee Bank of
More than five years after Mr. and Mrs. Shani bought the
America, N.A.
property, Wells Fargo moved to vacate First Magnus's final
judgment.Wells Fargo alleged its interestin the propertywas
Opinion
superior to First Magnus's interest because it recorded its
mortgage first. As the senior lienholder, Wells Fargo argued
Kuntz, J.
the judgment for First Magnus was void as against it.
*1 Wells FargoBank, N.A. appealsa nonfinal order denying
its Florida Rule ofCivil Procedure1.540(b) motion to vacate
The circuit court held a hearing on Wells Fargo's motion
the final judgment and dismiss the complaint. The circuit
and found that the final judgment was void. Despite that
conclusion, the court held that Wells Fargo failed to act
court found the final judgmentwas void as to Wells Fargo;
within a reasonable time as required by the Florida Rules
that its motion to vacate was not filed within a reasonable
time; and, alternatively,that section 702.036,Florida Statutes
of Civil Procedure. Finally, and alternatively,the court held
(2019), precluded the relief sought in the motion. We
that section
agree
702.036, Florida Statutes (2019), precluded the
the judgment was void but hold that the court erred when it
relief Wells Fargo sought because it would adversely affect
Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021)
2021 WL 1776356, 46 Fla. L. Weekly D1048
the quality or character of the Shanis' ownership and title to
(Fla. 4th DCA 2015) (citationomitted);see also
Kathleen
the property.
G. Kozinski, PA. v Phillips, 126 So. 3d 1264,1268(Fla. 4th
DCA 2013) (a party may "move to vacate la void judgment]
at any time").
Analysis
The circuitcourt correctly found thejudgmentvoid but erred
We separately address the circuit court's conclusions. First,
when it found Wells Fargo unreasonably delayed seeking to
we aclclress the circuit court's conclusion that the judgment
vacate the void judgment.
was void but that Wells Fargo failed to seek relief in a
reasonable amount of time. Second, we address the circuit
court's alternative conclusion that section 702.036 precludes
the reliefWells
ii. Section
Fargo sought.
702.036, Florida Statutes, Applies
[5] The circuit court relied on section 702.036, Florida
Statutes (2019), as an alternative basis to deny Wells
i. The JudgmentWas Void
Fargo's motion. That statute provides limited protection to
the purchaser of a foreclosed property when a party later
*2
[1]
[2]
[3] We agree with the circuit court that challenges a
The relevantportionofthe
the final judgment was void. Wells Fargo's recorded the
statute includes various conditions,and states:
mortgage on the property before First Magnus recorded its
mortgage. Therefore, Wells Fargo held an interest in the
(1)(a) In any action or proceeding in which a party seeks
property senior to First Magnus's interest. § 695.01(1), Fla.
to set aside, invalidate, or challengethe validity of a final
Stat. (2019); ArgentMortg. Co., LLCv. WachoviaBank, N.A.,
judgment of foreclosure of a mortgage or to establish
52 So. 3d 796, 801 (Fla. 5th DCA 2010) ("Florida is, and
or reestablish a lien or encumbrance on the property
remains, a 'notice' jurisdiction,and notice controls the issue
in abrogation of the final judgment of foreclosure of a
of priority."). However, a junior lienholder has a right to
mortgage, the court shall treat such request solely as a
enforce its lien through foreclosure.See Bank ofAm., MA. v
claim for monetary damages and may not grant reliefthat
Kipps Colony#Condo.Ass'n, Inc.,201 So. 3d 670,675 (Fla.
adverselyaffects the qualityor character of the title to the
2d DCA 2016). But the junior lienholder cannot require the
property,if:
senior lienholderto be a party to its foreclosure suit. Id. As in
1. The party seeking relief from the final judgment of
Kipps Colony, the judgment here purported to foreclose the
foreclosure of the mortgage was properly served in the
interestofthe senior lienholder. That it could not do. Because
foreclosurelawsuit as provided in chapter 48 or chapter49.
the judgmentfor FirstMagnus sought to foreclosethe interest
ofthe senior lienholder, it is void. Id. at 676 ("IT]he judgment
2. The final judgment of foreclosure of the mortgage was
is void" and "the final judgment is legally ineffective and a
enteredas to the property.
nullity, creatingno binding obligation.");see also One Bros.
Consk Co. 1. Moore, 141 Fla. 420,193 So. 288 (1940).
3. All applicable appeals periods have run as to the final
judgment of foreclosure of the mortgage with no appeals
[4] The circuit court correctly concludedthat the judgment
having been taken or any appeals having been finally
is void. Yet it then consideredwhether Wells Fargo sought to
resolved.
vacate the judgment in a reasonable time. It erred in doing
so as "the passage of time cannot make valid that which has
4. The property has been acquired for value, by a person
been void fromthe beginning."ALL. Builders, Inc. v. Reserve
not affiliated with the foreclosing lender or the foreclosed
Devs., UP, 769 So. 2d 1079, 1082 (Fla. 4th DCA 2000)
owner, at a time in which no lis pendens regardingthe suit
to set
?
aside, invalidate,or challengethe foreclosureappears
(quoting
Ramagli Realo; Co. ? Craven 121 So. 2d 648,
in the official recordsofthe countywhere the propertywas
654 (Fla. 1960), disapproved on other grounds by Shell v.
located.
State Road Dep't oflrla., 135 So. 2d 857 (Fla. 1961)). When
a judgmentis void, there is "almost no time limif' to move
§ 702.036(1)(a), Fla. Stat. (2019).
to vacate. Citibank MA. v. Villanueva, 174 So. 3d 612, 614
Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021)
2021 WL 1776356, 46 Fla. L. Weekly D1048
1
First, Wells Fargowas servedwith processintheFirstMagnus
Fargo recorded a lis pendens relating to that separate suit.
foreclosure suit, so section 702.036(1)(a)(1) is satisfied.
But the statute is clear. It requires a lis pendens about the
Second, section 702.036(1)(a)(2) is satisfied because the
suit to set aside, invalidate, or challenge the foreclosure.
court entered a final judgment of foreclosure as to the
That Wells Fargo provided constructive notice of its interest
property. Third, section 702.036(1)(a)(3) is satisfied as all
through the lis pendens in the separate suit does not satisfy
appellateperiods for the First Magnus judgmenthave run.
the statute. The legislature knows how to write a statute that
applies to any person with actual or constructive notice, and
*3 The dispute here relates to section 702.036(1)(a)(4) and
that is not what it did in section 702.036(1)(a)(4).We will not
whether the statute can ever apply to a void judgment. Wells
do it for them.
Fargo arguesthe circuitcourt erred when it applied the statute
because the statute is inapplicable when the relief sought
[6]
Second, Wells Fargo argues section 702.036 does not
would not adversely affect the quality or character of the
apply to void judgments. That argument is reasonable.
Shanis' title to, and ownership of the property It also argues
But, again, we are limited by the text of the statute.
the statute cannot protect a void judgment.
The legislature wished to provide finality to a mortgage
foreclosurejudgment. It includedcertain protections, such as
Not surprisingly the Shallis, who purchased the property
preventingthe application of the statute if the party seeking
after the foreclosure sale, respond that the final judgment
2
reliefwas not servedwith the lawsuit.
But it did not include
adverselyaffects its qualityor characteroftitleto the property
a blanket prohibition against applying the statute if a court
because they bought it relying on the final judgment,which
determines the judgment is void. We will not add such a
extinguishedWells Fargo's mortgage. The Shanis also explain
provisionto the statute.
they have since renovated, improved, and maintained the
property. Tan, who owned the property at the time of the
foreclosure, argues section 702.036 does not except void
Conclusion
judgments and Wells Fargo's lis pendens did not destroy the
applicability ofthe statute.
The circuit court correctly concluded the final judgment is
void but erred when it determined Wells Fargo's delay in
First, we agreewith the Shanis that an order vacatingthe final
seeking to vacate the judgment was unreasonable.Yet we
judgmentwould adverselyimpactthe qualityand characterof
must affirm because section 702.036, Florida Statutes (2019),
their title to the property. The Shanis purchasedthe property
precluded the court from granting relief "that adversely
for $385,100 and have been living there since 2013. They
affects the qualityand characterof title." While we affirm the
purchasedthe property for value and, based on the record,
circuitcourt's order, we note that the statuterequiresthe court
are not affiliated with any other party to this dispute. If the
to treat the motion challenging the final judgmentas a "claim
judgmentwerevacated, sotoowould theirtitletotheproperty.
for monetary relief." To the extent applicable, the court must
Vacating the judgmentwould adversely impact the Shanis'
do so on remand. We expressno opinion on any such claim.
title.
*4 Affirmed and remandedwith instructions.
But Wells Fargo argues section 702.036(1)(a)(4) precludes
application of the statute when a lis pendens is filed. That
subsectionstates that section 702.036(1)(a) only applies "at a
Warner and Artau, JJ., concur.
time in which no lis pendens regarding the suit to set aside,
invalidate, or challengethe foreclosure appears in the official
All Citations
records of the countywhere the propertywas located."Id.
---
So.3d ----, 2021 WL 1776356, 46 Fla. L. Weekly D1048
It is true that Wells Fargo filed a separate foreclosure suit
before First Magnus filed its foreclosure suit. And Wells
Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021)
2021 WL 1776356, 46 Fla. L. Weekly D1048
Footnotes
1
Wells Fargo canceled the notice of Iis pendens in April 2015, four years before it sought to vacate the final
judgment.
2
The judgment would also be void if an interest holder was not served with the complaint. But, as noted, in
that situation the statute would not apply. § 702.036(1)(a)(1), Fla. Stat.
End of Document
@ 2021 Thomson Reuters. No claim to original U.S. GovernmentWorks.
Preview
Filing # 133219644 E-Filed 08/23/2021 03:20:53 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FORBROWARD COUNTY, FLORIDA Case No.: CACE-17-012278 Division: 11 WELLS FARGO BANK, N.A., AS TRUSTEE, ON BEHALF OF THE HOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC., BEAR STEARNS MORTGAGE FUNDING TRUST 2006-AR, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR5, Plaintiff. VS. THANYAKORNATSAWAMAHAKUL, et al., Defendants. i PLAINTIFF'S NOTICE OF FILING CORRECTED "EXHIBIT H" TO MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS Plaintiff Wells Fargo Bank, as Trustee, etc. (the "Trust"), gives notice of filing a corrected copy of Exhibit H to its Memorandum of Law in Opposition to Defendants Nissim and Michele Shanis' Motion to Dismiss with Prejudice, originallyfiled on August 17,2021. The copy attached to the Memorandum was apparently corrupted when converting the document to PDF-A format. WE HEREBY CERTIFY that on August 23, 2021 the foregoing was filed with the Florida Courts e-filing Portal and servedon all those on the attached Service List, either via Notices of Electronic Filing generatedby the ePortal system or another authorized manner. Respectfully submitted, LAPIN & LEICHTLING, LLP Counselfor Plaintiff 255 Alhambra Circle Suite 600 Coral Gables, Florida 33134 Telephone No.. (305) 569-4100 By: s/ Benjamin B. Carter BENJAMIN B. CARTER Florida Bar No.. 090950 LAPIN & LEICHTLING, LLP, 255 ALHAMBRA CIRCLE, SUITE 600, CORAL GABLES, FLORIDA 33134 (305) 569-4100 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/23/2021 03:20:52 PM.**** Case No.: CACE-17-012278 (11) SERVICE LIST Lynette E. McGuinness Cary A. Lubetsky cal@khllaw.com lem@khllaw.com Counselfor Plaintiffs Nissim and Michele Shani Tara N. Mulrey, Esq. Katzman Chandler Counselfor Defendant Park Tower Association,Inc. Rebecca L. Rhew, Esq. Ira S. Silverstein, Esq. Liebler, Gonzalez & Portuondo service@lgplaw.com Counselfor Third Party Defendant BankofAmerica, N.A. 2 LAPIN & LEICHTLING, LLP, 255 ALHAMBRA CIRCLE, SUITE 600, CORAL GABLES, FLORIDA 33134 (305) 569-4100 Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021) 2021 WL 1776356, 46 Fla. L. Weekly D1048 2021 WL 1776356 West Headnotes (6) District Court ofAppeal of Florida, Fourth District. WELLS FARGO BANK, NA., Appellant, [1] Mortgages and Deeds of Trust 9= Rights and V. remedies of prior lienholders CHI PENG TAN, Bank ofAmerica, NA., as assignee Mortgage foreclosure judgment obtained by of First Magnus Financial Corporation,Mortgage junior lienholder was void, where judgment Electronic Registration Systems, Inc., Acting solely purported to foreclose interest of senior lienholder. Fla. Stat. Ann. § 695.01(1). as Nomineefor First Magnus Financial Corporation, an Arizona Corporation, Schindler Elevator Corporation, Southern Construction Services,Inc., [2] Mortgages and Deeds of PrecisionU.S.A., Inc., ParkTower Association, Trust 0= Proceedings Inc., Nissim Shani and Michele Shani,Appellees. Senior lienholder's delay of more than five No. 4D20-613 years in moving to vacate mortgage foreclosure ' judgment obtained by junior lienholder, [May 5, 2021] purporting to foreclose senior lienholder's interest, was not unreasonable delay precluding Synopsis senior lienholder from seeking to vacate void Background: After junior lienholder obtained foreclosure judgment.Fla. Stat. Ann. § 695.01(1). judgment and property was sold in foreclosure sale, senior lienholdermovedfor relieffromjudgment. The CircuitCourt, 17th Judicial Circuit, Broward County, Dennis D. Bailey, J., [3] Mortgages and Deeds of Trust ip= Rights of denied motion, and senior lienholder appealed. junior lienholders Mortgages and Deeds of Trust v= Other lenders, mortgagees, and lienholders Holdings: The District Court of Appeal, Kuntz, J., held that: A junior lienholder has a right to enforce its lien through foreclosure,butthejuniorlienholder [ll senior lienholder's delay of more than five years in cannot require the senior lienholderto be a party moving to vacate mortgage foreclosure judgment was not to its foreclosure suit. unreasonable delay, but [2] statute, which barred relief from foreclosurejudgment if [4] Judgment v= Invalid or unauthorized vacatingjudgment would adversely impact title, prohibited judgments trial court from granting senior lienholder relief from void foreclosurejudgment. When ajudgmentis void, there is almost no time limit tomove to vacate. Fla. Stat. Ann. § 702.036. Affirmed and remanded with instructions. [5] Mortgages and Deeds of Procedural Posture(s): On Appeal; Motion to Set Aside Trust i- Proceedings or Vacate Order or Judgment; Motion to Determine Lien Statute, which barred relief from foreclosure Priority. judgmentif vacating judgmentwould adversely impact title of property obtained at foreclosure sale, prohibited trial court from granting senior lienholderrelieffrom void foreclosurejudgment obtainedbyjunior lienholder, eventhough senior Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021) 2021 WL 1776356, 46 Fla. L. Weekly D1048 lienholder filed separate motion for lis pendens found Wells Fargo's delay in challengingthe judgmentwas before junior lienholder filed foreclosure suit, unreasonable. Even so, we affirm because we agree with where senior lienholderwas served with process the circuit court that section 702.036 barred the court from in foreclosure proceeding, purchaser bought grantingreliefthat adverselyimpactedthe titleto the property. property and were living on it, and lis pendens was not about suit to vacate foreclosure, but, rather, concerned separate foreclosure suit by Background senior lienholder. Fla. Stat. Ann. § 702.036. A non-partypurchasedthe real propertyat issue and executed a mortgage in favor of Bear Stearns Residential Mortgage [6] Mortgages and Deeds of Corporation. Bear Stearns assigned the mortgage to Wells Trust v= Proceedings Fargo. The non-party later sold the propertyto Chi Peng Tan, Statute, which barred relief from foreclosure who executed a mortgage in favor of First Magnus Financial Corporation. The record shows that Wells Fargo recorded its judgment if vacating judgmentwould adversely mortgage before First Magnus recorded its mortgage. impact title of property obtained at foreclosure sale, does not include blanketprohibitionagainst First its Magnus filed a foreclosure complaint against multiple application if the foreclosure judgment is void. Fla. Stat. Ann. § 702.036. defendants, including Tan and Wells Fargo. It also filed a notice of lis pendens. In the complaint, First Magnus alleged Wells Fargo "may claim some right, title, or interest in the subject property by virtue of certain liens encumbering the subject property, all of which are inferior to IFirst Magnus's] Appeal of nonfinal order from the Circuit Court for the mortgage." The complaint was served on Wells Fargo, but Seventeenth Judicial Circuit, Broward County; Dennis D. Wells Fargo did not respond. Bailey, Judge; L.T. CaseNo. CACE-08-035667(11). The circuit court held a non-jury trial in First Magnus's Attorneys and Law Firms foreclosure case. It entered a foreclosure judgment that foreclosed all interests, including the interest held by Wells Benjamin B. Carter and Jeffrey S. Lapin of Lapin & Fargo. First Magnus purchasedthe property at a foreclosure Leichtling, LLP, Coral Gables, for appellant. sale and receivedtitle to it. Lynette El)eoglu McGuinness and Cary A. Lubetsky of Krinzman Huss LubetskyFeldman & Hotte, FortLauderdale, After it obtained title at the foreclosure sale, First Magnus deeded the propertyto a successorin interest. That successor for appellees Nissim Shani and Michele Shani. in interest sold the propertyto Nissim and Michele Shani. Elizabeth A. Henriques and Tricia J. Duthiers of Liebler Gonzalez & Portuondo, Miami, for appellee Bank of More than five years after Mr. and Mrs. Shani bought the America, N.A. property, Wells Fargo moved to vacate First Magnus's final judgment.Wells Fargo alleged its interestin the propertywas Opinion superior to First Magnus's interest because it recorded its mortgage first. As the senior lienholder, Wells Fargo argued Kuntz, J. the judgment for First Magnus was void as against it. *1 Wells FargoBank, N.A. appealsa nonfinal order denying its Florida Rule ofCivil Procedure1.540(b) motion to vacate The circuit court held a hearing on Wells Fargo's motion the final judgment and dismiss the complaint. The circuit and found that the final judgment was void. Despite that conclusion, the court held that Wells Fargo failed to act court found the final judgmentwas void as to Wells Fargo; within a reasonable time as required by the Florida Rules that its motion to vacate was not filed within a reasonable time; and, alternatively,that section 702.036,Florida Statutes of Civil Procedure. Finally, and alternatively,the court held (2019), precluded the relief sought in the motion. We that section agree 702.036, Florida Statutes (2019), precluded the the judgment was void but hold that the court erred when it relief Wells Fargo sought because it would adversely affect Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021) 2021 WL 1776356, 46 Fla. L. Weekly D1048 the quality or character of the Shanis' ownership and title to (Fla. 4th DCA 2015) (citationomitted);see also Kathleen the property. G. Kozinski, PA. v Phillips, 126 So. 3d 1264,1268(Fla. 4th DCA 2013) (a party may "move to vacate la void judgment] at any time"). Analysis The circuitcourt correctly found thejudgmentvoid but erred We separately address the circuit court's conclusions. First, when it found Wells Fargo unreasonably delayed seeking to we aclclress the circuit court's conclusion that the judgment vacate the void judgment. was void but that Wells Fargo failed to seek relief in a reasonable amount of time. Second, we address the circuit court's alternative conclusion that section 702.036 precludes the reliefWells ii. Section Fargo sought. 702.036, Florida Statutes, Applies [5] The circuit court relied on section 702.036, Florida Statutes (2019), as an alternative basis to deny Wells i. The JudgmentWas Void Fargo's motion. That statute provides limited protection to the purchaser of a foreclosed property when a party later *2 [1] [2] [3] We agree with the circuit court that challenges a The relevantportionofthe the final judgment was void. Wells Fargo's recorded the statute includes various conditions,and states: mortgage on the property before First Magnus recorded its mortgage. Therefore, Wells Fargo held an interest in the (1)(a) In any action or proceeding in which a party seeks property senior to First Magnus's interest. § 695.01(1), Fla. to set aside, invalidate, or challengethe validity of a final Stat. (2019); ArgentMortg. Co., LLCv. WachoviaBank, N.A., judgment of foreclosure of a mortgage or to establish 52 So. 3d 796, 801 (Fla. 5th DCA 2010) ("Florida is, and or reestablish a lien or encumbrance on the property remains, a 'notice' jurisdiction,and notice controls the issue in abrogation of the final judgment of foreclosure of a of priority."). However, a junior lienholder has a right to mortgage, the court shall treat such request solely as a enforce its lien through foreclosure.See Bank ofAm., MA. v claim for monetary damages and may not grant reliefthat Kipps Colony#Condo.Ass'n, Inc.,201 So. 3d 670,675 (Fla. adverselyaffects the qualityor character of the title to the 2d DCA 2016). But the junior lienholder cannot require the property,if: senior lienholderto be a party to its foreclosure suit. Id. As in 1. The party seeking relief from the final judgment of Kipps Colony, the judgment here purported to foreclose the foreclosure of the mortgage was properly served in the interestofthe senior lienholder. That it could not do. Because foreclosurelawsuit as provided in chapter 48 or chapter49. the judgmentfor FirstMagnus sought to foreclosethe interest ofthe senior lienholder, it is void. Id. at 676 ("IT]he judgment 2. The final judgment of foreclosure of the mortgage was is void" and "the final judgment is legally ineffective and a enteredas to the property. nullity, creatingno binding obligation.");see also One Bros. Consk Co. 1. Moore, 141 Fla. 420,193 So. 288 (1940). 3. All applicable appeals periods have run as to the final judgment of foreclosure of the mortgage with no appeals [4] The circuit court correctly concludedthat the judgment having been taken or any appeals having been finally is void. Yet it then consideredwhether Wells Fargo sought to resolved. vacate the judgment in a reasonable time. It erred in doing so as "the passage of time cannot make valid that which has 4. The property has been acquired for value, by a person been void fromthe beginning."ALL. Builders, Inc. v. Reserve not affiliated with the foreclosing lender or the foreclosed Devs., UP, 769 So. 2d 1079, 1082 (Fla. 4th DCA 2000) owner, at a time in which no lis pendens regardingthe suit to set ? aside, invalidate,or challengethe foreclosureappears (quoting Ramagli Realo; Co. ? Craven 121 So. 2d 648, in the official recordsofthe countywhere the propertywas 654 (Fla. 1960), disapproved on other grounds by Shell v. located. State Road Dep't oflrla., 135 So. 2d 857 (Fla. 1961)). When a judgmentis void, there is "almost no time limif' to move § 702.036(1)(a), Fla. Stat. (2019). to vacate. Citibank MA. v. Villanueva, 174 So. 3d 612, 614 Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021) 2021 WL 1776356, 46 Fla. L. Weekly D1048 1 First, Wells Fargowas servedwith processintheFirstMagnus Fargo recorded a lis pendens relating to that separate suit. foreclosure suit, so section 702.036(1)(a)(1) is satisfied. But the statute is clear. It requires a lis pendens about the Second, section 702.036(1)(a)(2) is satisfied because the suit to set aside, invalidate, or challenge the foreclosure. court entered a final judgment of foreclosure as to the That Wells Fargo provided constructive notice of its interest property. Third, section 702.036(1)(a)(3) is satisfied as all through the lis pendens in the separate suit does not satisfy appellateperiods for the First Magnus judgmenthave run. the statute. The legislature knows how to write a statute that applies to any person with actual or constructive notice, and *3 The dispute here relates to section 702.036(1)(a)(4) and that is not what it did in section 702.036(1)(a)(4).We will not whether the statute can ever apply to a void judgment. Wells do it for them. Fargo arguesthe circuitcourt erred when it applied the statute because the statute is inapplicable when the relief sought [6] Second, Wells Fargo argues section 702.036 does not would not adversely affect the quality or character of the apply to void judgments. That argument is reasonable. Shanis' title to, and ownership of the property It also argues But, again, we are limited by the text of the statute. the statute cannot protect a void judgment. The legislature wished to provide finality to a mortgage foreclosurejudgment. It includedcertain protections, such as Not surprisingly the Shallis, who purchased the property preventingthe application of the statute if the party seeking after the foreclosure sale, respond that the final judgment 2 reliefwas not servedwith the lawsuit. But it did not include adverselyaffects its qualityor characteroftitleto the property a blanket prohibition against applying the statute if a court because they bought it relying on the final judgment,which determines the judgment is void. We will not add such a extinguishedWells Fargo's mortgage. The Shanis also explain provisionto the statute. they have since renovated, improved, and maintained the property. Tan, who owned the property at the time of the foreclosure, argues section 702.036 does not except void Conclusion judgments and Wells Fargo's lis pendens did not destroy the applicability ofthe statute. The circuit court correctly concluded the final judgment is void but erred when it determined Wells Fargo's delay in First, we agreewith the Shanis that an order vacatingthe final seeking to vacate the judgment was unreasonable.Yet we judgmentwould adverselyimpactthe qualityand characterof must affirm because section 702.036, Florida Statutes (2019), their title to the property. The Shanis purchasedthe property precluded the court from granting relief "that adversely for $385,100 and have been living there since 2013. They affects the qualityand characterof title." While we affirm the purchasedthe property for value and, based on the record, circuitcourt's order, we note that the statuterequiresthe court are not affiliated with any other party to this dispute. If the to treat the motion challenging the final judgmentas a "claim judgmentwerevacated, sotoowould theirtitletotheproperty. for monetary relief." To the extent applicable, the court must Vacating the judgmentwould adversely impact the Shanis' do so on remand. We expressno opinion on any such claim. title. *4 Affirmed and remandedwith instructions. But Wells Fargo argues section 702.036(1)(a)(4) precludes application of the statute when a lis pendens is filed. That subsectionstates that section 702.036(1)(a) only applies "at a Warner and Artau, JJ., concur. time in which no lis pendens regarding the suit to set aside, invalidate, or challengethe foreclosure appears in the official All Citations records of the countywhere the propertywas located."Id. --- So.3d ----, 2021 WL 1776356, 46 Fla. L. Weekly D1048 It is true that Wells Fargo filed a separate foreclosure suit before First Magnus filed its foreclosure suit. And Wells Wells Fargo Bank, N.A. v. Chi Peng Tan, --- So.3d ---- (2021) 2021 WL 1776356, 46 Fla. L. Weekly D1048 Footnotes 1 Wells Fargo canceled the notice of Iis pendens in April 2015, four years before it sought to vacate the final judgment. 2 The judgment would also be void if an interest holder was not served with the complaint. But, as noted, in that situation the statute would not apply. § 702.036(1)(a)(1), Fla. Stat. End of Document @ 2021 Thomson Reuters. No claim to original U.S. GovernmentWorks.