NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BANK OF AMERICA, NATIONAL )
ASSOCIATION, SUCCESSOR BY )
MERGER TO BAC HOME LOANS )
SERVICING, LP f/k/a Countrywide Home )
Loans Servicing LP, )
)
Appellant, )
)
v. ) Case No. 2D14-3643
)
THE ENCLAVE AT RICHMOND )
PLACE CONDOMINIUM ASSOCIATION, )
INC.; ALICE H. EVERETT; PAUL J. )
EVERETT; MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC., as )
Nominee for Bayrock Mortgage Company; )
JANE DOE n/k/a Ronda Hanves; and )
JOHN DOE n/k/a Gregg Griffith, )
)
Appellees. )
)
Opinion filed August 21, 2015.
Appeal from the Circuit Court for
Hillsborough County; Sandra Taylor, Senior
Judge.
Michael D. Starks, A. Donald Scott, and
Shafin A. Remtulla of Baker, Donelson,
Bearman, Caldwell & Berkowitz, PC,
Orlando, for Appellant.
Jacob A. Brainard, Scott C. Davis, and
Candice J. Gundel of Business Law Group,
P.A., Tampa, for Appellee The Enclave at
Richmond Place Condominium Association,
Inc.
No appearance for remaining Appellees.
BLACK, Judge.
In this appeal, Bank of America, N.A. (BOA), challenges the trial court's
order denying BOA's motion to enforce the final judgment of foreclosure. Because The
Enclave at Richmond Place Condominium Association (Association) affirmatively
pleaded that BOA was entitled to the benefit of the assessment liability limitation under
section 718.116(1)(b), Florida Statutes (2013) (safe harbor provision), we reverse.
The facts relevant to our holding are few. Countrywide Home Loans, Inc.,
initiated a foreclosure action naming the Association as a defendant. Paragraph 10 of
the complaint alleged that the Association "may claim some interest in or lien upon the
subject property by virtue of any unpaid [d]ues and/or [a]ssessments and said interest, if
any, is subject and inferior to the lien of Plaintiff's mortgage." In its answer to paragraph
10, the Association admitted that it had an interest but denied that its interest was
inferior. Additionally, the Association affirmatively pleaded:
The mortgage which is being foreclosed is a first
purchase money mortgage which was recorded after April 1,
1992. Pursuant to Fla. Stat. § 718.116, the Plaintiff's lien is
superior to any title and interest to any condominium
assessments, except for those unpaid dues, which are not to
exceed six (6) months' unpaid assessments or one percent
(1%) of the original principal balance of the mortgage,
whichever is less.
-2-
At no time did the Association move to amend or withdraw this pleading.
During the pendency of the foreclosure action, BOA was substituted as
party plaintiff. The case was tried by the court and the final judgment of foreclosure was
entered in favor of BOA. Paragraph 5 of the judgment states:
Plaintiff holds a lien for the total sum specified in
Paragraph 3 herein. The lien of the plaintiff is superior in
dignity to any right, title, interest or claim of the defendants
and all persons claiming by, or through, or under the
defendants or any of them and the property will be sold free
and clear of all claims of the defendants, with the exception
of any assessments that are superior pursuant to Sections
718.116 or 720.3085, Florida Statutes.
Neither the Association nor any other defendant appealed the final judgment.
BOA purchased the property at the foreclosure sale and a certificate of
title was issued. BOA then sought an estoppel letter indicating that BOA owed
$1421.34 in assessments. In response, the Association claimed entitlement to more
than $36,000 in unpaid assessments, interest, and various fees. As a result of the
Association's claim, BOA filed the motion to enforce the final judgment. BOA argued
that its liability for unpaid assessments was limited pursuant to the express terms of
section 718.116(1)(b) and the Association's declaration of condominium. The safe
harbor provision provides:
(b) 1. The liability of a first mortgagee or its successor or
assignees who acquire title to a unit by foreclosure or by
deed in lieu of foreclosure for the unpaid assessments that
became due before the mortgagee's acquisition of title is
limited to the lesser of:
a. The unit's unpaid common expenses and regular periodic
assessments which accrued or came due during the 12
months immediately preceding the acquisition of title and for
which payment in full has not been received by the
association; or
-3-
b. One percent of the original mortgage debt. The provisions
of this paragraph apply only if the first mortgagee joined the
association as a defendant in the foreclosure action.
§ 718.116(1)(b). The declaration of condominium contains language identical to the
statute except that the "first mortgagee or its successor or assignees" may be liable for
only six months of unpaid common expenses and regular periodic assessments. BOA
contended that it was liable for $1421.34—one percent of the original mortgage debt—
as the lesser of the two amounts.
The trial court found that it had continuing jurisdiction and could therefore
address BOA's motion.1 It then found that BOA was not entitled to the benefit of the
safe harbor provision.
BOA argues, in part, that the Association is estopped from taking a
position contrary to that which it affirmatively took in the underlying foreclosure
proceeding. At the hearing on the motion to enforce the final judgment, BOA presented
its waiver and estoppel argument. In reaching its determination that BOA was not
entitled to the benefit of the safe harbor statute, the trial court implicitly rejected BOA's
argument that the Association is precluded from taking inconsistent positions on this
issue.
We conclude that the Association's affirmative plea of entitlement to only
the lesser of six months' unpaid assessments or one percent of the mortgage debt was
1
Nothing in this opinion should be construed as a ruling on the trial court's
continuing jurisdiction. The Association did not cross-appeal the trial court's order; as
such, the jurisdictional issue is not before us. See Ocean Bank v. Caribbean Towers
Condo. Ass'n, Inc., 121 So. 3d 1087, 1089-90 (Fla. 3d DCA 2013); cf. Grand Cent. at
Kennedy Condo. Ass'n v. Space Coast Credit Union, No. 2D14-2740 (Fla. 2d DCA
August 19, 2015).
-4-
a waiver of any claim to a greater assessment figure. See, e.g., DK Arena, Inc. v. EB
Acquisitions I, LLC, 112 So. 3d 85, 97-98 (Fla. 2013) ("Waiver operates to estop one
from asserting that upon which he otherwise might have relied . . . ." (quoting
SourceTrack, LLC v. Ariba, Inc., 958 So. 2d 523, 527 (Fla. 2d DCA 2007))); Barbe v.
Villeneuve, 505 So. 2d 1331, 1333 (Fla. 1987) ("A party will not be permitted to enforce
wholly inconsistent demands respecting the same right[s]." (quoting Am. Process Co. v.
Fla. White Pressed Brick Co., 47 So. 942, 944 (Fla. 1908))); Tara Woods SPE, LLC v.
Cashin, 116 So. 3d 492, 501 (Fla. 2d DCA 2013) (discussing the elements of waiver
and their application).
Accordingly, we reverse the order denying the motion to enforce the final
judgment and remand for further proceedings.
Reversed and remanded.
KELLY and KHOUZAM, JJ., Concur.
-5-