Third District Court of Appeal
State of Florida
Opinion filed June 28, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-439
Lower Tribunal No. 15-18141
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Bankers Lending Services, Inc.,
Petitioner,
vs.
Regents Park Investments, LLC,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County.
Garbett, Allen & Roza and B. Elizabeth Interthal and David S. Garbett, for
petitioner.
Arnaldo Velez, for respondent.
Before SALTER, FERNANDEZ and LUCK, JJ.
SALTER, J.
Bankers Lending Services, Inc. (“Bankers Lending”), seeks a writ of
certiorari quashing an order denying Bankers Lending’s motion to require a bond
as a condition for reinstatement of a lis pendens. Finding Bankers Lending’s
petition well taken, we quash the order.
Procedural History
This case originated with Regents’ (the buyer’s) claim for specific
performance of a contract to buy several real estate parcels from Bankers Lending.
When the transaction failed to close, Regents filed its lawsuit and a lis pendens
encumbering the parcels.1 The trial court granted Bankers Lending’s motion to
discharge the lis pendens, but we reversed and remanded the case with an
instruction to reinstate the lis pendens. Regents Park Invs. v. Bankers Lending
Servs., Inc., 197 So. 3d 617 (Fla. 3d DCA 2016) (“Regents I”).
On remand, the trial court granted Regents’ motion to reinstate the lis
pendens, but denied Bankers Lending’s cross-motion for an evidentiary hearing to
consider whether a lis pendens bond should be required and, if so, to set the
amount of the bond. Bankers Lending’s petition for certiorari followed.
Analysis
Regents’ response to the petition and its argument to the trial court was that
Bankers Lending no longer owned the property and thus could suffer no harm. On
that basis, Regents argued that the trial court should exercise its discretion and
1 As Regents’ claim was for specific performance and was not based on a “duly
recorded instrument,” Regents was required by section 48.23, Florida Statutes
(2015) to file a lis pendens if it wished to protect itself against the claims of non-
parties.
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deny the motion for a lis pendens bond. Between the time the lis pendens was
discharged by the trial court in February 2016 and our reversal of that order in July
2016 (Regents I, 197 So. 3d at 622), a non-party lender to Bankers Lending, Infill
Development Lenders, LLC (“Infill”), recorded a quitclaim deed to the parcels in
dispute. The quitclaim deed, though dated July 1, 2012, was recorded by Infill in
April 2016 as part of its mortgage loan and forbearance agreement with Bankers
Lending.
Citing Penabad v. A.G. Gladstone Associates, Inc., 823 So. 2d 146 (Fla. 3d
DCA 2002), Regents persuaded the trial court that Infill, not Bankers Lending, was
the owner and no bond should be required as a condition of reinstating the lis
pendens. The trial court thus granted Regents’ motion to reinstate the lis pendens
as of the date filed in August 2015, but denied Bankers Lending’s cross-motion to
require a lis pendens bond.
Although we have also reviewed orders granting or discharging a lis
pendens, and orders relating to lis pendens bonds, as appealable non-final orders
under Florida Rule of Appellate Procedure 9.130(a)(3)(B), we have more recently
agreed with the other Florida district courts of appeal “that certiorari is the
appropriate procedure for the review of such an order.” 100 Lincoln Rd SB, LLC
v. Daxan 26 (FL), LLC, 180 So. 3d 134, 136 (Fla. 3d DCA 2015). Applying that
standard to the case at hand, we conclude that Bankers Lending had standing to
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move for a lis pendens bond and to provide proof at an evidentiary hearing of
“potential loss or damage she or he will likely incur if the notice of lis pendens is
unjustified.” Licea v. Anllo, 691 So. 2d 29, 30 (Fla. 3d DCA 1997); see also, Med.
Facilities Dev., Inc., v. Little Arch Creek Props. Inc., 675 So. 2d 915, 917–18 (Fla.
1995) (“We agree with Judge Barkdull’s statement that the property-holder
defendant’s right to a bond should be conditioned upon a demonstration of the
potential loss or damage the defendant will likely incur if the notice of lis pendens
is unjustified.”).
The case law also recognizes, however, that the trial court has the discretion
to deny a lis pendens bond in such a circumstance, rejecting “the interpretation that
the statutory reference to injunctions [in section 48.23(3), Florida Statutes (1995)]
requires the lis-pendens proponent to post a bond in every case.” 675 So. 2d at
918. The issue presented here is whether that discretion may be exercised without
affording a party an evidentiary hearing after prospective damages have been
proffered.
During the period from the filing of the original lis pendens (August 2015)
and the recordation of the deed divesting Bankers Lending of title (April 2016), the
lis pendens may have caused Bankers Lending to incur loss or damage,2 as that
2 Bankers Lending’s counsel filed an affidavit in support of its motion for the bond
regarding Bankers Lending’s legal fees incurred as a result of the allegedly-
wrongful lis pendens. Attorney’s fees may be considered by a trial court in setting
the amount of a lis pendens bond if the court concludes that a bond is appropriate.
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was a time when Bankers Lending had “ownership rights in the property.” FCD
Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So. 3d 905, 909 (Fla. 4th DCA 2010)
(citing Penabad, 823 So. 2d at 147). Further, Bankers Lending’s original motion
recited (and Regents did not dispute the recital) that “[t]he parties have agreed that
a separate hearing will determine the amount of the bond.” Here, after reinstating
the lis pendens, the trial court summarily denied Bankers Lending’s motion for a
lis pendens bond without affording Bankers Lending an evidentiary hearing to
prove its prospective loss or damage resulting from the lis pendens.
Having shown a departure from the essential requirements of law that will
cause material injury if the lis pendens is subsequently shown to have been
unjustified, and “effectively leaving no adequate remedy on appeal,” Bankers
Lending is entitled to the issuance of the writ. Martin-Johnson, Inc., v. Savage,
509 So. 2d 1097, 1099 (Fla. 1987).
We grant the petition and quash the order denying Bankers Lending’s
motion for a lis pendens bond. We express no opinion regarding Bankers
Lending’s ability to meet its burden to prove at an evidentiary hearing its loss or
damage likely to be incurred if Bankers Lending ultimately proves that the lis
pendens was unjustified. In the event the trial court finds that a lis pendens bond is
S&T Builders v. Globe Props., Inc., 944 So. 2d 302 (Fla. 2006); McMillan/Miami,
LLC v. Krystal Capital Managers, LLC, 1 So. 3d 312 (Fla. 3d DCA 2009).
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appropriate, the court may condition the continued existence and effectiveness of
the lis pendens upon the filing of the bond.
Petition granted; order quashed.
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