Third District Court of Appeal
State of Florida
Opinion filed July 5, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 16-1032
Lower Tribunal No. 15-16399
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Andrey Tikhomirov,
Appellant,
vs.
The Bank of New York Mellon f/k/a The Bank of New York,
successor to JPMorgan Chase Bank, N.A., as Trustee for Centex
Home Equity Loan Trust 2006-A,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.
Andrey Tikhomirov, in proper person.
McGuireWoods, LLP, and Sara F. Holladay-Tobias, Emily Rottmann, and
Ada Agusti Hammond (Jacksonville), for appellee.
Before LAGOA, FERNANDEZ, and LOGUE, JJ.
LAGOA, J.
Andrey Tikhomirov (“Appellant”) appeals from an order denying a Verified
Emergency Motion to Intervene and Vacate Final Judgment of Foreclosure and
Stay Foreclosure Sale. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
As a result of unpaid assessments by the initial owner of the subject property
(the “Borrower”), the homeowners’ association (the “HOA”) filed an action to
foreclose on a lien for the unpaid assessments. On June 18, 2014, the HOA
obtained a final judgment of foreclosure.
On July 20, 2015, Bank of New York Mellon (“BNYM”) initiated a separate
foreclosure action, which named the Borrower and the HOA, among others, as
defendants. On the same date, BNYM filed a lis pendens in the trial court, and
subsequently recorded the lis pendens in the public records of Miami-Dade County
on July 22, 2015.
While BNYM’s foreclosure action was pending, a foreclosure sale based on
the HOA’s final judgment of foreclosure was held, a Certificate of Sale was issued
to Appellant on October 27, 2015, and a Certificate of Title was issued to
Appellant on November 9, 2015.
On February 24, 2016, the trial court entered an Unopposed Final Judgment
of Foreclosure in favor of BNYM. In this Final Judgment of Foreclosure, the trial
court found that BNYM’s lien was superior to all claims of the named defendants,
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including the HOA, and set a foreclosure sale date for April 7, 2016. The Final
Judgment was subsequently recorded in the public records.
On April 4, 2016, after Final Judgment had been entered in favor of BNYM,
Appellant filed a combined Verified Emergency Motion to Intervene and Vacate
Final Judgment of Foreclosure and Stay Foreclosure Sale. In his Motion to
Intervene, Appellant asserted that: (1) he was entitled to intervene in the
foreclosure action as the record title owner of the property; (2) he was an
indispensable party to the foreclosure action; (3) BNYM had failed to join him as a
defendant to the action prior to the entry of the final judgment; and (4) the final
judgment was therefore void. Appellant also asserted in his Motion to Vacate and
Stay that BNYM had made material misrepresentations regarding its standing to
bring the foreclosure action and that Appellant had been denied due process
because he did not receive an opportunity to be heard prior to the trial court’s entry
of final judgment of foreclosure in favor of BNYM.
Following receipt of the Appellant’s motions, the trial court entered an order
resetting the foreclosure sale and scheduled a hearing on Appellant’s motions.
Following the hearing on Appellant’s motions,1 the trial court in a written order
denied Appellant’s motions, and reinstated the cancelled foreclosure sale.
Specifically, with regard to Appellant’s Motion to Intervene, the trial court denied
1The transcript of the May 3, 2016, hearing has not been made part of the record
on appeal.
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the motion based upon this Court’s decision in Andresix Corp. v. People’s
Downtown National Bank, 419 So. 2d 1107 (Fla. 3d DCA 1982). At the
foreclosure sale held pursuant to BNYM’s Final Judgment of Foreclosure,
Appellant did not exercise his right of redemption and the property was sold on
July 7, 2016. This appeal ensued.
II. ANALYSIS
On appeal, Appellant asserts that the trial court should have allowed
Appellant’s intervention as a matter of equity so that he could protect his interest in
the property. In support of his argument, Appellant cites to Florida Rule of Civil
Procedure 1.230. Although Rule 1.230 provides that “[a]nyone claiming an
interest in pending litigation may at any time be permitted to assert a right by
intervention,” intervention under Rule 1.230 is permissive not mandatory. The
Rule further provides that “the intervention shall be in subordination to, and in
recognition of, the propriety of the main proceeding, unless otherwise ordered by
the court in its discretion.”
Appellant concedes that he purchased the property with notice that it was
subject to BNYM’s foreclosure action and BNYM’s recorded lis pendens.2 It is
2The lis pendens was recorded on July 22, 2015, in the public records of Miami-
Dade County.
The act of recording an instrument in accordance with
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well established that a purchaser of property that is the subject of a pending
foreclosure action is not entitled to intervene in the foreclosure action where a
notice of lis pendens has been recorded. See Andresix, 419 So. 2d at 1107. This
rule stems from the purpose of a notice of lis pendens which “is to notify third
parties of pending litigation and protect its proponents from intervening liens that
could impair or extinguish claimed property rights.” See Centerstate Bank Cent.
Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012).
In Andresix, this Court affirmed the trial court’s order denying Andresix's
motion to intervene in a pending foreclosure action. Specifically, this Court held
that “Andresix, as a purchaser of property which was then the subject of a
mortgage foreclosure action and accompanying lis pendens by Peoples Downtown
National Bank, was not entitled to intervene in such action.” 419 So. 2d at 1107;
see also SADCO, Inc. v. Countrywide Funding, Inc., 680 So. 2d 1072, 1072 (Fla.
3d DCA 1996) (affirming denial of motion to intervene in a residential foreclosure
[Florida’s recording] statute constitutes constructive
notice of a prior encumbrance on the property which is
the subject of the instrument. Constructive notice is a
legal inference, and it is imputed to creditors and
subsequent purchasers by virtue of any document filed in
the grantor/grantee index—the official records.
Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087, 1091 (Fla. 2d DCA
2015) (citations omitted) (alteration in original) (emphasis omitted); see also Fla.
Stat. § 695.11.
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action under the authority of Andresix); Whitburn, LLC v. Wells Fargo Bank,
N.A., 190 So. 3d 1087, 1089 (Fla. 2d DCA 2015) (same). Accordingly,
when property is purchased during a pending foreclosure
action in which a lis pendens has been filed, the
purchaser generally is not entitled to intervene in the
pending foreclosure action. Indeed, if such a buyer
purchases the property, he does so at his own risk
because he is on notice that the property is subject to the
foreclosure action.
Bymel v. Bank of America, N.A., 159 So. 3d 345, 347 (Fla. 3d DCA 2015).
In a similar case, De Sousa v. JP Morgan Chase, N.A., 170 So. 3d 928 (Fla.
4th DCA 2015), our sister court affirmed the trial court’s denial of a purchaser’s
attempt to intervene after final judgment had been entered in a foreclosure
proceeding. Id. at 929. In De Sousa, the homeowners’ association filed an action
to foreclose on a lien for unpaid assessments. While that action was pending, the
bank filed an action to foreclose on a superior mortgage and recorded a lis
pendens. Id. A foreclosure sale was then held in the HOA’s action, and a third
party purchased the property. Id. Final judgment was then entered in the bank’s
foreclosure proceeding, and the third party moved to intervene. Id. The Fourth
District Court of Appeal held that the third-party purchaser could not intervene
because the purchaser had bought the property after the bank’s lis pendens had
been recorded. Id. at 930. The Court also held that the interests of justice did not
require intervention because the purchaser could protect its interest in the property
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by exercising its statutory right of redemption under section 45.0315, Florida
Statutes. Id. at 931.
“The statutory right of redemption allows the mortgagor or the holder of a
subordinate interest to cure the indebtedness and prevent a foreclosure sale up until
the time of the filing of a certificate of sale by the clerk of the court” or the time
specified in the foreclosure judgment.3 De Sousa, 170 So. 3d at 931; § 45.0315,
Fla. Stat. (2016). Here, Appellant did not exercise his statutory right of redemption
and the subject property was sold at the July 7, 2016, foreclosure sale.
Additionally, and similar to the circumstances in De Sousa, because the
mortgage on the property executed by the Borrower was recorded prior to both the
HOA’s lien and Appellant’s purchase of the property, BNYM had priority over any
interest of Appellant. See Westburne Supply, Inc. v. Cmty. Villas Partners, Ltd.,
508 So. 2d 431, 435 (Fla. 1st DCA 1987) (explaining that a lis pendens “serves to
protect the interests of a lien claimant against a subsequent bona fide purchaser by
giving constructive notice of the claim of lien where actual notice has not been
3 Of significance to this appeal, section 45.0315 provides that
[a]t any time before the later of the filing of a certificate
of sale by the clerk of the court or the time specified in
the judgment, order, or decree of foreclosure, the
mortgagor or the holder of any subordinate interest may
cure the mortgagor’s indebtedness and prevent a
foreclosure sale by paying the amount of moneys
specified in the judgment, order, or decree of foreclosure
. . . . Otherwise, there is no right of redemption.
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given”). As such, the lis pendens recorded prior to Appellant’s purchase of the
property placed Appellant on notice of BNYM’s superior claim, and the trial court
properly exercised its discretion to avoid unnecessary protraction of the foreclosure
action in declining to allow Appellant to intervene.
Finally, Appellant argues that the trial court erred in denying his Motion to
Vacate filed pursuant to Florida Rule of Civil Procedure 1.540(b)(3). “Under
Florida Rule of Civil Procedure 1.540(b), relief from judgment is only available
under limited circumstances.” Dawson v. Wachovia Bank, N.A., 61 So. 3d 1218,
1221 (Fla. 3d DCA 2011). A Rule 1.540(b)(3) motion seeking relief from
judgment based upon fraud requires that the purported fraud be stated with
specificity. Specifically,
Florida Rule of Civil Procedure 1.120(b) requires that the
circumstances constituting fraud “be stated with such
particularity as the circumstances may permit.” This
means that a rule 1.540(b)(3) motion must clearly and
concisely set out the essential facts of the fraud, and not
just legal conclusions. To entitle a movant to an
evidentiary hearing, a rule 1.540(b)(3) motion must
specify the fraud. In addition to specifying the fraud, the
motion should explain why the fraud, if it exists, would
entitle the movant to have the judgment set aside.
. . . Requiring rule 1.540(b)(3) fraud to be stated with
particularity allows a trial court to determine whether the
movant has made a prima facie showing which would
justify relief from judgment. . . . If a motion on its face
does not set forth a basis for relief, then an evidentiary
hearing is unnecessary. The time and expense of needless
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litigation are avoided and the policy of preserving the
finality of judgments is enhanced.
Flemembaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994) (citations
omitted); see also Federal Home Loan Mortg. Corp. v. De Souza, 85 So. 3d 1125,
1126 (Fla. 3d DCA 2012) (“If a defendant seeks relief from a judgment based upon
fraud, he must specify the fraud with particularity and explain why the fraud, if it
exists, would change the outcome of the case.”).
“Because a trial court is accorded broad discretion in determining rule
1.540(b) motions, the standard of review of an order on a rule 1.540(b) motion for
relief from judgment is whether there has been an abuse of the trial court’s
discretion.” Freemon v. Deutsche Bank Trust Co. Americas, 46 So. 3d 1202, 1204
(Fla. 4th DCA 2010) (citation omitted); see also Dawson, 61 So. 3d at 1220.
We find that the trial court did not abuse its discretion in denying the motion
for relief from judgment. Appellant neither stated the alleged fraud with sufficient
particularity nor explained why the purported fraud would entitle Appellant to have
the judgment set aside. Indeed, Appellant presented no competent, sworn, or
verified evidence of fraud in his motion to vacate. It is well established that “[t]he
plaintiff must raise a prima facie case of fraud, rather than ‘nibble at the edges of
the concept’ through speculation and supposition.” Federal Home, 85 So. 3d at
1126. Notwithstanding Appellant’s concerns, incorrect or misleading assignments
of mortgage are not by themselves indicative of fraud, as assignments of mortgages
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are not required to transfer mortgages. See WM Specialty Mortg., LLC v.
Salomon, 874 So. 2d 680, 682-83 (Fla. 4th DCA 2004) (holding an assignment
dated post-complaint does not prevent a mortgage assignee from establishing
standing). Accordingly, Appellant’s argument concerning the existence or
nonexistence of an assignment of mortgage or assignment of the note in the public
records would not have changed the outcome of the foreclosure. Because the
Motion to Vacate failed to demonstrate a prima facie case of fraud under Florida
Rule of Civil Procedure 1.540(b), we affirm the trial court’s order denying the
motion.
III. CONCLUSION
Accordingly, we find that as a purchaser of a property which was the subject
of a mortgage foreclosure action and an accompanying recorded lis pendens,
Appellant was not entitled to intervene and the trial court did not abuse its
discretion in denying the motion to intervene. We further find that the trial court
did not abuse its discretion in denying the motion to vacate final judgment and stay
the foreclosure sale.
Affirmed.
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