VILLAS OF WINDMILL POINT II PROPERTY OWNERS' ASSOC., INC. v. NATIONSTAR MORTGAGE, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

VILLAS OF WINDMILL POINT II PROPERTY OWNERS' ASSOCIATION,
INC.,
Appellant,

v.

NATIONSTAR MORTGAGE, LLC,
Appellee.

No. 4D16-2128

[ October 25, 2017 ]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Janet C. Croom, Judge; L.T. Case No. 2013CA000201.

Jose D. Sosa of the Law Office of Jose D. Sosa, P.C., North Palm Beach,
for appellant.

Avri S. Ben-Hamo and Steven B. Greenfield of the Greenfield Law
Group, P.A., Boca Raton, for appellee.

TAYLOR, J.

A property owners’ association, Villas of Windmill Point II (the
“Association” or the “Villas Association”), appeals a final judgment
concerning a property owner’s liability for assessments under section
720.3085(2), Florida Statutes (2011). We affirm the final summary
judgment and hold that, although the current parcel owner did not directly
qualify for the safe harbor provision under section 720.3085(2)(c), it did
indirectly benefit from the safe harbor provision because, under section
720.3085(2)(b), it was jointly and severally liable with the prior parcel
owner for all unpaid assessments due up to the time of transfer of title,
and the prior parcel owner did qualify for the safe harbor provision.
However, we remand for the trial court to make certain corrections to the
final judgment consistent with this opinion.

Fannie Mae currently owns a parcel of real property that is part of the
Villas Association. A mortgage was recorded on the property in 2005 in
the amount of $103,600. CitiMortgage later became the holder of the
mortgage, which was the first mortgage on the property. CitiMortgage filed
a mortgage foreclosure complaint against multiple defendants, including
the borrower and the Association. A foreclosure judgment was entered in
favor of CitiMortgage. Following a foreclosure sale, CitiMortgage took title
to the property. CitiMortgage deeded the property to Fannie Mae in 2011.

A dispute arose over whether Fannie Mae was entitled to the protection
of the safe harbor provision of section 720.3085(2)(c), Florida Statutes,
which limits the liability of a first mortgage holder for unpaid assessments.
Fannie Mae’s agent, Nationstar, filed suit against the Association,
asserting three counts in its amended complaint: Count I – an action to
compel the Association’s compliance with the safe harbor provision of
section 720.3085(2)(c), Florida Statutes; Count II – an action for
declaratory relief; and Count III – an action for damages.

Nationstar eventually moved for summary judgment on Counts I and
II. The Association filed an affidavit in response to the motion for summary
judgment, but the affidavit essentially consisted of legal conclusions
concerning the applicability of the safe harbor provision of section
720.3085(2)(c). At Nationstar’s request, the trial court took judicial notice
of the court file in CitiMortgage’s mortgage foreclosure action.

After a hearing on the motion, the trial court granted summary
judgment and entered a final judgment in favor of Nationstar as to Counts
I and II. The court ruled that “Fannie Mae’s liability to [the Association] is
limited to 1% of the original mortgage $1,306.00, plus any monthly
assessments which accrued after CitiMortgage, Inc. took title.” Nationstar
voluntarily dismissed Count III, and the Association now appeals the final
judgment.

The standard of review of an order granting summary judgment is de
novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130
(Fla. 2000).

On appeal, the Association’s primary argument is that Fannie Mae was
not entitled to the safe harbor provision of section 720.3085(2)(c) because
it was not a first mortgagee (or its successor or assignee) that acquired title
to the parcel by foreclosure or by deed in lieu of foreclosure.

Section 720.3085(2), Florida Statutes (2011), governs a parcel owner’s
liability for assessments imposed by a homeowners’ association:

(2)(a) A parcel owner, regardless of how his or her title to
property has been acquired, including by purchase at a
foreclosure sale or by deed in lieu of foreclosure, is liable for

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 all assessments that come due while he or she is the parcel
owner. . . .

(b) A parcel owner is jointly and severally liable with the
previous parcel owner for all unpaid assessments that came
due up to the time of transfer of title. . . .

(c) Notwithstanding anything to the contrary contained in this
section, the liability of a first mortgagee, or its successor or
assignee as a subsequent holder of the first mortgage who
acquires title to a parcel by foreclosure or by deed in lieu of
foreclosure for the unpaid assessments that became due
before the mortgagee’s acquisition of title, shall be the lesser
of:

1. The parcel’s unpaid common expenses and regular
periodic or special assessments that 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

2. One percent of the original mortgage debt.

The limitations on first mortgagee liability provided by this
paragraph apply only if the first mortgagee filed suit against
the parcel owner and initially joined the association as a
defendant in the mortgagee foreclosure action. . . .

(emphasis added).

Here, although Fannie Mae was not “a first mortgagee, or its successor
or assignee as a subsequent holder of the first mortgage who acquire[d]
title to a parcel by foreclosure or by deed in lieu of foreclosure” 1 under
section 720.3085(2)(c), Fannie Mae does indirectly benefit from the safe
harbor provision because, under section 720.3085(2)(b), it is jointly and
severally liable with the prior parcel owner, CitiMortgage, for all unpaid
assessments due up to the time of transfer of title, and CitiMortgage did
qualify for the safe harbor provision.

1Stated plainly, Fannie Mae was never a holder of the first mortgage, and it
acquired title to the property by deed from CitiMortgage only after CitiMortgage
acquired title to the property by foreclosure.

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 CitiMortgage qualified for the safe harbor provision because (1) it was
the successor or assignee of the first mortgagee, (2) it initially joined the
Association as a defendant in the underlying foreclosure action, and (3) it
acquired title to the property by foreclosure. Notably, in this appeal, the
Association does not raise any argument challenging CitiMortgage’s
entitlement to the safe harbor provision.

The Association incorrectly reads section 720.3085(2)(c) in isolation,
ignoring the interpretive principle that statutes must be read as a whole.
See, e.g., Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So. 2d
891, 898 (Fla. 2002). The Association overlooks that, under section
720.3085(2)(b), Fannie Mae’s liability was coextensive with that of
CitiMortgage for all unpaid assessments that were due up to the time of
transfer of title. In other words, CitiMortgage’s entitlement to the safe
harbor protection of section 720.3085(2)(c) is relevant to determining the
amount of Fannie Mae’s “joint and several liability” with CitiMortgage
under section 720.3085(2)(b). Thus, when Fannie Mae acquired title to
the property from CitiMortgage, it became jointly and severally liable with
CitiMortgage for all unpaid assessments owed by CitiMortgage at the time
of transfer of title.

In sum, CitiMortgage qualified for the safe harbor provision of section
720.3085(2)(c), and Fannie Mae is jointly and severally liable with
CitiMortgage for all unpaid assessments that came due up to the time of
transfer of title to Fannie Mae.

None of the Association’s other arguments merit reversal of the
summary judgment. However, we remand for the trial court to correct the
final judgment to reflect that Fannie Mae’s liability for assessments is
limited to $1,036, 2 which is the safe harbor amount under section
720.3085(2)(c)2., 3 plus (a) all assessments that came due while Fannie

2The final judgment incorrectly states that 1% of the original mortgage debt is
$1,306.

3 It was unnecessary for Nationstar to present evidence of the “unpaid common
expenses and regular periodic or special assessments that accrued or came due
during the 12 months immediately preceding the acquisition of title . . . .” §
720.3085(2)(c)1., Fla. Stat. (2011). The safe harbor amount is calculated by
taking the lesser of: (1) unpaid common expenses and assessments that came
due during the 12 months immediately preceding the acquisition of title; or (2)
1% of the original mortgage debt. Thus, even if the 1% of the original mortgage
debt were the greater of the two figures, using the 1% of the original mortgage
debt as the safe harbor amount would not prejudice the Association because it
would overstate the safe harbor amount to the Association’s benefit.

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Mae was the parcel owner, and (b) all unpaid assessments (not merely
unpaid monthly assessments) that came due after CitiMortgage took title
to the property up to the time of transfer of title to Fannie Mae. See §
720.3085(2)(a), (b), Fla. Stat. (2011).

Affirmed and Remanded.

MAY and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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