SAILBOAT KEY DEVELOPERS AND AMERICAN ADVISORY CORP. AND SAILBOAT KEY, INC., APPELLANTS,
v.
SUN BANK AND MARTIN Z. MARGULIES, APPELLEES; SAILBOAT KEY DEVELOPERS, A CO-PARTNERSHIP, AMERICAN ADVISORY CORP., AND SAILBOAT KEY, INC., APPELLANTS, V. CITY OF MIAMI, A MUNICIPAL CORPORATION, SOUTHEAST FIRST NATIONAL BANK OF MIAMI, AS TRUSTEE, ARKIN CONSTRUCTION COMPANY, ROBERT L. TURCHIN, MARTIN Z. MARGULIES AND SUN BANK OF BAL HARBOUR, N. A., AS TRUSTEE, APPELLEES
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Sailboat Key Developers and related entities appealed summary judgments dismissing their attempts to recover a houseboat and building permit fees from the proceeds of a 1975 foreclosure sale. The court affirmed, holding that the appellants' collateral attacks on the foreclosure judgment were untimely and procedurally improper.
The court held that appellants' collateral attacks on the 1975 foreclosure judgment were untimely and procedurally improper. A final judgment of foreclosure cannot be modified or vacated by collateral attack more than a year later where the trial court had jurisdiction, and issues concerning the validity of the foreclosure sale should have been raised in the original foreclosure suit or direct appeal.
[1] A final judgment of foreclosure is not subject to collateral attack when the trial court had jurisdiction of the subject matter and the parties.
[2] Claims that property was improperly included in a foreclosure sale must be raised in the original foreclosure action or on appeal from that judgment, not in subsequent co…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“These collateral attacks on the 1975 foreclosure judgment should have been raised in the foreclosure suit and the appeal from that judgment. They are not appropriately raised in this proceeding.”
Establishes that procedural rules require foreclosure defenses to be raised in the original action, not in subsequent separate suits.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1975, appellants' mortgage on Fair Island in Biscayne Bay was foreclosed for $8,000,000. The foreclosure sale included a houseboat moored to the is…
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PER CURIAM.
Appellants take these consolidated appeals from separate summary final judgments adversely entered against them below. Appeal No. 78-606 arose from a summary final judgment in favor of appel-lees/defendants Sun Bank and Martin Z. Margulies in a replevin action initiated by the appellants in which they sought to recover possession of a houseboat. Appeal No. 78-1052 is taken from an adverse summary final judgment in an action to recover monies paid to the City of Miami for certain building permits originally issued to the appellants.
Both of the actions below represent a collateral attack by the appellants on a 1975 final judgment of foreclosure entered in the Circuit Court of the 11th Judicial Circuit. In that suit the appellants suffered foreclosure of a mortgage on Fair Island, a small island located in Biscayne Bay which they planned to develop. A houseboat was moored to the island. To further their development plans, the appellants obtained certain building permits from the City of Miami costing approximately $60,000.
The amount foreclosed on the appellants’ mortgage was $8,000,000 and among the property subsequently sold at the foreclosure sale were the houseboat and the building permits. Because of the amount involved after foreclosure, a deficiency judgment was sought by the purchasers at the foreclosure sale. That relief was ultimately denied by the trial court and affirmed on appeal. Spencer v. American Advisory Corp., 338 So. 2d 62 (Fla. 3d DCA 1976), cert. denied 348 So. 2d 953 (Fla.1977). The appellants also appealed the final judgment of foreclosure itself but voluntarily dismissed that appeal in August 1976.
Appellants brought these separate suits in September 1977 in order to recover the houseboat and the $60,000 that they paid for the building permits. They contended that neither the houseboat nor the building permits had been foreclosed by the earlier final judgment of foreclosure and that they were the true owners of the property. In the case represented by Appeal No. 78-606, they sought to replevin the houseboat from its present owners, the appellees Sun Bank and Martin Z. Margulies. In the case represented by Appeal No. 78-1052, the appellants sought to recover the money that they paid to the City of Miami for the building permits. The other appellees in this appeal represent successor interests to those building permits made parties below by the City’s third party complaint.
We agree with both courts below that the appellants’ actions were untimely and that they, in effect, seek to modify or vacate the final judgment of foreclosure. See Fla.R. Civ.P. 1.540. We, therefore, affirm the summary final judgments.
These collateral attacks on the 1975 foreclosure judgment should have been raised in the foreclosure suit and the appeal from that judgment. They are not appropriately raised in this proceeding. The final judgment of foreclosure is not subject to collateral attack where the trial court had jurisdiction of the subject matter and of the parties. Varnes v. Kirk, 251 So. 2d 324 (Fla. 1st DCA 1971); Goldfarb v. Cantor, 123 So. 2d 50 (Fla. 3d DCA 1960). The appellants voluntarily dismissed their appeal and chose not to raise any issues concerning the validity of the foreclosure sale of the houseboat and building permits.
The final judgment of foreclosure cannot now be modified or vacated more than a year later whether by motion pursuant to Fla.R.Civ.P. 1.540(b) or by collateral attack in the separate actions filed below. Cf. Seven-Up Bottling Co. v. George Construction Corp., 153 So. 2d 11 (Fla. 3d DCA 1963) (decree of foreclosure could not be vacated on ground of newly discovered evidence when motion to vacate was filed more than one year later). Accordingly, the summary final judgments were properly entered against the appellants.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Marco Tech. Corp. v. Reynolds, 520 So. 2d 63 (Fla. 4th DCA 1988)…is a collateral attack on the Glades County foreclosure. The final judgment of foreclosure is not subject to collateral attack where the trial court had jurisdiction of the subject matter and of the parties. See Sailboat Key Developers v. Sun Bank, 367 So. 2d 1093 (Fla. 3d DCA 1979). As in Sailboat Key, appellant now seeks to modify the final judgment of foreclosure of Glades County by eliminating from its scope the 1982 equipment. This collateral attack should have been raised in the Glades County foreclosur…
Authorities Cited
- Seven-Up Bottling Co. OF Miami, Inc. v. George Constr. Corp., 153 So. 2d 11 (Fla. 3d DCA 1963)
- Spencer v. Am. Advisory Corp., 338 So. 2d 62 (Fla. 3d DCA 1976)
- Varnes v. Kirk, 251 So. 2d 324 (Fla. 1st DCA 1971)
- Bus. Finders, Inc. v. Winston, 123 So. 2d 50 (Fla. 3d DCA 1960)