U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION AS TRUSTEE AS SUCCESSOR BY MERGER TO LASALLE BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR WAMU MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-HY6 TRUST, APPELLANT,
v.
RALPH A. GRANT AND DEBORAH GRANT, HUSBAND AND WIFE, AND PIPERS LANDING, INC., APPELLEE

Fla. 4th DCA | 2015-12-02
No. 4D14-979
MAY and CONNER, JJ., concur.
180 So. 3d 1092 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

U.S. Bank seeks to foreclose on a property subject to both a mortgage lien and a homeowners association assessment lien. The court holds that the mortgage lien takes priority over the association lien because the declaration of covenants lacks the specific language required by Holly Lake to grant the association lien priority over intervening mortgages.


Holding

The mortgagee's lien takes priority over the homeowners association lien. A declaration of covenants must contain specific language indicating that the association's lien relates back to the filing date of the declaration or otherwise takes priority over intervening mortgages to have priority under the "first in time is first in right" rule.


Headnotes

[1] A homeowner's association lien for unpaid assessments does not take priority over a prior recorded mortgagee's lien unless the declaration of covenants contains specific…

[2] The principle of "first in time is first in right" governs the priority of lien interests.

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Key Quotes

“in order for a claim of hen recorded pursuant to a declaration of covenants to have priority over an intervening recorded mortgage, the declaration must contain specific language indicating that the hen relates back to the date of the filing of the declaration or that it otherwise takes priority over intervening mortgages.”

Establishes the controlling legal standard for when an association lien can have priority over a mortgage lien

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Facts & Procedural History

U.S. Bank filed a foreclosure complaint on a mortgage dated March 14, 2007. The property was also subject to a homeowners association (Pipers Landing)…

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Opinion of the Court
GROSS, J.

*1093GROSS, J.

The issue in this case is whether a homeowner’s association lien for unpaid assessments takes priority over the lien of the mortgagee in a foreclosure proceeding. Under the holding of Holly Lake Ass’n v. Federal National Mortgage Ass’n, 660 So.2d 266 (Fla.1995), the mortgagee’s lien takes priority.

The salient facts are not in dispute. U.S. Bank National Association filed a foreclosure complaint based on a mortgage and note dated March 14, 2007.1 Pipers Landing Association, Inc., answered the complaint and denied that its lien interest in the property was inferior to the Bank’s. The Bank’s mortgage was recorded prior to the Association’s delinquency lien against the homeowners and after the recording of the Declaration of Covenants and Restrictions for Pipers Landing.

The Declaration states that any unpaid assessment becomes delinquent on the date due and, along -with interest and the cost of collection, becomes “a continuing lien on the Unit and Equity Certifícate against which the assessment is made, and shall also be the continuing and personal obligation of the Owner against whom the assessment is levied.” Subsection E(3) goes on to say that if charges or assessments are not paid within 30 days after the due date, the Association may record a claim of lien and bring an action to foreclose. Nowhere in the Declaration does it state that any such lien is superior to other hens or that the lien would relate back to the date the Declaration was recorded.

This case is controlled by Holly Lake. In Holly Lake, the association claimed that its lien, recorded after the mortgage, had priority because it related back to the date the declarations were recorded. 660 So.2d at 267-68. The supreme court found that the language of the declaration of covenants “merely granted the Association the right to file a lien in the event of nonpayment.” Id. at 268. The language failed to “put all parties on notice that an ongoing, automatic hen had been created at the time that the property was purchased, and that this hen would continue each month until the owner paid the monthly assessment fee.” Id.

Following the rule governing priority of hen interests: “first in time is first in right,” the court held that the mortgage had priority since it was recorded first. Importantly, the court found that:

in order for a claim of hen recorded pursuant to a declaration of covenants to have priority over an intervening recorded mortgage, the declaration must contain specific language indicating that the hen relates back to the date of the filing of the declaration or that it otherwise takes priority over intervening mortgages.

Id. at 269. Here, the Declaration does not contain the language required by Holly Lake to give the Association’s hen priority over that of the Bank.

We have considered and reject the Association’s argument that the Bank’s failure to file exceptions to the special master’s report precludes appellate review. See Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So.3d 348, 356 (Fla. 4th DCA 2011); Aspsoft, Inc. v. WebClay, 983 So.2d 761, 764 n. 1 (Fla. 5th DCA 2008).

Reversed and Remanded.

MAY and CONNER, JJ., concur.


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Citator

Cited By

  • Winchel v. Pennymac Corp., 222 So. 3d 639 (Fla. 2d DCA 2017)
    …. Dep’t of Children & Family Servs., 86 So. 3d 556, 560 (Fla. 2d DCA 2012) (holding that the failure to file exceptions to a report and recommendations in the juvenile -context did not bar raising an issue on appeal); U.S. Bank Nat'l Ass'n v. Grant, 180 So. 3d 1092, 1093 (Fla. 4th DCA 2015) ("We have considered and reject the Association's argument that the, Bank’s failure to .file exceptions to the special master’s report precludes appellate review.”); Aspsoft, Inc. v. WebClay, 983 So. 2d 761, 764 n.1 (Fla. 5…

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