DITECH FINANCIAL LLC, F/K/A GREEN TREE SERVICING LLC, APPELLANT,
v.
VELETTA M. WHITE, ET AL., APPELLEES
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Ditech Financial appealed a trial court's dismissal of a mortgage foreclosure action for lack of subject matter jurisdiction. The trial court misinterpreted Florida Statute § 48.23(1)(d), which bars enforcement of unrecorded liens after a lis pendens is filed, but does not prohibit a mortgagee with a pre-existing recorded interest from filing a separate foreclosure action.
The trial court lacked authority to dismiss the foreclosure action for lack of subject matter jurisdiction. Section 48.23(1)(d), Florida Statutes, only precludes enforcement of liens that were unrecorded at the time the lis pendens was recorded. Because Ditech's mortgage was recorded years before the association's lis pendens, Ditech was free to file its own foreclosure action.
[1] A trial court errs in dismissing a foreclosure action for lack of subject matter jurisdiction based on a misinterpretation of Florida Statutes section 48.23(1)(d).
[2] Florida Statutes section 48.23(1)(d) precludes enforcement of liens unrecorded at the time a notice of lis pendens is recorded.
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“Section 48.23(l)(d), Florida Statutes, only acts to preclude enforcement of liens unrecorded at the time a lis pendens is recorded.”
The court's interpretation of the controlling statute, establishing that the statute does not bar a mortgagee with a pre-recorded interest from filing a separate foreclosure action.
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Join FLexlaw to unlock all legal intelligenceDitech Financial held a mortgage note recorded in August 2006. In February 2015, the homeowners' association recorded a lis pendens and filed a separa…
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Ditech Financial, LLC, f/k/a Green Tree Servicing, LLC (“Bank”), appeals the final order of dismissal entered in favor of Val-etta White (“Homeowner”). The Bank asserts that the trial court improperly granted the Homeowner’s motion to dismiss the complaint for lack of subject matter jurisdiction. We agree and reverse.
The Homeowner executed a note and mortgage in favor of the lender.1 The note and mortgage were recorded in August 2006. The Bank filed a mortgage foreclosure action against the Homeowner and others in March 2015, due to non-payment on the note (the “Foreclosure Action”). The Courts of Inverrary Condominium Association, the homeowners’ association for the subject property (the “Association”), was a named defendant in the Foreclosure Action. A month earlier, in February 2015, the Association recorded a lis pendens and filed a separate lien foreclosure action against the Homeowner. The Bank was not a named party in the Association’s foreclosure action.2 In July 2015, a default was entered against the Homeowner in the Foreclosure Action. On March 23, 2016, a Final Judgment of Foreclosure was entered against the Homeowner and all named defendants. A foreclosure sale was set for April 27,2016.
On April 1, 2016, the Homeowner filed a pleading entitled “Verified Motion to Vacate Default, Dismiss Complaint for Lack of Subject Matter Jurisdiction, Vacate Judgment as Void” (the “Motion”). The Motion primarily relied upon section 48.23(l)(d), Florida Statutes (2016). Section 48.23(l)(d), Florida Statutes, provides in part that the recording of a notice of lis pendens “constitutes a bar to the enforcement .,, of all interests and liens ... unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice.” (Emphasis added). The Homeowner argued the trial court lacked subject matter jurisdiction over the Foreclosure Action inasmuch as the Bank improperly filed the Foreclosure Action versus intervening in the Association’s lien *605foreclosure action. It was the Homeowner’s position that section 48.23(l)(d), Florida Statutes, barred the Bank from separately filing the Foreclosure Action, and required the Bank to intervene in the Association’s lien foreclosure action to seek a foreclosure remedy against the Homeowner. The lower court agreed with the Homeowner’s argument, granted the Motion, and dismissed the Foreclosure Action.3
We conclude the trial court erred when it found the court lacked subject matter jurisdiction over the Foreclosure Action. The lower court’s ruling was based upon a misinterpretation of section 48.23(l)(d), Florida Statutes. Section 48.23(l)(d), Florida Statutes, only acts to preclude enforcement of liens unrecorded at the time a lis pendens is recorded. It is undisputed that the Bank recorded its interest in the subject property years prior to the Association’s lis pendens filing/lien foreclosure action. The Bank was free to separately file the Foreclosure Action. The trial court did not lack subject matter jurisdiction.
Based upon the foregoing, we reverse the trial court’s final order of dismissal and order vacating default, and remand for further proceedings consistent with this opinion.
Ciklin and Klingensmith, JJ., concur.