Third District Court of Appeal
State of Florida
Opinion filed March 11, 2015.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D13-3099
Lower Tribunal No. 12-7660
________________
William J. Bymel,
Appellant,
vs.
Bank of America, N.A.,
Appellee.
An Appeal from an order of the Circuit Court for Miami-Dade County,
Jennifer D. Bailey, Judge.
Krinzman, Huss, Lubetsky, and Cary A. Lubetsky and Aniella Gonzalez, for
appellant.
Albertelli Law (Tampa),1 for appellee.
1 Albertelli Law represented Bank of America in the proceedings below, and
Bymel served Albertelli Law with his notice of appeal. This Court issued an order
directing Bank of America to file an answer brief within ten days from the date of
the order or be precluded from filing a brief and/or presenting an oral argument.
Bank of America failed to file an answer brief as directed by this Court.
Thereafter, this Court issued an order precluding Bank of America from filing an
Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
ROTHENBERG, J.
William J. Bymel (“Bymel”) appeals from an order denying his motion to
intervene in the foreclosure action filed by Bank of America, N.A. against Paul
Everett and Carmell S. Johnson-Everett (collectively, “the Everetts”).2 We find
that the trial court abused its discretion by denying the motion to intervene, and
therefore, we reverse and remand for further proceedings.
After Bank of America filed its foreclosure action against the Everetts and
recorded its lis pendens in 2012, Bank of America approved a short sale of the
Everetts’ property to Bymel in May 2013. Prior to the closing of the short sale,
Bank of America approved the settlement statement that was prepared by the
settlement agent. Then, in June 2013, the short sale transaction closed; the
Everetts executed a warranty deed naming Bymel as the purchaser of the real
property, which deed was later recorded; and the settlement agent initiated a wire
transfer to Bank of America of the short sale proceeds. The wire transfer was not
answer brief or presenting an oral argument unless otherwise ordered, but allowed
Bank of America to file a memorandum of points and authorities in support of its
position. As of this date, Bank of America has not filed anything in this appeal.
2 Bymel also appealed the denial of his motion to continue the non-jury trial
scheduled for December 10, 2013. The non-jury trial did not take place due to
Bymel’s filing of the instant appeal, and therefore, the denial of the motion to
continue is no longer at issue.
2
accepted by Bank of America,3 and thereafter, the settlement agent attempted to
resolve the matter with Bank of America. In October 2013, Bank of America sent
a second letter to the Everetts stating that it was approving the short sale to Bymel.
As requested by Bank of America, the Everetts executed this letter although the
short sale had previously closed and the Everetts had already transferred the
property to Bymel in June 2013. On December 5, 2013, Bank of America
contacted the settlement agent acknowledging that it had received certain
documents but indicated that there had not been a final approval. Bank of America
informed the settlement agent that one of its settlement associates would be in
contact within five days.4
Based on these proceedings, Bymel moved on December 6, 2013, to
continue the non-jury foreclosure trial scheduled for December 10, 2013, and also
moved to intervene in the foreclosure action pursuant to Florida Rule of Civil
Procedure 1.230. Bymel asserted that he has a superior interest in the real property
because he is the present owner of the real property as a result of the short sale
approved by Bank of America. Bymel further asserted that he reasonably
3 At this point, it is unclear why Bank of America refused to accept the short sale
funds after approving the settlement statement and allowing the short sale to
proceed to closing. We note, however, that the short sale approval letter provides
that Bank of America will cancel the approval of the short sale offer and continue
with the foreclosure action if the terms and conditions of the short sale approval
are not met. We offer no opinion as to whether the terms and conditions of the
short sale were met.
4 The short sale proceeds are currently in the settlement agent’s trust account.
3
anticipated that Bank of America would dismiss the foreclosure action, discharge
the notice of lis pendens, and record a satisfaction of mortgage shortly after the
closing of the short sale, thereby clearing title to the real property. The trial court
denied Bymel’s motion to continue the trial and motion to intervene. Bymel’s
appeal followed.
Bymel contends that the trial court abused its discretion by denying his
motion to intervene. See Racing Props., L.P. v. Baldwin.
885 So. 2d 881
, 883 (Fla.
2004) (holding that a trial court’s ruling on a motion to intervene is reviewed for
an abuse of discretion). Under the facts of this case, we agree.
Rule 1.230 provides: “Anyone claiming an interest in pending litigation
may at any time be permitted to assert a right by intervention, but 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.” As stated
earlier, Bymel claims that he has an interest in the pending litigation because he is
the current owner of the real property that is the subject of Bank of America’s
foreclosure action.
We recognize that in Andresix Corp. v. Peoples Downtown National Bank,
419 So. 2d 1107
(Fla. 3d DCA 1982), this Court affirmed the denial of Andresix’s
motion to intervene in a pending foreclosure action, holding that “Andresix, as a
purchaser of property which was then the subject of a mortgage foreclosure action
4
and accompanying lis pendens by Peoples Downtown National Bank, was not
entitled to intervene in such action.” Id. at 1107; see 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 action citing to Andresix for the
proposition that a “purchaser of property that was subject of lis pendens arising
from bank’s foreclosure action was not entitled to intervene in that action”); see
also Timucuan Props., Inc. v. Bank of New York Mellon,
135 So. 3d 524
, 524
(Fla. 5th DCA 2014) (per curiam affirmance citing to SADCO and Andresix). The
rule in Andresix is based on the “concern that to allow purchasers pendente lite to
intervene would unnecessarily protract litigation.” Harrod v. Union Fin. Co.,
420 So. 2d 108
, 108 (Fla. 3d DCA 1982). Thus, 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. See Centerstate Bank
Cent. Fla., N.A. v. Krause,
87 So. 3d 25
, 28 (Fla. 5th DCA 2012) (“[T]he purpose
of a notice of lis pendens is to notify third parties of pending litigation and protect
its proponents from intervening liens that could impair or extinguish claimed
property rights.”). Allowing such a purchaser to intervene would unnecessarily
prolong the foreclosure action.
5
The instant case, however, is factually and materially distinguishable from
Andresix, Harrod, SADCO, and this general rule. Unlike the purchasers in
Andresix, Harrod, SADCO, and most situations where the buyer purchases
property during a pending foreclosure action, Bymel was not a stranger to Bank of
America. Rather, Bank of America was actively involved in Bymel’s purchase of
the real property because it had approved both the short sale of the real property to
Bymel and the settlement statement prepared by the settlement agent prior to the
short sale closing. Therefore, this is not a situation where Bymel believed that he
was purchasing the property subject to the pending foreclosure action and the lis
pendens. Instead, Bymel reasonably believed that following the short sale, Bank
of America would dismiss its foreclosure action against the Everetts, discharge its
notice of lis pendens, and record a satisfaction of its mortgage, thereby clearing
title to the real property.
Based on the facts of this case, we conclude that the trial court abused its
discretion by denying Bymel’s motion to intervene. Accordingly, we reverse the
denial of Bymel’s motion to intervene and remand with instructions to enter an
order allowing Bymel to intervene in the foreclosure action.
Reversed and remanded.
6
