Decided on September 14, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P. 
SHERI S. ROMAN 
JEFFREY A. COHEN 
FRANCESCA E. CONNOLLY, JJ.
2015-07269 
2015-07270 
(Index No. 9866/10) 

DECISION & ORDER

ORDERED that the appeal from the order dated December 17, 2014, is dismissed, as the portion of the order appealed from was superseded by the order dated January 5, 2015; and it is further,

ORDERED that the order dated January 5, 2015, is reversed, on the law, the plaintiff’s motion for summary judgment on the complaint, to strike the answer of the defendant Phillippa Royal, to amend the caption, and to appoint a referee to compute the amount due to the plaintiff is denied, and so much of the order dated December 17, 2014, as granted the plaintiff’s motion, inter alia, for summary judgment is vacated; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

. . .

The plaintiff failed to demonstrate the admissibility of the records relied upon by Roesner under the business records exception to the hearsay rule (see CPLR 4518[a]), and, thus, failed to establish the appellant’s default in payment under the note. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures”

. . .

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, since the plaintiff failed to meet its prima facie burden, its motion should have been denied, regardless of the sufficiency of the appellant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

BALKIN, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Michael E. Rodriguez of Foreclosure Defense Law Firm, P.L., Tampa, for Appellants.

Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellee.

LaROSE, Judge.

Yogendra and Bharti Dhanik appeal a final judgment of foreclosure. The Dhaniks argue, and HSBC Bank USA concedes, that the bank failed to present sufficient trial evidence of standing at the time it filed the complaint.

“This court reviews the sufficiency of the evidence to prove standing to bring aforeclosure action de novo.” Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1040 (Fla. 4th DCA 2015).

“A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that the (original) plaintiff had standing as of the time the foreclosure complaint was filed.” Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015) (quoting Keifert v. Nationstar Mortg., LLC, 153 So. 3d 351, 352 (Fla. 1st DCA 2014)). “If the plaintiff is not the payee of the original note, the plaintiff must also prove that the original note contains an [e]ndorsement in favor of the plaintiff (special [e]ndorsement) or an [e]ndorsement in blank.” Id. To establish standing, the endorsement “must have been made prior to the filing of the lawsuit.” Id.

Although the bank attached a copy of the mortgage and note to the complaint, those copies lacked any endorsement to the bank or a blank endorsement. The note introduced at trial contained a blank endorsement. However, the bank offered no evidence as to when the blank endorsement was placed on the note. Thus, there was no evidence before the trial court that the bank had standing at the time theforeclosure complaint was filed. “The bank’s failure to prove a prima facie case warrants dismissal.” May v. PHH Mortg. Corp., 150 So. 3d 247, 249 (Fla. 2d DCA 2014).

As in Russell and May, we reverse and remand for the trial court to enter an order of involuntary dismissal based on the bank’s lack of standing at the time it filed the complaint.

Reversed and remanded with instructions.

NORTHCUTT and SLEET, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

You all recall that Wells Fargo Home Mortgage Foreclosure Attorney Procedure Manual, Version 1 Status: Revision 3 Origination Date: 11/09/2011 Date Last Published: 02/24/2012?

Consumerist-

Financial regulators recently ordered Wells Fargo to pay $185 million to resolve allegations that the bank’s sales quotas and incentives pushed employees to open millions of unauthorized accounts, but that my not be the end of Wells’ troubles, with the U.S. Department of Justice now looking into the matter.

Federal prosecutors in U.S. attorney’s offices in New York and San Francisco are in the early stages of an investigation related to the bank’s alleged improper sales tactics that started in 2013, The Wall Street Journal reports, citing sources familiar with the matter.

The investigation centers on whether someone in senior management within the bank directed employees to falsify documents in conjunction with the opening of more than one million accounts and other banking products without customers’ knowledge.

[CONSUMERIST]

Senator also asks FBI to release related investigative materials, citing precedent set by release of Sec. Clinton email investigation records

CrossPost from Mandelman Matters

Foreclosure defense attorney Nick Wooten has been making headlines as a consumer attorney since the earliest days of the foreclosure crisis.

Nick became quite well known around the country for his high profile, David v. Goliath type cases.  He sued Lender Processing Services (LPS)… he went after MERS… and he won a landmark case in Alabama, of all places, Horace v. LaSalle Bank, in which the judge ruled that the note was not properly endorsed and negotiated into the trust and therefore the trust could not foreclose.

Nick is now practicing law in Chicago, Illinois… he’ll explain why during the interview… and on this Mandelman Matters Podcast he also explain why he is focusing on cases he refers to as: “Break In Cases.”

Homeowners in the middle of loan modifications or short sales… or sometimes the homeowners are current on their mortgages, believe it or not… they come home from work one day to learn that they’ve been locked out of their homes.  When they finally get inside they discover that everything they owned… is gone.  Sold or taken to the dump.  Baby pictures, clothing, appliances, jewelry… precious memories that can never be replaced.

Most of us can remember reading about this sort of thing happening in the early years of the foreclosure crisis, and you’ll be shocked to learn that it’s still happening every day in this country, according to Nick.

(I didn’t know this was still happening, so I did some research and, of course, Nick’s absolutely right.  How can this sort of thing go on without making the news in this country?  That I’ll never fully understand.)

Nick is now representing homeowners who have been victimized in this outrageous and deplorable way by their banks and mortgage servicers, and he wants to talk to homeowners in Illinois and elsewhere who have been forced to endure this special kind of hell.  

In addition, attorneys representing homeowners will want to listen Nick talk about his plan to put a stop to this “accidental” practice by making it so expensive that the banks stop doing it.

(You can reach Nick in Chicago by contacting: Sulaiman Law 

or you can email me: mandelman@mac.com and I’ll put you in touch.)

This is both important and shocking.  You really don’t want to miss this Mandelman Matters Podcast so be sure your speakers are turned up and click PLAY below.

Mandelman out. 

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20392

ROXANNE DAUGHERTY,
Plaintiff – Appellant

v.

CONVERGENT OUTSOURCING, INCORPORATED; LVNV FUNDING,
L.L.C.,
Defendants – Appellees

Appeal from the United States District Court
for the Southern District of Texas

Before DENNIS, ELROD, and GRAVES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:

The issue presented by this appeal is whether a collection letter for a
time-barred debt containing a discounted “settlement” offer—but silent as to
the time bar and without any mention of litigation—could mislead an
unsophisticated consumer to believe that the debt is enforceable in court, and
therefore violate the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§§ 1692-1692p. After receiving such a letter, the plaintiff credit card debtor
sued the defendant debt collectors pursuant to the FDCPA. The district court
dismissed the complaint, holding that efforts to collect time-barred debts
without threatening or filing suit do not violate the FDCPA. We reverse.

ABCNEWS-

The New York State attorney general’s office has opened a broad inquiry into the Trump Foundation, the office confirms.

The inquiry concerns, among other things, Donald Trump buying a portrait of himself and a donation to a group supporting Florida Attorney General Pam Bondi, a Trump supporter, according to a source in the office.

The question is whether Trump Foundation made accurate disclosures, a source said. Further details about the portrait and other donations were not immediately available.

[ABC NEWS]

JOHN DIROBERTO and ROMI DIROBERTO, Appellants,
v.
BAYVIEW LOAN SERVICES LLC, ANY AND ALL UNKNOWN PARTIES CLAIMING BY THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS, TENANT #1, TENANT #2, TENANT #3 and TENANT #4 the names being fictitious to account for parties in possession, Appellees.

Jonathan Kline of Jonathan Kline, P.A., Weston, for appellants.

Michael J. Eisler of Straus & Eisler, P.A., Weston, for Appellee Bayview Loan Services LLC.

PER CURIAM.

We reverse the final judgment of foreclosure and remand for entry of an involuntary dismissal. There was no proof at trial that the original plaintiff, JP Morgan Chase, had standing to foreclose when it filed the original complaint. See Snyder v. JP Morgan Chase Bank, Nat’l Ass’n, 169 So. 3d 1270, 1271-74 (Fla. 4th DCA 2015) (holding that Chase failed to prove standing where it did not prove it had possession of the note when it filed suit, and rejecting the argument that Chase established its right to foreclose through the Purchase Agreement between the FDIC and Chase for the assets of WAMU). In light of this disposition, it is unnecessary to reach the other issues raised on appeal.

Reversed.

WARNER, TAYLOR and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

CNN MONEY-

Wells Fargo CEO John Stumpf is being called on by Senator Elizabeth Warren and her Senate colleagues to testify on his bank’s stunning fake account scandal.

Warren joined four other Senate Democrats on Monday in demanding the U.S. Senate banking committee hold “immediate” hearings to “fully investigate the matter.”

“This was a staggering fraud,” Warren told CNN’s Jake Tapper last week.

[CNN MONEY]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

CNN MONEY –

Relentless pressure. Wildly unrealistic sales targets. Employees leaning on family members and friends to open unnecessary bank accounts.

That’s how more than a dozen former Wells Fargo employees described the bank’s culture to CNNMoney.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

SAM KANIU et al.,
Plaintiffs and Appellants,

v.

EMC MORTGAGE CORPORATION et al.,
Defendants and Respondents.

Kaniu v EMC by DinSFLA on Scribd

FORTUNE –

Wells Fargo & Co’s WFC -0.37% “sandbagger”-in-chief is leaving the giant bank with an enormous pay day—$124.6 million.

In fact, despite beefed-up “clawback” provisions instituted by the bank shortly after the financial crisis, and the recent revelations of massive misconduct, it does not appear thatWells Fargo is requiring Carrie Tolstedt, the Wells Fargo executive who was in charge of the unit where employees opened more than 2 million largely unauthorized customer accounts—a seemingly routine practice that employees internally referred to as “sandbagging”—to give back any of her nine-figure pay.

On Thursday, Wells Fargo WFC -0.37% agreed to pay $185 million, including the largest penalty ever imposed by the Consumer Financial Protection Bureau, to settle claims that that it defrauded its customers. The bank’s shareholders will ultimately have to swallow the cost of that settlement. The bank also said it had fired 5,300 employees over five years related to the bad behavior.

[FORTUNE]

MARKET WATCH –

The news that Wells Fargo secretly created over two million accounts generated outrage across the country.

Wells Fargo WFC, -0.37% said it regrets and takes responsibility for “any instances where customers may have received a product that they did not request.” It’s refunded $2.6 million, or an average of $25, to customers who were impacted.

But a look at a database of customer complaints finds that issues of account openings and closings are not limited to that bank — raising at least the possibility that the practice could go on elsewhere. The database, from the Consumer Financial Protection Bureau, shows over 30,000 complaints on the issue of “account opening, closing or management.”

[MARKET WATCH]

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

.

Sunday – September 11, 2016

Foreclosure Workshop #21: Saterbak v. JPMorgan Chase Bank and Lucioni v. Bank of America — A Case Study on How Not To Argue and How Not To Decide a Foreclosing Mortgagee’s Standing or Lack Thereof in Foreclosure Actions
——————–

The number one issue in foreclosure litigation today continues to be whether the plaintiff has standing to foreclose, which is generally regarded as a threshold jurisdictional requirement otherwise mandating dismissal.

Yet both homeowners’ attorneys and trial and appellate judges alike continue to misfocus their attention by misapplying legal doctrines in the resolution of standing issues.

The purpose of Foreclosure Workshop #21 is to expose and learn from those deficiencies in the context of recent post-Yvanova California appellate cases, in the hope of improving both foreclosure defense advocacy and judicial decision making in this vital area of consumer rights.

EVERY SUNDAY 3:00 PM HAWAII 6:00 PM PACIFIC 9:00 PM EASTERN ON KHVH-AM (830 ON THE DIAL) AND ON iHEART RADIO

LAS VEGAS REVIEW-

CARSON CITY — A case that could affect the validity of thousands of Las Vegas foreclosure sales stemming from the real estate crisis that began nearly a decade ago was heard Thursday by the Nevada Supreme Court.

The court is now expected to rule on the question of the constitutionality of the nonjudicial foreclosure process used by investors and speculators to acquire homes at a fraction of their value by paying off liens held by homeowners associations.

[…]

Because of the legal disputes and questions over ownership, none of the properties can be sold because they have clouded titles. It will take additional rulings from Nevada and federal courts to finally resolve the issue for all of the involved parties.

[LAS VEGAS REVIEW]

image source and available for purchase: AllPosters.com

CNBC-

Halloween isn’t here just yet, but the zombies are already multiplying by the thousand — zombie foreclosures.

After having left the worst remnants of the housing crash in foreclosure limbo-land, banks are now taking those vacant, foreclosed homes and selling them at a fast clip. They are the so-called zombie foreclosures.

The result is that the numbers have shifted. Vacant homes in the foreclosure process are expected to drop 9 percent in the third quarter from a year ago, but vacant bank-owned properties are expected to jump 67 percent during the period, according to ATTOM Data Solutions. There are now just over 46,600 vacant bank-owned properties (known as REOs) littering neighborhoods nationally.

[CNBC]

CNN-

Everyone hates paying bank fees. But imagine paying fees on a ghost account you didn’t even sign up for.

That’s exactly what happened to Wells Fargo customers nationwide.

On Thursday, federal regulators said Wells Fargo employees secretly created millions of unauthorized bank and credit card accounts — without their customers knowing it — since 2011.

[CNN]

Bank Incentives to Boost Sales Figures Spurred Employees to Secretly Open Deposit and Credit Card Accounts

WASHINGTON, D.C. — Today the Consumer Financial Protection Bureau (CFPB) fined Wells Fargo Bank, N.A. $100 million for the widespread illegal practice of secretly opening unauthorized deposit and credit card accounts. Spurred by sales targets and compensation incentives, employees boosted sales figures by covertly opening accounts and funding them by transferring funds from consumers’ authorized accounts without their knowledge or consent, often racking up fees or other charges. According to the bank’s own analysis, employees opened more than two million deposit and credit card accounts that may not have been authorized by consumers. Wells Fargo will pay full restitution to all victims and a $100 million fine to the CFPB’s Civil Penalty Fund. The bank will also pay an additional $35 million penalty to the Office of the Comptroller of the Currency, and another $50 million to the City and County of Los Angeles.

“Wells Fargo employees secretly opened unauthorized accounts to hit sales targets and receive bonuses,” said CFPB Director Richard Cordray. “Because of the severity of these violations, Wells Fargo is paying the largest penalty the CFPB has ever imposed. Today’s action should serve notice to the entire industry that financial incentive programs, if not monitored carefully, carry serious risks that can have serious legal consequences.”

The full text of the CFPB’s Consent Order can be found at:http://files.consumerfinance.gov/f/documents/092016_cfpb_WFBconsentorder.pdf

Wells Fargo, headquartered in Sioux Falls, S.D., is one of the biggest banks in the country and offers many consumer financial products and services, including savings and checking accounts, credit cards, debit and ATM cards, and online-banking services. In recent years, the bank has sought to distinguish itself in the marketplace as a leader in “cross selling” these products and services to existing customers who did not already have them. When cross selling is based on efforts to generate more business from existing customers based on strong customer satisfaction and excellent customer service, it is a common and accepted business practice. But here the bank had compensation incentive programs for its employees that encouraged them to sign up existing clients for deposit accounts, credit cards, debit cards, and online banking, and the bank failed to monitor the implementation of these programs with adequate care.

According to today’s enforcement action, thousands of Wells Fargo employees illegally enrolled consumers in these products and services without their knowledge or consent in order to obtain financial compensation for meeting sales targets. The Dodd-Frank Wall Street Reform and Consumer Protection Act prohibits unfair, deceptive, and abusive acts and practices. Wells Fargo’s violations include:

• Opening deposit accounts and transferring funds without authorization: According to the bank’s own analysis, employees opened roughly 1.5 million deposit accounts that may not have been authorized by consumers. Employees then transferred funds from consumers’ authorized accounts to temporarily fund the new, unauthorized accounts. This widespread practice gave the employees credit for opening the new accounts, allowing them to earn additional compensation and to meet the bank’s sales goals. Consumers, in turn, were sometimes harmed because the bank charged them for insufficient funds or overdraft fees because the money was not in their original accounts.
• Applying for credit card accounts without authorization: According to the bank’s own analysis, Wells Fargo employees applied for roughly 565,000 credit card accounts that may not have been authorized by consumers. On those unauthorized credit cards, many consumers incurred annual fees, as well as associated finance or interest charges and other fees.
• Issuing and activating debit cards without authorization: Wells Fargo employees requested and issued debit cards without consumers’ knowledge or consent, going so far as to create PINs without telling consumers.
• Creating phony email addresses to enroll consumers in online-banking services: Wells Fargo employees created phony email addresses not belonging to consumers to enroll them in online-banking services without their knowledge or consent.

Enforcement Action

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB has the authority to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices. Today’s order goes back to Jan. 1, 2011. Among the things the CFPB’s order requires of Wells Fargo:

• Pay full refunds to consumers: Wells Fargo must refund all affected consumers the sum of all monthly maintenance fees, nonsufficient fund fees, overdraft charges, and other fees they paid because of the creation of the unauthorized accounts. These refunds are expected to total at least $2.5 million. Consumers are not required to take any action to get refunds to which they are entitled.
• Ensure proper sales practices: Wells Fargo must hire an independent consultant to conduct a thorough review of its procedures. Recommendations may include requiring employees to undergo ethical-sales training and reviewing the bank’s performance measurements and sales goals to make sure they are consistent with preventing improper sales practices.
• Pay a $100 million fine: Wells Fargo will pay a $100 million penalty to the CFPB’s Civil Penalty Fund. Today’s penalty is the largest the CFPB has imposed to date.

Manuel Farach of McGlinchey Stafford, Fort Lauderdale, for appellant.

Susan L. Trevarthen, Laura K. Wendell, and Eric P. Hockman of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for appellee.

Heather K. Judd and Jordan R. Wolfgram, St. Petersburg, for Amicus Curiae City of St. Petersburg.

Alexander L. Palenzuela of Law Offices of Alexander L. Palenzuela, P.A., Miami, for Amicus Curiae City of Coral Gables.

FORST, J.

This case involves the application of Florida’s lis pendens statute, section 48.23, Florida Statutes, to liens placed on property between a final judgment of foreclosure and the judicial sale. We agree with the Appellee, Town of Lauderdale-by-the-Sea (“the Town”), and hold that liens placed on property during this time window are not discharged by section 48.23. We affirm without discussion with respect to any other challenges to the trial court’s entry of summary judgment.

Background

On November 26, 2007, a non-party bank recorded a lis pendens on the subject property as part of a foreclosure proceeding against a non-party homeowner. On September 22, 2008, the bank obtained a final judgment of foreclosure. Beginning on July 13, 2009, and continuing through October 27, 2011, the Town recorded a total of seven liens on the property related to various code violations.^[1] These liens all stemmed from violations occurring after the final judgment was entered.

On September 27, 2012, the property was sold at a foreclosure sale to the Appellant, James Ober (“the Property Owner”). Shortly thereafter, the clerk issued the certificate of title. Beginning on February 26, 2013, the Town imposed three more liens on the property.

The Property Owner filed suit to quiet title, attempting to strike the liens against his property. The Town counterclaimed to foreclose the liens. Both parties moved for summary judgment. The trial court granted the Town’s motion (and denied the Property Owner’s motion) and entered a final judgment of foreclosure on the ten liens. This appeal followed.

Analysis

The issue in this case is the interpretation of a statute, which we review de novo. Brown v. City of Vero Beach, 64 So. 3d 172, 174 (Fla. 2011). The statute at issue here states, in relevant part:

[T]he recording of . . . lis pendens . . . constitutes a bar to the enforcement against the property described in the notice 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. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in the notice, the property shall be forever discharged from all such unrecorded interests and liens. . . .

§ 48.23(1)(d), Fla. Stat. This statute “not only bars enforcement of an accrued cause of action, but may also prevent the accrual of a cause of action when the final element necessary for its creation occurs beyond the time period established by the statute.” Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 1253 (Fla. 5th DCA 2010).

By its terms, section 48.23(1)(d) does not provide an end date for the lis pendens. In order to avoid the absurd result of a lis pendens precluding any lien from ever being placed on the property into perpetuity, see Maddox v. State, 923 So. 2d 442, 448 (Fla. 2006) (avoiding absurd results), the parties both urge this Court to apply an implied end date to the lis pendens. The Town argues that the lis pendens applies only to liens existing or accruing prior to the date of final judgment, whereas the Property Owner argues that the lis pendens continues to the date of the judicial sale, which in this case was over four years later.

In attempting to discern which of these dates was intended by the legislature to be the operative “shut off” date, we read the statute “in the context in which it is found and in conjunction with related statutory provisions.” Maddox, 923 So. 2d at 448. One of the related provisions is section 48.23(1)(a), which states that “[a]n action in any of the state or federal courts in this state operates as a lis pendens . . . only if a notice of lis pendens is recorded.” The plain meaning of this provision indicates that the action itself is the actual lis pendens, which takes effect if and when a notice is filed. The lis pendens therefore logically must terminate along with the action. The “action” in this case was the foreclosure action initiated by the non-party bank, which terminated thirty days after the court’s issuance of a final judgment.^[2]

Although it does not appear to have been a litigated issue, this conclusion has been reached by this Court and other District Courts of Appeal in the past. See U.S. Bank Nat’l Ass’n v. Quadomain Condo. Ass’n, 103 So. 3d 977, 979-80 (Fla. 4th DCA 2012) (“[T]he court presiding over the action which created the lis pendens has exclusive jurisdiction to adjudicate any encumbrance or interest in the subject property from the date the lis pendens is recorded to the date it enters final judgment” (emphasis added)); Seligman v. N. Am. Mortg. Co., 781 So. 2d 1159, 1196 (Fla. 4th DCA 2001) (“[T]he court in the dissolution proceeding had jurisdiction over the property until final judgment . . . .” (emphasis added)); Hotel Eur., Inc. v. Aouate, 766 So. 2d 1149, 1151 (Fla. 3d DCA 2000) (“Because a Final Judgment has been entered, the instant case is no longer pending and thus the Notice of Lis Pendens is no longer valid”); Marchand v. De Soto Morg. Co., 149 So. 2d 357, 359 (Fla. 2d DCA 1963) (“[T]he doctrine of lis pendens is the jurisdiction, power or control which courts acquire of property involved in a suit pending the continuance of the action and until final judgment therein” (emphasis added)). The Florida Supreme Court has also used the “until final judgment” phrase when describing the scope of a lis pendens. De Pass v. Chitty, 105 So. 148, 149 (Fla. 1925). We find these authorities both controlling and persuasive, and hold that a lis pendens bars liens only through final judgment, and does not affect the validity of liens after that date, even if they are before the actual sale of the property.

We do note, however, that this case appears to reveal a misstatement of the law in Form 1.996(a) of the Florida Rules of Civil Procedure. That rule provides an example foreclosure judgment, and includes a provision stating: “On filing the certificate of sale, defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice of lis pendens shall be foreclosed.” Fla. R. Civ. P. Form 1.996(a). This language suggests that all liens from the filing of the lis pendens until the certificate of sale is filed are discharged. Although we recognize the conflict between the form and our holding in this case, to hold otherwise would be to create conflict between this decision and both the legislative intent and prior case law. But the form has been, and could again, be modified “to bring it into conformity with current statutory provisions and requirements . . . and better conform to prevailing practices in the courts.” In re Amendments to the Florida Rules of Civil Procedure-Form 1.996 (Final Judgment of Foreclosure), 51 So. 3d 1140, 1140 (Fla. 2010). Such an amendment may be appropriate here.

Conclusion

The lis pendens statute serves to discharge liens that exist or arise prior to the final judgment of foreclosure unless the appropriate steps are taken to protect those interests. However, it does not affect liens that accrue after that date. The ten liens that were involved in the case before us were all recorded and based on conduct which occurred after the date of the first final judgment. The trial court therefore did not err in entering summary judgment in favor of the Town foreclosing those liens.

Affirmed.

GROSS and KLINGENSMITH, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

[1] The Town also recorded one lien before the final judgment was issued, but concedes that this lien was discharged.

[2] When no appeal is taken, an action terminates when the time for appeal expires. S. Title Research Co. v. King, 186 So. 2d 539, 544-45 (Fla. 4th DCA 1966). That time is 30 days after rendition of the order. Fla. R. App. P. 9.110(b). Here, no appeal from the final judgment in the original action was taken. There is also no question in this case that the liens at issue accrued after this 30-day period, making the precise distinction between the date of the final judgment and the date of the termination of the action irrelevant under the facts before us.

Stuart A. Gabriel

University of California, Los Angeles – Anderson School of Management

Matteo M. Iacoviello

Federal Reserve Board – Trade and Financial Studies

Chandler Lutz

Copenhagen Business School

June 25, 2016
Abstract: