Buyers Beware! Florida’s District Courts of Appeal Confirm that Third Party Purchasers Have Little to No Right to Participate in Foreclosure Proceedings

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Buyers Beware! Florida’s District Courts of Appeal Confirm that Third Party Purchasers Have Little to No Right to Participate in Foreclosure Proceedings

Buyers Beware! Florida’s District Courts of Appeal Confirm that Third Party Purchasers Have Little to No Right to Participate in Foreclosure Proceedings

Lexology-

Third party purchaser lacks standing to participate in foreclosure proceeding, absent assertion of intention to redeem the property. After the Second District Court of Appeal issued a per curiam affirmance of the entry of final judgment of foreclosure in favor of the bank, Judge Sleet issued a specially concurring opinion in which he concluded that because the appellant was a third party purchaser of the property who was not obligated on the note and mortgage, it was “questionable” whether she had standing to challenge the bank’s foreclosure proceeding in the first place. Pealer v. Wilmington Trust, N.A., as Trustee for the MFRA Trust, 2D15-2822, 2017 WL 104075, at *1 (Fla. 2d DCA March 171, 2017).

In 2011, the appellant (“the Purchaser”) acquired the property at a homeowner’s association foreclosure sale with actual knowledge of the bank’s mortgage on the property, but did not assume the mortgage. Id. In 2013, the bank began its foreclosure proceeding, naming the mortgagors, who did not participate in the foreclosure, and the Purchaser, who participated fully at trial and disputed the admissibility of the bank’s business records and challenged its standing to foreclose. Id. The bank did not object to the Purchaser’s participation at trial, thereby waiving any argument that the Purchaser lacked standing to participate. Id.

However, in his specially concurring opinion, Judge Sleet concluded that, had the bank objected to the Purchaser’s right to participate at trial, that argument would have been meritorious in this case. Id. The concurrence explained that the Purchaser was an indispensable party to the foreclosure proceeding and was properly named as a defendant because she acquired the property before the bank filed a foreclosure complaint or recorded a lis pendens. Id. However, the concurrence explained that the Purchaser’s interest in the foreclosure proceeding was “not a legally cognizable interest” because the Purchaser took title to the property subject to the bank’s superior interest in the property. Id. at *2. Because the Purchaser had only a possessory interest in the property and was never obligated on the note and mortgage, the Purchaser could only participate in the foreclosure proceeding to exercise her statutory right of redemption and prevent the forced sale of the property. Id. In this case, though, the concurrence found that there was no evidence in the record that the Purchaser ever asserted her right to redeem the property, and as a result, the Purchaser’s interest in the foreclosure action was “speculative” and “insufficient to support [her] standing to challenge the bank’s standing or admission of evidence at trial.”

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