Florida homeowner’s association not barred from foreclosing its lien as a result of a prior mortgage foreclosure

In Jallali v. Knightsbridge Vill. Homeowners Ass’n, Inc., No. 4D15-2036 (Fla. Dist. Ct. App. Jan. 4, 2017) a Florida Appellate court found that the filing of a lis pendens by the first mortgage holder did not bar a subsequent foreclosure by a homeowner’s association.

In Jallali, the first mortgagee filed a foreclosure and recorded a lis pendens. Thereafter, the association filed an action to foreclose its lien for unpaid association fees and subsequently obtained a judgment. The owner moved to vacate the association’s judgment which the court denied.

Relying upon U.S. Bank Nat. Ass’n v. Quadomain Condominum Ass’n, Inc., 103 So. 3d 977 (Fla. Dist. Ct. App. 2012) the owner argued on appeal that the foreclosure judgment should be vacated because the association was barred from foreclosing by not first complying with Section 48.23 of Florida Statutes. In addition, the owner argued that the court rendering the judgment lacked jurisdiction pursuant to Section 48.23 of the Florida Statutes as exclusive jurisdiction rested with the court hearing the mortgage foreclosure action.

That statute reads that a timely recorded lis pendens is a bar to the enforcement of all liens and interests that are unrecorded at the time the lis pendens was recorded. The association’s covenant was recorded and pre-dated the first mortgage so the court held it did not fall under Fla. Stat. Ann. § 48.23(1)(d). The court also found, however, that pursuant to Fla. Stat. Ann. §720.3085, the association’s lien was inferior to the first mortgage. The lien was effective from the date it was recorded, not the date the covenants were recorded. So the first mortgagee’s lis pendens did not preclude the association from proceeding against any party other than the first mortgagee.

Regarding the jurisdiction argument, the court hearing the mortgage foreclosure did not have exclusive jurisdiction because the interest of the association was not unrecorded. If the association’s interest was unrecorded then the foreclosure court would have had exclusive jurisdiction.

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