Nationstar Mortg. LLC v. Desouza

• Citation: 343 So.3d 1227
• Decision Date: 06 July 2022
• Docket Number: 1D21-2288
• Parties: NATIONSTAR MORTGAGE LLC, Appellant, v. Lucimeire DESOUZA a/k/a Lucimere E. DeSouza, et al., Appellees.
• Court: Court of Appeal of Florida (US)

343 So.3d 1227

NATIONSTAR MORTGAGE LLC, Appellant,
v.
Lucimeire DESOUZA a/k/a Lucimere E. DeSouza, et al., Appellees.

No. 1D21-2288

District Court of Appeal of Florida, First District.

July 6, 2022
Rehearing Denied August 11, 2022

Hallie S. Evans, Troutman Pepper Hamilton Sanders LLP, Atlanta, GA, for Appellant.

Eric S. Kolar, Kolar Law, P.A., Jacksonville, for Appellee Luciano Fernandes.

Kelsey, J.

A routine residential property foreclosure filed in 2008 comes to us on appeal from an order awarding attorneys’ fees against Appellant Nationstar, setting the amount, and containing words of finality allowing execution on the judgment. Nationstar argues only that the individual who obtained the fee judgment was statutorily barred from participating in the foreclosure case, and therefore the fee judgment is invalid. This presents an intriguing appellate practice question about what issues we have jurisdiction to address on appeal from a fee judgment. We hold that, on the facts presented, we have jurisdiction to address whether or not the litigant who obtained the fee judgment against Nationstar was a proper party to the litigation, because this issue is dispositive of entitlement to the award, which is foundational to the judgment. The record reflects that Nationstar timely asserted and fully preserved its objections to this individual's participation. On the merits, we hold that the litigant was not a proper party, and we reverse the order on appeal.

FACTS.

The order on appeal granted attorneys’ fees to a Mr. Fernandes, who was not a mortgagor, but purported to hold a quitclaim deed to the foreclosed property. The quitclaim deed was dated June 25, 2007, about eleven months before the foreclosure complaint was filed. The quitclaim deed was not recorded, however, until May 13, 2009, about ten months after the foreclosure complaint and notice of lis pendens were filed. Evidence established that the property was vacant when the lawsuit and lis pendens were filed. It is undisputed that the quitclaim deed was recorded long after the twenty-day deadline established in section 48.23(1)(b) of the Florida Statutes (2008) (providing that the filing of a notice of lis pendens bars all interests and liens unrecorded when the lis pendens is filed unless the holder intervenes within twenty days after the lis pendens is filed).

It is likewise undisputed that Mr. Fernandes did not intervene within twenty days after the lis pendens was filed. He first appeared in the foreclosure action sua sponte by filing an answer to the complaint in May of 2009, when he first recorded the quitclaim deed. The predecessor plaintiff, as holder of the mortgage, obtained a final judgment of foreclosure in 2013, but Mr. Fernandes sought and obtained an order vacating that judgment and canceling the sale, on grounds that he had not been served properly with documents leading up to the judgment. The case languished for a year, until after Nationstar became the holder of the mortgage. Nationstar initially included Mr. Fernandes in an amended complaint filed in 2015, but then dropped him because he was not a proper party.

343 So.3d 1230

Without being granted intervention, and without any participation by the mortgagor, Mr. Fernandes sought discovery from Nationstar, mirroring discovery he had sought from the original plaintiff. The requested discovery far exceeded the typical documents necessary to establish Nationstar's standing as holder of the note (the note, mortgage, and indorsement), which both the original plaintiff and Nationstar did provide to Mr. Fernandes. Mr. Fernandes sought numerous additional categories of documents, such as attorney fee agreements; the addresses, phone numbers, and dates of employment of individuals who had signed documents related to the mortgage and its transfers; and documents that Mr. Fernandes himself had signed. Nevertheless, he claimed to be dissatisfied with Nationstar's responses throughout several rounds of motions.

Nationstar consistently objected to these discovery requests on their merits and on the grounds that Mr. Fernandes lacked standing and was statutorily barred from participation. Nationstar consistently argued that Mr. Fernandes was not a proper intervenor because he had failed to meet the statutory deadline after the filing of the notice of lis pendens.

Mr. Fernandes did not move to intervene until 2016, relying on an alleged earlier "grant" of intervention. Apparently, a predecessor judge had written a case note in the file indicating intervention had been granted. The note did not reference or analyze the statutory deadline problem or any other reasoning. The record does not include any evidence of a hearing or rendition of a written order on intervention.

This case note prompted the successor judge to send the case back to the predecessor judge for clarification on whether and why Mr. Fernandes had been allowed to intervene. The intervention issue languished for nearly two years, until the successor judge entered an order granting intervention in September of 2018. The order contained no recitation of facts and no analysis.

After finally obtaining this grant of intervenor status, Mr. Fernandes continued to press for additional discovery. Nationstar moved for reconsideration of the order granting intervention, asserting that Mr. Fernandes lacked standing and was barred from participating in the litigation. Nationstar also asserted that the requested...