Portfolio Investments Corp. v. Deutsche Bank Nat'l Trust Co., 3D11–1677.

• Citation: 81 So.3d 534
• Decision Date: 08 February 2012
• Docket Number: No. 3D11–1677.,3D11–1677.
• Parties: PORTFOLIO INVESTMENTS CORP., Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Appellees.
• Court: Court of Appeal of Florida (US)

81 So.3d 534

PORTFOLIO INVESTMENTS CORP., Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Appellees.

No. 3D11–1677.

District Court of Appeal of Florida, Third District.

Feb. 8, 2012.

[81 So.3d 535]

Rasco Klock Reininger Perez Esquenazi Vigil & Nieto, and Alfonso J. Perez, Jr., Coral Gables; Roberto E. Moran, Miami, for appellant.

Butler & Hosch, P.A., and Dennis W. Moore, Tampa, Thomasina F. Moore, and Thomas Wade Young, Orlando, for appellee Deutsche Bank.

Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.

ROTHENBERG, J.

Portfolio Investments Corp. (“Portfolio”) appeals from a Final Consent Judgment for Foreclosure entered in favor of Deutsche Bank National Trust Company (“Deutsche Bank”) and against Annette Mendez (“Mendez”). We affirm all portions of the final judgment except for Paragraph 10, and remand for the limited purpose of addressing the priority of liens.

Deutsche Bank filed a complaint seeking to foreclose a mortgage executed by Mendez and to re-establish the lost note and mortgage, attaching a copy of the mortgage and an assignment of mortgage from the original lender to Deutsche Bank. In addition to Mendez, Deutsche Bank named Ten Aragon Condominium Association, Inc. (“Association”) as a defendant, alleging that the Association held a lis pendens and claim of lien on the mortgaged property that is subordinate and inferior to Deutsche Bank's interest.

The Association filed an answer to the complaint denying the allegation that its claim of lien was subordinate and inferior. Mendez, however, did not file an answer, and a default was entered against her. Thereafter, Deutsche Bank filed a motion for summary judgment.

More than two years after the foreclosure action was filed, the Association sold and assigned its claim of lien to Portfolio Investments Corp. (“Portfolio”). Within days of the assignment, Portfolio filed a Notice of Lis Pendens and a “Crossclaim to Foreclose Condominium Lien” against Mendez seeking an accounting and a monetary judgment. After filing its crossclaim, Portfolio began to actively participate in the litigation by noticing Mendez for a deposition, propounding discovery on Deutsche Bank, re-noticing the parties that Mendez's opposition to the deposition would be addressed at a status conference hearing, attending hearings, and filing other motions. In fact, the trial court ruled on several matters directly affecting Portfolio, including ordering Mendez to appear

[81 So.3d 536]

for deposition and warning her that if she failed to appear, a default would be entered against her as to the crossclaim. Although Portfolio did not move to intervene, see Fla. R. Civ. P. 1.230, or to substitute itself for the Association, see Fla. R. Civ. P. 1.260(c), Portfolio actively participated in the litigation without objection from either Mendez or Deutsche Bank.

Ultimately, the trial court granted Deutsche Bank's motion for summary judgment after Mendez's counsel informed the trial court that Mendez had no objection. Deutsche Bank submitted the Final Consent Judgment for Foreclosure, which was executed by Deutsche Bank and Mendez, along with the original note, mortgage, and assignment of mortgage. Paragraph 10 of the consent judgment provides...