U.S. Bank Nat. Ass'n v. Tadmore

• Decision Date: 02 December 2009
• Docket Number: No. 3D09-1389.,3D09-1389.
• Citation: U.S. Bank Nat. Ass'n v. Tadmore, 23 So.3d 822 (Fla. App. 2009)
• Parties: U.S. BANK NATIONAL ASSOCIATION as Trustee for the Benefit of Harborview 2005-10 Trust Fund, Appellant, v. Danny TADMORE, deceased, etc. et al., Appellees.
• Court: Florida District Court of Appeals

23 So.3d 822

U.S. BANK NATIONAL ASSOCIATION as Trustee for the Benefit of Harborview 2005-10 Trust Fund, Appellant, v.Danny TADMORE, deceased, etc. et al., Appellees.

No. 3D09-1389.

District Court of Appeal of Florida, Third District.

December 2, 2009.

Adorno & Yoss, John J. Shahady, Fort Lauderdale, Jack R. Reiter and Jordan S. Kosches, Miami, for appellant.

Siegfired, Rivera, Lerner De La Torre & Sobel, Guillermo M. Mancebo and Vincent B. Flor; Gonzalo R. Dorta, Miami, for appellee.

Before WELLS, SHEPHERD, and CORTIÑAS, JJ.

WELLS, J.

In this mortgage foreclosure action, U.S. Bank National Association("the Bank") appeals from an order obligating it to "diligently proceed with the [instant] pending foreclosure action ... within thirty (30) days" or pay monthly maintenance fees on the condominium unit in foreclosure.We treat the instant order as an order granting an injunction which we reverse because there is no basis for imposing such fees as a sanction or otherwise in this case.See, e.g., Hughes v. First Fed. Sav. & Loan Assoc.,621 So.2d 557(Fla. 4th DCA1993)(finding that an order requiring a party to deposit mortgage payments into the registry of the court as they accrued, pending resolution of the foreclosure claim, was reviewable as an injunction under Rule 9.130(a)(3)(B)).

This action commenced in February 2008 with the Bank seeking to foreclose a first mortgage on a condominium unit owned by Danny Tadmore.The Condominium Association for the property where this unit is located was joined as a defendant in this action.The matter thereafter was delayed first, because the original summons for Mr. Tadmore and his unknown spouse was lost, and then, because Tadmore's estate had to be added as a party after the Bank learned that he had expired.

On February 20, 2009, approximately a year after this action was filed, the Condominium Association filed a motion to compel the Bank to either proceed with its foreclosure action or to commence paying the $939.56 monthly maintenance fee for the decedent's condominium unit to the Association.At the time this motion was filed, no notice that the case was ready to be set for trial had been filed and no Rule 1.420(e)motion to dismiss for lack of prosecution had been made.SeeFla. R. Civ. P. 1.440(b)(providing that after an action is at issue, "any party" may file and serve a "notice that the action is at issue and ready to be set for trial");see alsoFla. R. Civ. P. 1.420(e)(providing generally that where no activity appears on the face of the record for a period of 10 months, notice is given, and no record activity occurs within the next 60 days, an action may be dismissed by the court on its own motion or on the motion of an interested person).

Rather than attempting to move this action to completion by having it set for trial, the Association claimed that it was being unreasonably prejudiced by the Bank's "undue delay in pursuing their [sic] foreclosure" action, making it fair and equitable for the court to order the Bank to pay monthly assessment payments to the Association.The trial court agreed.We reverse.

As the Association concedes, the Bank is not contractually obligated to pay condominium maintenance fees on this unit.Nor, as section 718.116(1)(b), Florida Statutes(2009) confirms, is it legally obligated to do so before it obtains title:

(b) The liability of a first mortgagee ... who acquire[s] title to a unit by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that become due prior to the mortgagee's acquisition of title is limited to the lesser of:

1.The unit's unpaid common expenses and regularly periodic assessments which accrued or came due during the 6 months immediately preceding the acquisition of title ... or

2.One percent of the original mortgage debt....

SeeBay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass'n,895 So.2d 1197, 1197(Fla. 3d DCA2005)(noting that section...