Is Florida Foreclosure Void if Owner Not Named in Suit

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Is Florida Foreclosure Void if Owner Not Named in Suit

Tomas Lorentz
SEFL · Member since 2020 · 6 posts · 0 votes

I purchased a HOA foreclosed property through our counties judicial online auction in March of 2019. A certificate of title was subsequently issued to my name and I am the sole title holder on record. Said title is also recorded in the county's official records.

Yesterday the county held another foreclosure auction on this property initiated by the bank holding a lien on the property and the property was sold to an unknown party. I was not named in the lawsuit / final judgement as a defendant. I've looked up several cases which would appear similar to the situation I am in. The most relevant and recent one I could find is from the Court Of Appeals of this same county.

https://www.carltonfields.com/Librar...-v-Kokolis.pdf

If I understand what transpired in the case correctly, the summary of what happened is that:

1. The HOA auction winner, and subsequent owner / title holder on record was not notified of the bank foreclosure. (like meself)
2. Bank forecloses later on and property is auctioned off to new entity.
3. This new entity notices the title being in the name of the HOA auction winner and files suit to re-foreclose.
4. New entity argues that property should be "forever discharged", or wiped clean of all interests, because the HOA winner did not intervene in the bank foreclosure.
5. HOA auction winner argues the bank foreclosure is void since he was not named in suit.
6. Trial court finds bank foreclosure / final judgement "not void" for failure to name HOA winner and gives HOA winner a chance to purchase the property.
7. HOA winner presumably does not like the sum or "redemption" amount offered to him to purchase the property at re-foreclosure and appeals trial court's decision.
8. Appeals court reverses trial court summary judgement.

I suppose this means I have a pretty good chance of getting that foreclosure / final judgement voided / vacated. Is that correct?

My question is also what happens next? Would the bank need open another case to re-foreclose the property ensuring the HOA winner is named in the suit (me) given that the bank foreclosure can be voided/vacated by a trial court?
What's the best way of going about this. Do I just sit tight and wait for the new owner to try to re-foreclose on the property and then see what price is offered to me for purchase? or do I need to be pro-active here and move to vacate the final judgement / foreclosure by the bank that just happened?

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Ron S.
Paradise, CA · Member since 2015 · 1k+ posts · 871 votes
6y
Originally posted by @Tomas Lorentz:

Thanks Patrick.

But your claim that I need an attorney is incorrect. Florida allows such matters to be litigated pro se, 

Patrick's claim isn't incorrect. Heck, you can represent yourself pro se in a murder trial if you are dumb enough to do so, but should you... He and the rest of us say you need an attorney because, you obviously don't know how to rectify this (Not a slam...just a fact you readily admit to). You are asking for guidance and counsel from a bunch of people on a real estate blog on the internet. I sure wouldn't go to court and litigate because of something I read on here. That's why everyone said you need an attorney. What you do with that advice is on you.

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  • Ron S.
    Paradise, CA · Member since 2015 · 1k+ posts · 871 votes
    6y

    You would be better served asking your attorney this question, in my opinion.

    0Reply
  • Tomas Lorentz
    OP
    SEFL · Member since 2020 · 6 posts · 0 votes
    6y

    Thanks.

    But I will do this Manderolian style. 

    0Reply
  • Patrick M Nichols
    Attorney · Boston, MA · Member since 2018 · 109 posts · 63 votes
    6y

    You will need an attorney. There are serious questions of law and foreclosure priority. It's not clear from how you present this who the legal titleholder was in each step in the process. In most states, HOAs have super-priority and either a.) the junior liens were terminated in the auction process, or b.) you purchased at the HOA's auction and took title subject to all of the junior liens. Only a lawyer is going to be able to fish through all of these facts and give you definitive answers.

    Disclaimer: I am an attorney, but I am not your attorney nor am I licensed in your state. Seek professional legal advice before making any decisions that may adversely affect your rights.

    0Reply
  • Tomas Lorentz
    OP
    SEFL · Member since 2020 · 6 posts · 0 votes
    6y

    Thanks Patrick.

    But your claim that I need an attorney is incorrect. Florida allows such matters to be litigated pro se, 

    0Reply
  • Ron S.
    Paradise, CA · Member since 2015 · 1k+ posts · 871 votes
    6y
    Originally posted by @Tomas Lorentz:

    Thanks Patrick.

    But your claim that I need an attorney is incorrect. Florida allows such matters to be litigated pro se, 

    Patrick's claim isn't incorrect. Heck, you can represent yourself pro se in a murder trial if you are dumb enough to do so, but should you... He and the rest of us say you need an attorney because, you obviously don't know how to rectify this (Not a slam...just a fact you readily admit to). You are asking for guidance and counsel from a bunch of people on a real estate blog on the internet. I sure wouldn't go to court and litigate because of something I read on here. That's why everyone said you need an attorney. What you do with that advice is on you.

    3Reply
  • Tomas Lorentz
    OP
    SEFL · Member since 2020 · 6 posts · 0 votes
    6y

    Thanks Ron.

    The statement remains incorrect however. I suspect you are confusing the term "need" with "should". In addition, although appreciated, you are making several assumptions and interpretations in your post that are mistaken. 

    0Reply
  • Patrick M Nichols
    Attorney · Boston, MA · Member since 2018 · 109 posts · 63 votes
    6y

    Thank you for the lesson on pro se. I am well aware that every common law jurisdiction in the United States allows that. It's usually not a good idea if you don't know the law in your state or how to apply it to your facts, which you clearly do not (see OP) since you are soliciting legal advice here.

    2Reply
  • Ron S.
    Paradise, CA · Member since 2015 · 1k+ posts · 871 votes
    6y
    Originally posted by @Tomas Lorentz:

    Thanks Ron.

    The statement remains incorrect however. I suspect you are confusing the term "need" with "should". In addition, although appreciated, you are making several assumptions and interpretations in your post that are mistaken. 

    good luck to you...

    0Reply
  • Tomas Lorentz
    OP
    SEFL · Member since 2020 · 6 posts · 0 votes
    6y
    Originally posted by @Patrick M Nichols:

    Thank you for the lesson on pro se. 

     You are welcome. 

    0Reply
  • Wayne Brooks
    Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    6y

    @Tomas Lorentz 
    It depends.....but in either case you are done, any cash spent is gone. 
    1) I assume the bank foreclosure filing was filed Before you bought at the HOA auction. If this is the case, it's all over.
    2) If your CT was filed Before the bank filed the foreclosure, they would have a possible issue. You should have been named as a defendant. To correct this issue they would simply have to go back to court, amend the suit to include you as a defendant, go to sale again. But....in order for you to make this happen I believe you have to file a motion in the case within the 10 day Objection Period prescribed by law, following the sale....which is the reason for the mandated 10 day wait for issuance of the CT, otherwise the sale is final  

    In either case, you have no defense and anything you put into the property is gone. I can tell you from experience in attending many foreclosure trials....defendants going pro se are always a train wreck. But even an experienced attorney couldn’t do anything in this case, so it doesn’t really matter. 

    BTW, the next thing that will occur is the new owner will file for ejectment/eviction. You will lose no matter your defense as the buyer at the bank foreclosure IS the only title holder now, particularly if you didn’t properly file an Objection within the 10 day period. 

    2Reply
  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    6y

    I think it was Abraham Lincoln who weighed in on this topic.

    The case cited is distinguishable from the facts presented, factually and procedurally. Interesting that OP was aware of the lender foreclosure at least as early as the day after the sale took place... would be wise for attorney/client to research relevant concepts such as constructive notice. Not saying the order cannot or should not be vacated, but it’s foolish to rely upon one court’s opinion as gospel.

    Gimer Law516 Reviews
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    1Reply
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