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determining that because the trial court lacked jurisdiction to adjudicate the non-party appellant's motion, "this Court has no jurisdiction to consider the merits on appeal from that order"
Summary of this case from Tilia Cordata, LLC v. Yellow Funding Corp.Opinion
No. 3D19-1285
06-10-2020
Sophia EDWARDS, et al., Appellants, v. CIT BANK, N.A., Appellee.
C. Marie Brevitt-Schoop, P.A., and Orville McKenzie, for appellants. Robertson, Anschutz & Schneid, P.L., and David Rosenberg, B.C.S. and Jarrett Cooper (Boca Raton), for appellee.
C. Marie Brevitt-Schoop, P.A., and Orville McKenzie, for appellants.
Robertson, Anschutz & Schneid, P.L., and David Rosenberg, B.C.S. and Jarrett Cooper (Boca Raton), for appellee.
Before FERNANDEZ, LOGUE, and HENDON, JJ.
HENDON, J. Sophia Edwards and the Estates of Herman and Phylis Edwards (the "Appellants"), seek to reverse the trial court's order denying their objection to the issuance of the certificate of sale, objection to the issuance of the certificate of title, motion to vacate the foreclosure sale, and motion to vacate the 2016 final judgment of foreclosure of real property in favor of CIT Bank (the "Bank"). We dismiss the appeal for lack of jurisdiction.
I. FACTS
In 2007, Herman and Phylis Edwards entered into a reverse mortgage. They failed to pay the insurance and taxes due to maintain that mortgage. In March 2016, the Bank filed its complaint in foreclosure, and in June 2016, final judgment of foreclosure was rendered. There was neither a motion for rehearing nor an appeal taken from the final judgment. When the Edwards subsequently filed for bankruptcy, the foreclosure proceedings were stayed. Mr. Edwards died in 2017. In February 2019, after the bankruptcy was dismissed, the Bank moved to reset the sale date to May 7, 2019. Mrs. Edwards died on February 27, 2019. On the day before the foreclosure sale was set to take place, the Appellants filed a motion to reset the sale date. The sale proceeded as scheduled on May 7, 2019, and the Bank was the successful bidder. The certificate of sale issued that same day.
The record on appeal shows that the certificate of title was issued to CIT Bank on June 3, 2019. The property was subsequently sold on June 28, 2019, to the Federal National Mortgage Association.
The Appellants filed an objection to the issuance of the certificate of sale and the certificate of title to the Bank and moved to vacate the sale and final judgment. The trial court denied the Appellants’ motion to vacate sale and final judgment of foreclosure, without prejudice, in order to allow Sophia, as beneficiary of her parents’ estate, to open the probate estate and to later resubmit the motion to vacate. The day after the trial court issued that order, the Appellants filed a renewed objection.
On June 19, 2019, the trial court heard arguments on the motions. During the hearing, the Bank stated that the final judgment of foreclosure should not be vacated, as that would prejudice the Bank. The Appellants argued that the trial court should give them more time in order to allow the probate court to transfer title to the property to Sophia pursuant to her parents’ will. The trial court expressed its inability to grant the relief Sophia sought, as it concluded that title had vested in the Bank as a result of the unopposed foreclosure judgment which had become final three years earlier, in 2016, after time for rehearing and appeal had expired. The trial court denied the Appellants’ motion.
II. DISCUSSION
The issue presented on appeal by the Appellants is whether the final judgment of foreclosure acted as an instrument of conveyance which transferred title to the creditor. However, a more fundamental principle herein is that the non-party Appellants did not move to intervene in the proceedings below. See Fla. R. Civ. P. 1.230. As a result, we lack the jurisdiction to hear this appeal. A non-party seeking to participate in a case must generally move to intervene in the proceedings. See Bondi v. Tucker, 93 So. 3d 1106, 1111 (Fla. 1st DCA 2012) (holding that "[e]ven a party able to intervene as a matter of right must obtain a court order allowing intervention"). As a general rule, it is too late to apply for intervention after a final decree has been entered. In this case, the judgment of foreclosure was final in 2016. See Ezem v. Fed. Nat'l Mortg., 153 So. 3d 341, 343-44 (Fla. 1st DCA 2014) (holding that as appellant was never made a party to the proceedings, he cannot properly seek relief from the summary final judgment on appeal); Wong v. von Wersebe, 365 So. 2d 429, 430 (Fla. 3d DCA 1978).
Florida Rule of Civil Procedure 1.230 provides: "Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion."
Florida law clearly establishes that "a non-party in the lower tribunal is a ‘stranger to the record’ and, therefore, lacks standing to appeal an order entered by the lower tribunal." Portfolio Invs. Corp. v. Deutsche Bank Nat'l Tr. Co., 81 So. 3d 534, 536 (Fla. 3d DCA 2012) (quoting Barnett v. Barnett, 705 So. 2d 63, 64 (Fla. 4th DCA 1997) (dismissing the appeal, finding that because the bank "was not a party in the dissolution action below, it had no standing to appeal the adverse order," and thus, the wife could not appeal the order)); see also Hood v. Union Planters Bank, 941 So. 2d 1175, 1176 (Fla. 1st DCA 2006) (holding "[a]ppellant ... has no standing to appeal this foreclosure because he was not one of the parties named below, and made no effort to intervene"); Stas v. Posada, 760 So. 2d 954, 955 (Fla. 3d DCA 1999) (dismissing the appeal because the "[a]ppellant ... was not a party below and made no effort to intervene in the action. Consequently, he too is precluded from seeking appellate review."); see also Lucky Nation, LLC v. Al-Maghazchi, 186 So. 3d 12, 14 (Fla. 4th DCA 2016) (holding purchaser of foreclosed property was a non-party in the mortgage foreclosure action, never moved to intervene, thus the title issue was not actually litigated in that case and the trial court trial court lacked subject matter jurisdiction to adjudicate her objection and motion to vacate the foreclosure).
The same principle applies in the present case. Because Appellants did not seek to intervene below, and were never made party to the pre- or post-judgment foreclosure proceedings, they cannot properly appeal from the order here on appeal. See City of Coral Gables v. Garcia, 43 Fla. L. Weekly D2303, ––– So.3d ––––, 2018 WL 4904915 (Fla. 3d DCA Oct. 10, 2018) (dismissing the City's appeal because, as a non-party, it lacked standing to appeal the trial court's order). We conclude that the trial court had no jurisdiction to adjudicate the non-party Appellants’ objection to the sale and issuance of the certificate of title and the motion to vacate the sale and final judgment of foreclosure. Consequently, this Court has no jurisdiction to consider the merits on appeal from that order. As we have no jurisdiction, we dismiss the appeal.
Appeal dismissed.