Beltway Capital, LLC v. The Greens COA, Inc.,
39 Fla. L. Weekly D2540
(Fla. 5th DCA 2014)
Beltway filed a mortgage foreclosure suit on a condo unit, naming the unit owner and the condo association. Beltway purchased the unit at the foreclosure sale.
The condo association filed a motion to determine the amounts it was due for delinquent dues, especially seeking a determination of whether Beltway was entitled to safe harbor under Sec. 718.116(1)(b), F.S., as a first mortgagee or a subsequent holder of the first mortgage. The statute limits the liability of “a first mortgagee or its successor or assignees” who acquire title to a condo unit by foreclosure for unpaid association assessments due before acquisition of title. Beltway was not a direct assignee of the original lender. The trial court held that Beltway was not entitled to the safe harbor provision because it was not “the original lender, the lender’s successor, or the lender’s assignee.”
On appeal the Fifth District Court reversed the trial court’s judgment as to the unpaid association dues, holding that Beltway was entitled to the safe harbor as a first mortgagee. The court held that the term “first mortgagee” does not equate with the term “original lender” and a “first mortgagee” is one who holds the first mortgage, whether that be the original lender or any subsequent assignee because the term “first” in the statute refers only to the priority of the lien.