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Florida: Appellate Court Reviews the Lis Pendens Statute

Posted By Rachel Ramirez, Wednesday, February 22, 2017
Updated: Wednesday, June 7, 2017

February 22, 2017

by Robyn Katz
McCalla Raymer Leibert Pierce, LLC – USFN Member (Connecticut, Florida, Georgia, Illinois)

Background (First Decision)
Last summer, the Fourth District Court of Appeal issued a controversial decision centering on the application of Florida’s lis pendens statute (F.S. section 48.23) to liens placed on property between the time of a final judgment of foreclosure and the judicial sale. [Ober v. Town of Lauderdale by the Sea (Aug. 24, 2016)]. The court has since reversed course.

Rehearing (New Opinion Issued)
On a motion for rehearing, the court withdrew and replaced its August 2016 decision. In the new opinion published in January 2017, the court ruled that the recording of the lis pendens operates as a bar to the enforcement of all interests and liens, regardless of whether the unrecorded interest existed prior to or after the date of the final judgment, all the way up until the foreclosure sale of the property occurs. Accordingly, liens placed on a property between the final judgment of foreclosure and the judicial sale are indeed discharged by section 48.23(1)(d), unless the lienor timely intervenes in the action (within 30 days after the recording of the lis pendens). Ober v. Town of Lauderdale by the Sea, No. 4D14-4597 (Jan. 25, 2017).

The Fourth District Court of Appeal ultimately concluded that the practical problem in the case is the long lag time between the foreclosure judgment and the foreclosure sale and that the resolution of the competing interests is in the province of the legislature. As a consequence, the Florida legislature may choose to amend the lis pendens statute.

In the meantime, the judicial opinion rendered January 25, 2017 restores the lis pendens statute to its interpretation prior to the issuance of the August 24, 2016 decision. Be aware, however, that the Town of Lauderdale by the Sea might seek review from the Florida Supreme Court given that this may be considered a matter of public importance.

As future developments occur, look for further updates on this significant issue.

© Copyright 2017 USFN and McCalla Raymer Leibert Pierce, LLC. All rights reserved.
February e-Update

Note for consideration of the USFN Award of Excellence: This article is not a "Feature."


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