Condominium Reprimanded in Foreclosure

Written By: Emil FleysherApril 1, 2016

A North Miami condominium association got sharp scorn from the Third District Court of Appeal. They may penalize it for a lawsuit the panel called a "waste of time."
Furthermore, Biscayne Point Condominium Association must show why it shouldn't receive sanctions in its litigation with HSBC Bank USA N.A. over a condo unit the bank state the group illegally controls.

In fact, their quarrel centers on whether Biscayne Point gave suitable notice to the correct lienholder. That is if they did this prior to foreclosing on homeowner Michael Leavitt for unpaid condo assessments. For its part, the appeals court wants to distinguish if attorneys for both sides attempted to resolve the problem; before extending their fight. Moreover, in a mandate issued Feb. 24, it provided the bank with 30 days to file a memorandum; demonstrating whether it communicated with the association to reach a concession of error before filing the appeal.

Biscayne Point won a default judgment silencing title in January 2012 after HSBC didn't secure the foreclosure suit. It secured a certificate of title nearly a month later after coming as the winning bidder in a foreclosure sale. Public records show the association paid $10,400 for the one-bedroom unit at 12105 NE 11th Place. Biscayne Point's suit named HSBC Bank USA N.A., but the bank stated a related company, HSBC Trustee, held the mortgage. Years of litigation trailed.

Naming the Wrong Defendant?

At trial, the bank insisted the suit named the wrong defendant. And they argued the association improperly served court papers on a bank branch employee. The bank insisted HSBC Trustee, not HSBC Bank, held the purchase-money mortgage on Leavitt's $107,920 promissory note, which was sold twice. And, it was eventually transferred to the company in 2009. Nearly a year after Biscayne Point got the title, the bank filed for foreclosure in 2013; naming Leavitt and the condo association as defendants. HSBC sought to vacate orders in the association's favor. They wanted to do this by challenging Biscayne Point's service and claiming the group misidentified the debtor.

Biscayne Point responded with a motion to dismiss, arguing the judgment quieting title extinguished the bank's interest in the debt. The association acknowledged in its pleadings that its lien for unpaid assessments was junior to HSBC's. However, they argued the certificate of title obtained through foreclosure was superior to the bank's unsatisfied mortgage. Its lawyers also condemned the bank's misidentification argument.

"HSBC Bank is HSBC Bank," attorney Maria Garcia Larrabure, who teamed with Gustavo Gutierrez of Torres & Vadillo in Miami, contended at a 2014 hearing before Miami-Dade Circuit Judge Jorge Cueto. He denied the bank's motion to vacate the judgment quieting title, finding the association appropriately served HSBC. HSBC Bank contoured with representation from Elliot Kula and Aaron Daniel of Kula & Associates in Miami.

The End Result

But Biscayne Point seemed to give up on the litigation, failing to appear through counsel or file an answer. The condominium association also failed to answer to appellate court orders to file a brief and a memorandum of points and authorities to back its position. "The end result of the frivolous legal proceedings below and here is a waste of time and judicial resources," Third DCA Judge Vance Salter wrote in a unanimous conclusion with Judges Ivan Fernandez and Thomas Logue agreeing. On the court's own motion, the panel ordered Biscayne Point to show why the association shouldn't pay for the bank's attorney fees.

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