       Third District Court of Appeal
                               State of Florida

                            Opinion filed May 4, 2016.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D15-1873
                          Lower Tribunal No. 12-1106
                             ________________


                         Wichi Management LLC,
                                    Appellant,

                                        vs.

                          Roger L. Masters, et al.,
                                    Appellees.


      An appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.

      Mario A. Lamar, P.A. and Mario A. Lamar; Arnaldo Velez, P.A. and
Arnaldo Velez, for appellant.

     Law Offices of La Ley con John H. Ruiz, P.A. and John H. Ruiz, Christine
M. Lugo, and Gustavo J. Losa, for appellee R & L Financial Services, Inc.


Before SUAREZ, C.J., and SHEPHERD and SALTER, JJ.

      SUAREZ, C.J.

      Appellant WICHI Management, LLC (“WICHI”) appeals a Final Judgment

which granted Appellee R&L Financial Service, Inc. (“R&L”) an equitable lien on
a promissory note and mortgage owned and held by WICHI, as well as the

summary judgment underlying the judgment granting the lien. We reverse finding

no legal or equitable basis for the lien.

      In general, this appeal arises out of a note and mortgage given by Roger and

Maria Masters to WICHI’s predecessor in interest which were recorded in the

public records of Miami-Dade County in 2006. The loan was modified on several

occasions and was declared in default in July 2011. At that time a Notice of Lis

Pendens was also recorded in the public records of Miami-Dade County. An

action to foreclose on the note and mortgage was filed in January 2012 and WICHI

was substituted as plaintiff in February 2013.    In May 2013 WICHI and the

Masters entered into a settlement under which a Deed in Lieu of Foreclosure was

issued.

      Meanwhile, in 2010 and 2011, through a series of promissory notes, Roger

Masters borrowed a total of $278,745.79 from R&L. Roger Masters failed to

repay that loan, and, in an entirely different proceeding from the WICHI

foreclosure, in December 2012 R&L obtained a final judgment solely against

Roger Masters based on his breach of those promissory notes. That judgment was

in the amount of $373,610.29.

      The R&L promissory notes did not provide R&L any security interest in any

real property, and specifically not in the real property at issue in the WICHI



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foreclosure. To the contrary, at least one of the R&L promissory notes indicated

that Roger Masters pledged amounts due under a trust of which he was a

beneficiary as collateral for the note. It is unclear from the record in this action

whether R&L made any efforts to collect on that collateral or to collect the

amounts owed by Roger Masters from any other source. Nevertheless, in March

2013 R&L moved to intervene in the WICHI foreclosure action, arguing that its

interests would be affected by the foreclosure because at least a portion of the

proceeds Roger Masters received from R&L had been used to bring the WICHI

mortgage current prior to the foreclosure. The motion to intervene was granted1

and R&L thereafter moved for summary judgment claiming that, as a result of the

payments on the WICHI mortgage, R&L had an equitable lien on WICHI’s note

and mortgage. Over WICHI’s objection, that motion for summary judgement was

granted. A later trial was held for determination of the amount of the equitable lien

and a final judgment setting the amount of the lien at $96,337.20 was entered.

WICHI appeals both the summary judgment and the final judgment. We agree

with WICHI that both were erroneous because R&L both failed to prove and

would be unable to prove, factually or legally, an entitlement to any equitable lien.




1 While we believe the granting of that motion was in error and contrary to
controlling law, Union Central Life Ins. Co. v. Carlisle, 593 So. 2d 505 (Fla.
1992), that Order is not before us in this appeal.

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      Florida law is clear that an equitable lien may be imposed on one of two

bases: (1) a written contract that indicates an intention to charge a particular

property with a debt or obligation; or (2) a declaration by a court out of general

considerations of a right or justice as applied to a particular circumstances of a

case. Golden v. Woodward, 15 So. 3d 664 (Fla. 1st DCA 2009). The parties agree

that there was no evidence of any written document demonstrating any intent to

subject any real property at issue to any security interest, so the first basis is

unavailable to R&L.

      With respect to the second means of obtaining an equitable lien, it has been

stated that “an equitable lien is a right granted by a court of equity, arising by

reason of the conduct of the parties affected, that would entitle one party as a

matter of equity to proceed against certain property. . . . In order to warrant the

imposition of an equitable lien under Florida law, the funds, payment of which is

to be secured by an equitable lien, must be directly traceable to the real property in

question, having unjustly enriched the debtor’s interest in that property. ” Fla. Jur.

2d, Liens § 4, and cases cited therein, emphasis added. In this case then, the trial

court was required to consider the conduct of R&L and of WICHI in determining

whether an equitable lien could be imposed and was required to consider whether

Roger Masters’ interest in the real property was enriched.




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      The evidence showed that neither WICHI nor its predecessor had any

knowledge of the source of any payment made by the Masters, nor did either have

any knowledge of the existence of R&L. Nothing presented demonstrated that

WICHI or its predecessor took any action with respect to R&L – i.e., neither made

any representations to R&L or communicated with R&L in any way. Thus, no

evidence supported any conduct on WICHI’s part which would have justified the

imposition of an equitable lien against it or its property interests.

      In addition, nothing presented showed that Roger Masters’ interest in the

real property was in any way enriched by his payment of the contractually required

amounts due under the note and mortgage. This is not a case such as Palm Beach

Sav. & Loan Assn’s F.S.A. v. Fishbein, 619 So. 2d 267, 270 (Fla. 1993) where

taxes and a first mortgage were paid off by the funds at issue. Instead, this case

involves the simple payment of amounts due under a note and mortgage.

      Moreover, there is simply no logic to R&L’s claim that WICHI was

somehow unjustly enriched by receipt of the payments made by Roger Masters out

of a portion of the funds he obtained from R&L. The Masters owed a debt to

WICHI’s predecessor and made payment on that debt. Such payment can in no

way be viewed as unjust or enriching WICHI’s predecessor.               Instead, those

payments signify nothing more than compliance with the contractual obligation the

Masters owed to WICHI’s predecessor. That R&L – unwittingly or not – provided



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the source of those payments is entirely irrelevant to WICHI’s entitlement to those

payments or its right to foreclose on its security interest in the real property to

obtain more complete satisfaction of the debt owed by the Masters.

      More to the point, R&L had numerous methods by which it could have

protected its own interest in obtaining repayment of the promissory notes it

accepted from Roger Masters and failed to do so. The loss incurred as a result of

that failure does not fall upon WICHI. Instead, it must remain solely with R&L,

which remains at liberty to seek satisfaction of its debt from the resources of Roger

Masters, upon whom it solely relied to make payment on the notes.

      Reverse and remanded with instructions to enter judgment in favor of

WICHI on any and all claims made by R&L.




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