      IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA


                                     July 15, 2016


BANK OF AMERICA, N.A.,                   )
                                         )
                Appellant,               )
                                         )
v.                                       )            Case No. 2D14-858
                                         )                     2D14-4436
KIPPS COLONY II CONDOMINIUM              )
ASSOCIATION, INC., a Florida corporation )            CONSOLIDATED
not for profit; CHARLES C. KNIGHTON;     )
and MEGAN A. KNIGHTON,                   )
                                         )
                Appellees.               )
___________________________________)



BY ORDER OF THE COURT:

              On its own motion, this court's opinion dated December 9, 2015, is

withdrawn, and the attached opinion is issued in its place. A footnote has been added,

and changes have been made to section II.B. No further motions for rehearing will be

entertained in this appeal.




I HEREBY CERTIFY THE FOREGOING IS A

TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL, CLERK
                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT




BANK OF AMERICA, N.A.,                   )
                                         )
                Appellant,               )
                                         )
v.                                       )              Case No. 2D14-858
                                         )                       2D14-4436
KIPPS COLONY II CONDOMINIUM              )
ASSOCIATION, INC., a Florida corporation )              CONSOLIDATED
not for profit; CHARLES C. KNIGHTON;     )
and MEGAN A KNIGHTON,                    )
                                         )
                Appellees.               )
___________________________________)

Opinion filed July 15, 2016.

Appeals pursuant to Fla. R. App. 9.130
from the Circuit Court for Pinellas County;
Pamela A.M. Campbell, Judge.

Adam M. Topel, J. Randolph Liebler, and
Tricia J. Duthiers of Liebler, Gonzalez &
Portuondo, Miami, for Appellant.

Shawn G. Brown of Redding & Brown,
PLLC, Tampa; and Lang & Raffa P.A., St.
Petersburg, for Appellee Kipps Colony II
Condominium Association, Inc.

No appearance for remaining Appellees.

BLACK, Judge.

              In these consolidated appeals, Bank of America, N.A., challenges the trial

court's rulings on two motions for relief from judgment. Bank of America raises multiple

claims of error in the appeal from the denial of its Florida Rule of Civil Procedure
1.540(b) motion. Because we find merit in one of those arguments, requiring reversal of

the order denying relief from judgment, we do not address the remaining claims. As to

Bank of America's appeal from the denial of the rule 1.540(a) motion, we affirm without

comment.

I.     Background

              Kipps Colony II Condominium Association filed a lien foreclosure action

against Charles and Megan Knighton for failure to pay their condominium assessments.

The Association's complaint named Bank of America as a defendant. The complaint

alleged that Megan Knighton "may claim an interest in the Unit by virtue of that certain

Mortgage on the Unit, recorded in O.R. Book 13524, Page 595, and that certain

Mortgage on the Unit, recorded in O.R. Book 14385, Page 1957." The complaint also

alleged that Bank of America "may claim an interest in the Unit by virtue of its mortgage

recorded in O.R. Book 14385, Page 1957, which interest, if any, is inferior and

subordinate to" the Association's lien. The complaint did not otherwise identify the

mortgages on the condominium or expressly state that Bank of America held both the

first and second mortgages on the property, only the second of which was inferior to the

Association's lien. It did, however, allege that the Association was not required to give

Charles Knighton notice of its intention to foreclose the lien because an action to

foreclose a mortgage on the condominium was pending before the trial court. The

Association requested that "the Defendants and all other persons who have any lien

junior to the lien of [the Association] be barred and forever foreclosed of all right, title,

interest, equity or redemption or lien in or to or against the [condominium unit]."




                                              -2-
              A default was entered against Bank of America. The Association then

moved for summary judgment, and a final summary judgment of foreclosure was

rendered December 19, 2011. Paragraph five of the uniform final judgment states:

              The lien of [the Association] is superior in dignity to any right,
              title, interest or claim of the defendants through or under the
              defendants and all persons, corporations, or other entities
              claiming by, through or under the defendants or any of them
              and the property will be sold free and clear of all claims of
              the defendant with the exception of any assessments that
              are superior pursuant to sections 718.116 or 20.3085,
              Florida Statutes.

(Emphasis added.)

              The property was sold on January 28, 2013, more than a year after entry

of the final judgment. The parties have not provided an explanation for the delay from

March 2012 to January 2013. Inland Assets, LLC, purchased the property at the

foreclosure sale. 1 A certificate of title was issued in February 2013, and Inland Assets

immediately filed a quiet title action against Bank of America and the Knightons. Bank

of America again failed to appear, 2 and Inland Assets obtained a quiet title judgment on

March 18, 2013. That judgment provides, in pertinent part:

              [Inland Assets] is the rightful and lawful owner of the
              Property, free and clear of any liens or encumbrances by
              [Bank of America] (or any persons claiming by, through, or
              under [Bank of America]) and to the exclusion of any claims,
              liens, or mortgages of [Bank of America], including but not
              limited to the mortgages recorded in the Official Records of
              Pinellas County, Florida at OR Book 13524, Page 595.



              1Inland
                   Assets is not a proper party to this appeal; it was not a party in the
proceedings below. See Fla. R. App. P. 9.020(g)(2) (defining "appellee").
              2Bank   of America filed motions in both the foreclosure lawsuit and the
quiet title action seeking to quash service of process and arguing that the judgments
were void for lack of service on the correct Bank of America entity.


                                            -3-
(Emphasis added.)

              Notably, although the complaint to quiet title does not specify the

mortgages that may be at issue or give the O.R. Book and page number of any

mortgage, the judgment specifically includes the O.R. book and page number of the first

mortgage held by Bank of America. The appendices provided to this court do not

include a copy of the motion for final judgment in the quiet title action. Thus, it appears

that Inland Assets knew it had received a windfall via the language of the final judgment

of foreclosure.

              On the same date that the court issued the quiet title judgment, Bank of

America filed a motion to quash service of process and vacate the clerk's default. Later,

Bank of America filed a rule 1.540(b) motion to set aside the quiet title judgment alleging

that the quiet title judgment was void for lack of service. Both motions were denied

without prejudice.

              On August 21, 2013, Bank of America filed a motion to quash service of

process and to vacate default and set aside the summary final judgment of foreclosure

in the foreclosure action. Citing rule 1.540(b)(4), the motion alleged both that the final

judgment is void for lack of service and that it is void and erroneous as a matter of law

insofar as paragraph five purported to foreclose the first mortgage.

              The trial court held a hearing on the motion and orally denied it, finding no

issue with service of process. When asked about the ruling as to the paragraph five

issue, the court stated the motion was denied on the same grounds. The trial court's

written order is boilerplate and provides no findings or conclusions. Bank of America

appealed that order, commencing case number 2D14-858.




                                            -4-
              During the pendency of the appeal and before it was perfected, the

Association, as an appellee in the case, asked this court to relinquish jurisdiction to

allow the trial court to rule on the Association's motion to amend the final judgment

pursuant to rule 1.540(a), which alleged that the foreclosure judgment contained a

clerical error. This court relinquished jurisdiction. Bank of America joined in the

Association's rule 1.540(a) motion. At the hearing on that motion, the Association

argued that the final judgment failed to delineate which of Bank of America's mortgages

the Association's lien was foreclosing and that this was a clerical error or misnomer,

correctable via a rule 1.540(a) motion. The trial court denied the motion, finding that the

complaint "only alleged the one Bank of America O.R. book and page of the mortgage,"

and "that there was no additional mortgage noted in the initial complaint." Therefore,

the court ruled that it would be a substantive issue to amend the final judgment and not

a clerical change. The court also found that "to the extent [the Association] complains

that the Final Judgment improperly purports to eliminate a first mortgage of Bank of

America, the [c]ourt is persuaded that said issue has already been litigated adverse to

Bank of America in [the quiet title action]." However, the only issue before the court in

the quiet title action was whether service on Bank of America was proper. Bank of

America appealed the court's denial of the rule 1.540(a) motion, commencing case

number 2D14-4436. 3

II.    Discussion




              3The Association also appealed the court's denial of the rule 1.540(a)
motion, which is being resolved separately. Kipps Colony II Condo. Ass'n v. Knighton,
No. 2D14-4110.


                                            -5-
              An order denying relief under rule 1.540(b) is generally reviewed for an

abuse of discretion. Leach v. Salehpour, 19 So. 3d 342, 344 (Fla. 2d DCA 2009). But

"[a] decision whether or not to vacate a void judgment is not within the ambit of a trial

court's discretion; if a judgment previously entered is void, the trial court must vacate the

judgment." Wiggins v. Tigrent, Inc., 147 So. 3d 76, 81 (Fla. 2d DCA 2014). Here, the

trial court abused its discretion in denying Bank of America's motion as to the judgment

foreclosing its first mortgage on the "same grounds" that it denied the motion based on

lack of service of process. Reversal is warranted on that basis alone. However,

because the court later denied the rule 1.540(a) motion based, in part, on its finding that

the issue of whether the judgment was void had been resolved against Bank of America

in the quiet title action, we address the merits of Bank of America's claim that the

foreclosure judgment is void.

       A.     Priority of interests

                      The priority of interests in real estate under Florida
              law is generally determined by the operation of three
              statutes. Section 28.222(2), Florida Statutes (2004),
              requires the clerk of the circuit court to record instruments in
              the official records and to "keep a register in which he or she
              shall enter at the time of filing the filing number of each
              instrument filed for record, the date and hour of filing, the
              kind of instrument, and the names of the parties to the
              instrument." Section 695.11, Florida Statutes (2004),
              provides that "[t]he sequence of [official register numbers
              required under section 28.222] shall determine the priority of
              recordation" so that "[a]n instrument bearing the lower
              number in the then-current series of numbers shall have
              priority over any instrument bearing a higher number in the
              same series." The legal significance of priority of recordation
              comes into play in the context of the rule established in
              section 695.01(1), Florida Statutes (2004), which provides as
              follows: "No conveyance, transfer, or mortgage of real
              property, or of any interest therein . . . shall be good and
              effectual in law or equity against creditors or subsequent



                                            -6-
               purchasers for a valuable consideration and without notice,
               unless the same be recorded according to law."

City of Palm Bay v. Wells Fargo Bank, N.A., 114 So. 3d 924, 927 (Fla. 2013). Thus,

"Florida is . . . a 'notice' jurisdiction, and notice controls the issue of priority." Argent

Mortg. Co., LLC v. Wachovia Bank N.A., 52 So. 3d 796, 799 (Fla. 5th DCA 2010). And

under a notice recording statute, "the subsequent mortgagee cannot be without

constructive notice if the prior mortgage has been recorded as of the time of execution

of the subsequent mortgage." Id.

               "The [l]egislature has, however, provided separately for the priority of

certain liens over the priority established under chapter 695." City of Palm Bay, 114 So.

3d at 928. For example, section 718.116(5)(a), Florida Statutes (2011), provides:

               The association has a lien on each condominium parcel to
               secure the payment of assessments. Except as otherwise
               provided in subsection (1) and as set forth below, the lien is
               effective from and shall relate back to the recording of the
               original declaration of condominium, or, in the case of lien on
               a parcel located in a phase condominium, the last to occur of
               the recording of the original declaration or amendment
               thereto creating the parcel. However, as to first mortgages
               of record, the [condominium association's] lien is effective
               from and after recording of a claim of lien in the public
               records of the county in which the condominium parcel is
               located.

(Emphasis added.)

               Here, Bank of America's first mortgage was recorded at O.R. Book 13524,

Page 595, on April 23, 2004. The Association's claim of lien was recorded in O.R. Book

17154, Page 711, on February 8, 2011. The Association's lien was inferior to the first

mortgage held by Bank of America.

       B.      Foreclosure




                                              -7-
                A foreclosure extinguishes the liens of any junior mortgagees, Abdoney v.

York, 903 So. 2d 981, 983 (Fla. 2d DCA 2005), but it "does not terminate interests in the

foreclosed real estate that are senior to the mortgage being foreclosed," U.S. Bank Nat'l

Ass'n v. Bevans, 138 So. 3d 1185, 1187 (Fla. 3d DCA 2014) (quoting Garcia v. Stewart,

906 So. 2d 1117, 1120 (Fla. 4th DCA 2005)). "A prior mortgagee may elect for himself

the time and manner of enforcing his security. He cannot be compelled to be a party to

a suit by a junior encumbrancer foreclosing his lien." Citimortgage, Inc. v. Henry, 24 So.

3d 641, 643 (Fla. 2d DCA 2009) (quoting Cone Bros. Constr. Co. v. Moore, 193 So.

288, 290 (Fla. 1940)); accord Futrell Custom Pools, Inc. v. Sunshine Custom Builders,

Inc., 112 So. 3d 653, 653 (Fla. 5th DCA 2013) (concluding that Cone Brothers is still

good law and affirming the trial court's orders vacating in part the final judgment of

foreclosure).

                It is on that basis that Bank of America argued that the Association's

action could not foreclose Bank of America's first mortgage and that the final judgment

purporting to do so is void.

                A void judgment is so defective that it is deemed never to
                have had legal force and effect. In contrast, a voidable
                judgment is a judgment that has been entered based upon
                some error in procedure that allows a party to have the
                judgment vacated, but the judgment has legal force and
                effect unless and until it is vacated.

Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n, 968 So. 2d 658, 665 (Fla. 2d DCA 2007)

(emphasis added).

                Because Bank of America's first mortgage is superior to the Association's

lien as a result of prior recordation of the mortgage, the final judgment of foreclosure is

"ineffectual" as to Bank of America's first mortgage insofar as it states that the



                                             -8-
Association's lien "is superior in dignity to any right, title, interest or claim" of Bank of

America and that "the property will be sold free and clear of all claims of the

defendants." See Citimortgage, 24 So. 3d at 643. Because paragraph five of the

judgment purports to foreclose Bank of America's first mortgage by stating that the

Association's lien is superior to all rights of the defendants, including Bank of America's

rights as the first mortgage holder, and that the property will be sold free and clear of all

claims of the defendants, the judgment is void. 4 The court lacked jurisdiction to

foreclose Bank of America's first mortgage; the final judgment is legally ineffective and a

nullity, creating no binding obligation. See generally Sterling Factors, 968 So. 2d at 665

(stating that "[a] void judgment is so defective that it is deemed never to have had legal

force and effect" and that a trial court's lack of jurisdiction, subject matter or personal,

renders a judgment void).

               We recognize that our reversal of the order denying the motion for relief

from judgment will directly impact Inland Asset's interest in the property. In that regard,

we note that Bank of America, as a superior lien holder, was not required to litigate its

interest in the Association's foreclosure action. See Wells Fargo Bank, N.A. v.

Rutledge, 148 So. 3d 533, 534 (Fla. 2d DCA 2014); Bevans, 138 So. 3d at 1187 ("The



               4There is some argument regarding whether it is only paragraph 5 that is
void; however, because paragraph 5 cannot be severed from the judgment such that
the judgment is effectual, it is the entire judgment that is void. Cf. Gilman Paper Co. v.
Newman, 398 So. 2d 887, 888 (Fla. 1st DCA 1981) ("No error is assigned to this part of
the judgment and it being severable, that portion is affirmed."); State Rd. Dep't v.
Hartsfield, 216 So. 2d 61, 65 (Fla. 1st DCA 1968) ("The law is equally well settled that
where a judgment in favor of a party consists of two or more separate, distinct, and
unrelated parts, the disposition of any one of which will not affect the decision as to any
other, the successful party may appeal from one or more of the severable portions of
the judgment even though he accepts the benefits of the other portions thereof.").


                                              -9-
Association . . . could not name a superior lienholder like the Bank as a defendant in the

Association's suit to foreclose on its junior lien."). In this instance, because the

Association was already a party to Bank of America's foreclosure action—and therefore

did not need to otherwise intervene in the action—the Association should have recorded

its statutory claim of lien and filed a cross-claim. 5

               Moreover, the quiet title judgment did not resolve this issue. Rule

1.540(b)(5) provides that the court may relieve a party from a final judgment where "a

prior judgment or decree upon which [the challenged judgment] is based has been

reversed or otherwise vacated." The rule also "does not limit the power of a court to

entertain an independent action to relieve a party from a judgment, decree, order, or

proceeding or to set aside a judgment or decree for fraud upon the court."

III.   Conclusion

               The trial court abused its discretion in denying Bank of America's motion

for relief from judgment. The final judgment of foreclosure entered in favor of the

Association is void because it purported to foreclose Bank of America's superior interest

in the property and ordered the sale of the property free and clear of all claims by Bank

of America. On remand, the trial court is directed to grant Bank of America's motion for

relief from judgment pursuant to rule 1.540(b) and to vacate the final judgment of

foreclosure.

               Reversed and remanded with instructions.




               5TheAssociation may enforce its interests in the unpaid assessments
through foreclosure of its claim of lien. § 718.116(6)(a).


                                             - 10 -
CASANUEVA and SALARIO, JJ., Concur.




                                  - 11 -
