       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

      ARK REAL ESTATE SERVICES, INC., a Florida corporation,
                         Appellant,

                                   v.

       21st MORTGAGE CORPORATION, a Foreign corporation,
                         Appellee.

                             No. 4D20-122

                            [July 29, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Laurie E. Buchanan, Judge; L.T. Case No. 47-2014-
CA-000472.

  Charles    Wender,   Attorney-at-Law,   Chartered,   Boca   Raton,   for
appellant.

   Sonia Henriques McDowell of Quintairos, Prieto, Wood & Boyer, P.A.,
Orlando, for appellee.

GROSS, J.

   A purchaser of real property at a foreclosure sale sued a lender that
repossessed a mobile home from the land after the sale. The purchaser
claimed that the foreclosure judgment extinguished the lender’s lien on
the mobile home. We hold that the lender’s lien survived the foreclosure
sale and that the circuit court properly entered judgment against the
purchaser on its claims of conversion and civil theft.

  In 2007, Craig Gopher took out a loan from Seacoast National Bank to
purchase a parcel of real property (the “Gopher land”). To finance the
purchase, Gopher executed a note and mortgage in favor of Seacoast. The
mortgage contained an after-acquired property clause, so that the
mortgage encumbered the Gopher land, together with “all the
improvements now or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property.”

   Several years after this purchase, Gopher entered into a financing
agreement with 21st Mortgage Corporation to purchase a mobile home.
The financing agreement gave 21st Mortgage a security interest in the
mobile home. The financing agreement stated:

      Borrower agrees that the Manufactured Home is, and shall
      remain, during the term of this Note, personal property.
      Unless Lender gives prior written consent, Borrower shall not
      allow the Manufactured Home to become a part of real estate
      or to lose its status as personal property under applicable law.

   21st Mortgage filed a notice of its lien with the Department of Motor
Vehicles; the Department issued a certificate of title showing 21st
Mortgage as the first lienholder on the mobile home. 21st Mortgage also
recorded in the county records a “Notice of Security Interest In
Manufactured Home Pursuant to Florida Statute Section 197.502(4)(g).” 1

   In 2013, Seacoast filed a complaint to foreclose its mortgage on the
Gopher land. Seacoast named various defendants, including Gopher and
21st Mortgage. Seacoast alleged that it held a mortgage on the real
property described in the mortgage, that Gopher owned and was in
possession of the property, and that Gopher had defaulted on the loan.
Paragraph 11 of the complaint contained these allegations concerning 21st
Mortgage:

      21st MORTGAGE CORPORATION, may claim some interest in
      and to the subject property by virtue of a Notice of Security
      Interest in Manufactured Home, recorded on June 13, 2011,
      in Official Records Book 702 at Page 1, Okeechobee County,
      Florida, or may otherwise claim an interest in the subject
      propert(ies); however, any such right, title or interest in and
      to said property is subordinate, junior, and inferior to the lien
      of Plaintiff’s Original Mortgage Documents.

The complaint contained no other reference to the mobile home and did
not identify the mobile home by VIN number. Similarly, the notice of lis
pendens did not include any reference to the mobile home in the legal
description.



1 Section 197.502(4), Florida Statutes (2013), contains a list of those persons who
are to be notified prior to a tax sale. Subsection (g) requires that such notice be
given to “[a]ny lienholder of record who has recorded a lien against a mobile home
located on the property described in the tax certificate if an address appears on
the recorded lien and if the lien is recorded with the clerk of the circuit court in
the county where the mobile home is located.”

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   21st Mortgage raised no defenses in the Seacoast foreclosure action.

    In August 2013, the circuit court entered a final judgment of foreclosure
in favor of Seacoast. The judgment stated that Seacoast “holds a lien for
the total sum superior to all claims or estates of defendant(s)” on the
Gopher land.

   On September 25, 2013, Ark purchased the Gopher land at a
foreclosure sale for $68,100. Ark’s principal testified that he believed the
mobile home was being sold with the Gopher land “because 21st Mortgage
was a named defendant in the foreclosure [action] and they never bothered
to answer.” Based on the final judgment of foreclosure, Ark’s principal
thought that 21st Mortgage’s lien would be extinguished by the foreclosure
sale. Ark would not have paid $68,100 if its principal knew that the mobile
home was not included with the property as part of the sale.

   Ark did not run a title search or check DMV records before bidding on
the Gopher land.

   On September 26, 2013, the day after the foreclosure sale, a dispute
arose between Ark and 21st Mortgage over whether the foreclosure sale
included the mobile home.

   That same day, 21st Mortgage began to repossess the mobile home.
The repossession took six days. The mobile home had three bedrooms and
two baths, was anchored to the land, and was hooked up to water, sewer,
and electric services. 21st Mortgage later sold the mobile home for around
$38,000.

   Ark unsuccessfully moved to vacate the foreclosure sale. Ark then sued
21st Mortgage for damages arising out of the repossession of the mobile
home, asserting claims for conversion and civil theft.

    After a non-jury trial, the circuit court entered judgment in favor of 21st
Mortgage. The court concluded that the mobile home was not included in
the Seacoast foreclosure, so Ark did not acquire any ownership interest in
the mobile home when it purchased the Gopher land at the foreclosure
sale. The court noted that none of the pleadings in the foreclosure made
reference to the mobile home and that 21st Mortgage had perfected its lien
on the mobile home according to Florida law. Citing to Barnett Bank of
Clearwater, N.A. v. Rompon, 377 So. 2d 981, 983 (Fla. 2d DCA 1979), the
court observed that when a mobile home is located on real property subject
to foreclosure, a check of the records of the Department of Motor Vehicles
is advisable. The court held that 21st Mortgage “maintained a superior

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interest” in the Gopher land, so that it “could not have acted against [Ark’s]
ownership interest when it repossessed” the mobile home.

   On appeal, Ark argues that the mobile home became part of the Gopher
land. It contends that the mobile home was permanently affixed to the
real estate and was captured by the mortgage’s after-acquired property
clause, so 21st Mortgage’s security interest in the mobile home was
extinguished by the final judgment.

    We reject Ark’s argument for two reasons: (1) under Florida law, the
issue of priority is established by statute, so the mobile home’s status as
a fixture does not impact the validity of the security interest on the mobile
home; and (2) the foreclosure action only extinguished competing interests
in the Gopher land, not any interest in the mobile home.

   The Uniform Commercial Code provides that “[t]he local law of the
jurisdiction under whose certificate of title the goods are covered governs
perfection . . . and the priority of a security interest in goods covered by a
certificate of title from the time the goods become covered by the certificate
of title until the goods cease to be covered by the certificate of title.” §
679.3031(3), Fla. Stat. (2013).

   “[A] mobile home is classified as a motor vehicle under Florida law and
must be registered with and titled by the Department.” Rompon, 377 So.
2d at 983. Perfection of a security interest in a mobile home is controlled
by section 319.27(2), Florida Statutes (2013), which provides in relevant
part:

     (2) No lien for purchase money or as security for a debt in the
     form of a security agreement, retain title contract, conditional
     bill of sale, chattel mortgage, or other similar instrument or any
     other nonpossessory lien, including a lien for child support,
     upon a motor vehicle or mobile home upon which a Florida
     certificate of title has been issued shall be enforceable in any of
     the courts of this state against creditors or subsequent
     purchasers for a valuable consideration and without notice,
     unless a sworn notice of such lien has been filed in the
     department and such lien has been noted upon the
     certificate of title of the motor vehicle or mobile home.
     Such notice shall be effective as constructive notice when
     filed.

(Emphasis supplied). Once a lender has complied with the statute, there
is no requirement that a lender reperfect its security interest in a mobile

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home “in the event the mobile home subsequently becomes a fixture to
real property.” Rompon, 377 So. 2d at 983.

    Confusion sometimes arises because of taxing statutes, which focus on
whether a mobile home is permanently affixed to real property. “A mobile
home shall be taxed as real property if the owner of the mobile home is
also the owner of the land on which the mobile home is permanently
affixed.” § 193.075(1), Fla. Stat. (2013). Although a mobile home may be
classified as real property for taxing purposes, any mobile home classified
by a lender as personal property at the time a security interest was granted
continues to be so classified for all purposes relating to the security
interest as long as any part of the debt remains outstanding. § 320.015(1),
(2), Fla. Stat. (2013). Section 320.015 provides as follows:

      (1) A mobile home, as defined in s. 320.01(2), regardless of its
      actual use, shall be subject only to a license tax unless
      classified and taxed as real property. A mobile home is to be
      considered real property only when the owner of the mobile
      home is also the owner of the land on which the mobile home
      is situated and said mobile home is permanently affixed
      thereto. Any prefabricated or modular housing unit or portion
      thereof not manufactured upon an integral chassis or
      undercarriage for travel over the highways shall be taxed as
      real property once it is permanently affixed to real property.
      This subsection does not apply to a display home or other
      inventory being held for sale by a manufacturer or dealer of
      modular housing units.

      (2) Notwithstanding the provisions of subsection (1), any
      mobile home classified by a seller or a lender as personal
      property at the time a security interest was granted
      therein to secure an obligation shall continue to be so
      classified for all purposes relating to the loan and
      security interest, at least as long as any part of such
      obligation, or any extension or renewal thereof, remains
      outstanding. Classification of a mobile home as personal
      property by a seller or a lender shall not prohibit the owner
      from having the mobile home classified and taxed as real
      property under subsection (1).

§ 320.015(1), (2), Fla. Stat. (2013)

   21st Mortgage established its lien in the mobile home pursuant to
section 319.27(2). The mobile home was identified as personal property

                                       5
in the loan documents and it did not lose such a classification, even if it
was later deemed to be affixed to the land for tax purposes.

    Rompon is instructive here. There, the Second District held that a
lender’s security interest, as noted on a mobile home’s certificate of title,
had priority over any interest in the mobile home obtained by the
purchaser of the underlying land at a Sheriff’s sale. 377 So. 2d at 983. “It
may well be,” the court declared, “that the mobile home was so affixed to
the land as to become a fixture, but that is not the determinative factor
here.” Id. Instead, the court explained, even when a mobile home becomes
a fixture to real property after a lender has financed the purchase of the
mobile home, any interest in the mobile home obtained by the purchaser
of the land at a Sheriff’s sale is subject to the lender’s perfected security
interest:

      At the time of financing the Rompon purchase of the mobile
      home, the appellant perfected its security interest according
      to law. There is no requirement that appellant reperfect its
      security interest pursuant to Chapter 679 in the event the
      mobile home subsequently becomes a fixture to real property.
      Under the provisions of Chapters 319 and 320, Florida
      Statutes, appellees’ interest in the mobile home is subject to
      appellant’s perfected security interest. A check of the records
      of the Department is required even though a mobile home has
      actually become a fixture to real property.

Id.

   In this case, although the mobile home was anchored to the land and
hooked up to utilities, the financing agreement between Gopher and 21st
Mortgage demonstrated Gopher’s intent that the mobile home remain
personal property throughout the term of the loan. In fact, the financing
agreement prohibited Gopher from allowing the mobile home “to become a
part of real estate or to lose its status as personal property under
applicable law.” In addition, section 320.015(2) expressly states that any
mobile home classified by a lender as personal property at the time a
security interest was granted shall continue to be so classified for all
purposes relating to the security interest as long as any part of the debt
remains outstanding.

   The Seacoast foreclosure did not impact 21st Mortgage’s security
interest in the mobile home. The purpose of the complaint was to foreclose
on the real property described in the Seacoast Mortgage—the Gopher
land—and, with respect to 21st Mortgage, to establish that its interest in

                                     6
the land, if any, was inferior to that of Seacoast. Nothing in the complaint
was directed at the mobile home, which remained personal property
outside the scope of the foreclosure. Because the foreclosure judgment on
the Gopher land did not terminate 21st Mortgage’s security interest in the
mobile home, Ark acquired no ownership interest in the mobile home when
it purchased the land at the foreclosure sale. 21st Mortgage’s repossession
of the mobile home therefore violated no property interest of Ark, so the
trial court properly entered judgment against Ark on its claims for
conversion and civil theft.

   To Ark’s complaints that it was misled by the foreclosure judgment, we
echo the observation of the Rompon court. To completely understand the
status of a mobile home on real property, it is necessary to check the
records of the Department of Motor Vehicles.

   Affirmed.

WARNER and GERBER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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