    Third District Court of Appeal
                            State of Florida

                         Opinion filed July 18, 2018.
      Not final until disposition of timely filed motion for rehearing.

                            ________________

                             No. 3D17-1493
                         Lower Tribunal No. 16-4
                           ________________


         Valerie Viviane Bensoussan and Marc Cohen,
                                Appellants,

                                       vs.

                       Banon5 LLC, etc., et al.,
                                 Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.

     Xander Law Group, P.A., and Wayne R. Atkins, for appellants.

     Eric J. Grabois, for appellees.


Before SALTER, EMAS and LOGUE, JJ.

     SALTER, J.
      Valerie Bensoussan and Marc Cohen (“Prior Owners”) appeal a final

judgment and circuit court order dismissing their amended complaint with

prejudice. We reverse and remand the case for further proceedings.

      Circuit Court Proceedings and 2015 Appeal

      The appellees are a company (“Banon5”) which acquired title to the

condominium unit previously owned by the Prior Owners (the “Unit”). The

Prior Owners lost title to the Unit in a foreclosure; Banon5 was the

successful bidder at the foreclosure sale. Another appellee, Pierre Elmaleh,

is a principal and agent of Banon5.

      Following the foreclosure sale, the Prior Owners commenced an

earlier appeal to this Court seeking review of orders denying their objections

to the foreclosure sale and their motion to vacate that sale. That prior

appeal, Cohen v. Laze-E-J, LLC, Case No. 3D15-1382, was pending when

Banon5 sought and obtained issuance of a writ of possession (July 1, 2015)

in order to obtain possession and control of the Unit. Neither the final

judgment of foreclosure nor the writ of possession, however, authorized

Banon5 to take or retain possession of the Prior Owners’ personal property

within the Unit.

      On the same day the trial court granted Banon5’s motion for a writ of

possession, the Prior Owners filed an emergency motion in this Court for



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review of the trial court’s order denying a stay pending their appeal. Before

the writ of possession was carried out, this Court entered a temporary stay

(July 2, 2015) and directed that a response to the emergency motion be filed

within ten days by the foreclosing lender and Banon5 in Case No. 3D15-

1382.

        After consideration of Banon5’s response, this Court lifted the

temporary stay on July 14, 2015.1 The following day, Banon5 and Elmaleh

brought the police to the Unit to carry out the writ of possession.

        The execution of the writ of possession and disposition of the Prior

Owners’ personal property inside the Unit became the subject of a separate,

2016 lawsuit by the Prior Owners against Banon5, Elmaleh, and the

condominium association.2      The present appeal was taken from the final

judgment and order of dismissal in that separate case.

        In their first amended complaint in the 2016 lawsuit, the Prior Owners

alleged four of the five counts against Banon5 and Elmaleh, for civil theft,


1  In November 2015, the Prior Owners voluntarily dismissed their earlier
appeal (Case No. 3D15-1382) relating to their motion to vacate the final
judgment of foreclosure and their objections to the foreclosure sale to
Banon5.
2  This appeal does not involve the claim by the Prior Owners against the
condominium association; the Prior Owners voluntarily dismissed that claim
with prejudice before the trial court entered the final order presently under
review.

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conversion, replevin, and negligence, and a single negligence count against

the association. The allegations essentially contended that: Banon5 and

Elmaleh did not allow the Prior Owners a reasonable time (following this

Court’s termination of the temporary stay) within which to remove their

personal property from the Unit; Banon5 and Elmaleh had no right to

possession or control of that personal property; Banon5 and Elmaleh

wrongfully changed the locks and denied access to the Unit to the Prior

Owners and their scheduled movers, depriving them of the opportunity to

move the personal property to their new residence; and unlicensed movers

and persons hired by Banon5 and Elmaleh stole the personal property “for

their own use, or to be sold for their benefit.”3

      In 2017, the trial court entered the final judgment and order

dismissing the first amended complaint with prejudice, and this appeal

followed.

      Analysis



3  The amended complaint acknowledges that a limited number of items of
the Prior Owners’ personal property were returned to the control of the Prior
Owners in August 2015 as the Miami Beach police investigated the loading
of a pickup truck with those items. Allegedly, the items were being removed
from the condominium by employees of Banon5 and Elmaleh. The itemized
list of the Prior Owners’ personal property subject to their claims and
located in the Unit at the time they were locked out included estimated
values for each item and a total exceeding $209,000.00.

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        We review de novo the final order of dismissal with prejudice,

assuming all allegations of the first amended complaint to be true, and

construing all reasonable inferences from those allegations in favor of the

Prior Owners. United Auto. Ins. Co. v. Law Offices of Michael I. Libman,

46 So. 3d 1101, 1103-04 (Fla. 3d DCA 2010).

               I.     Section 83.62, Florida Statutes, Is Inapplicable

        The trial court order states that the Prior Owners were alleging that

“the put-out on July 15, 2015 is governed by Florida Statutes § 83.62.” That

statute is a part of the Florida Residential Landlord and Tenant Act, and the

Act applies to “the rental of a dwelling unit.”4          Section 83.62 is not

applicable to a writ of possession to dispossess a former owner remaining in

possession after a foreclosure sale with no rental agreement in effect.

        But the trial court’s order was incorrect in its implications that all of

the Prior Owners’ claims relied on that statute, and that the statute itself

offered Banon5 and Elmaleh “an immunity from liability for any loss,

destruction or damage to the personal property after its removal from the

premises.” The amended complaint mentioned section 83.62 in a footnote to

one paragraph of the general allegations and in one paragraph within the

conversion count. There is no separate claim grounded on a violation of


4   § 83.41, Fla. Stat. (2015).

                                         5
section 83.62, nor are the causes of action alleged in the amended complaint

irrevocably tethered to a breach of that statute.

      Section 83.62(2) applies to a writ of possession executed by the

sheriff regarding a residential apartment. It authorizes the landlord or an

agent of the landlord to “remove any personal property [of the tenant being

evicted] found on the premises to or near the property line.” When that

procedure has been followed, “Neither the sheriff nor the landlord or the

landlord’s agent shall be liable to the tenant or any other party for the loss,

destruction, or damage to the property after it has been removed.” Id.

      Because the statute is inapplicable to the record before us, however, it

does not provide immunity for Banon5 or Elmaleh, or legal grounds for the

order dismissing the Prior Owners’ amended complaint with prejudice. The

parties were never landlord and tenant, one to the other. Our conclusion on

this point aligns with that of the Fifth District in Skelton v. Real Estate

Solutions Home Sellers, LLC, 202 So. 3d 960 (Fla. 5th DCA 2016).

             II.    Equitable Subrogation to Mortgagee’s Rights

      The order of dismissal also determined that Banon5 and Elmaleh had

a legal right to retain the Prior Owners’ personal property because Banon5

had become equitably subordinated to the foreclosing mortgagee’s rights.

The order observed that the mortgage in this case encumbered “all furniture,



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furnishings, fixtures and equipment contained in or appurtenant to said

premises [the Unit].”

      An examination of the final judgment of foreclosure, however,

discloses that the mortgage lien and the sale only included the Unit, and not

any personal property within the Unit. The subrogation argument also fails

under the well-settled principle of merger. Nack Holdings, LLC v. Kalb, 13

So. 3d 92, 94 (Fla. 3d DCA 2009); Whitehurst v. Camp, 699 So. 2d 679, 682

(Fla. 1997).

      When a final judgment is entered foreclosing a mortgage, the

mortgage itself “loses its identity,” and the final judgment itself controls the

mortgagee’s/judgment creditor’s rights. Nack Holdings, LLC, 13 So. 3d at

94 n.2 (quoting Whitehurst, 699 So. 2d at 682). At the foreclosure sale, the

Clerk only sold the Unit, and there existed no residual mortgage lien for

Banon5 to buy regarding the personal property within the Unit.

               III.   The Prior Owners’ Claims

      We agree with the trial court that the Prior Owners do not have a

cause of action for property removed from the Unit in the presence of the

police pursuant to the writ of possession. That said, however, we find that

the allegations of the first amended complaint state a cause of action

regarding Banon5’s and Elmaleh’s exercise of control over the Prior



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Owners’ personal property in the Unit after the locks were changed and after

Elmaleh refused to allow the Prior Owners and their movers to enter the

Unit to remove property in the Unit. Envases Venezolanos, S.A. v. Collazo,

559 So. 2d 651, 652-53 (Fla. 3d DCA 1990).           The allegations in the

amended complaint and its attachments are legally sufficient “[u]nder the

applicable standard of review at this procedural point,” though the

allegations remain subject to proof, defenses, and affirmative defenses as the

case proceeds. See Ice v. Cosmopolitan Residences on S. Beach, a Condo.

Ass’n, 237 So. 3d 408, 412 (Fla. 3d DCA 2017).

             IV.   Conclusion

      The final judgment and order granting dismissal of the amended

complaint with prejudice is reversed and the case is remanded to the trial

court for further proceedings.




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