       Third District Court of Appeal
                               State of Florida

                         Opinion filed September 3, 2014.
         Not final until disposition of timely filed motion for rehearing.

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                                No. 3D13-684
                         Lower Tribunal No. 11-42770
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                                  NLG, LLC,
                                    Appellant

                                        vs.

                              Elizabeth Hazan,
                                    Appellee

      An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.

      Megan K. Wells (Miramar), for appellant.

      Levine & Partners and Allan S. Reiss; Mark D. Cohen (Hollywood), for
appellee.


Before SUAREZ, SALTER and LOGUE, JJ.

      SALTER, J.

      A mortgage lender, NLG, LLC (NLG), appeals a final judgment for the

mortgagor, Elizabeth Hazan. Finding no basis in the pleadings or applicable law
for the positions advanced by the borrower, we reverse and remand for further

proceedings.

      Facts and Procedural Background

      It is undisputed that NLG sold a home on Fisher Island to Ms. Hazan in

2007 for $5,100,000.00, receiving a purchase money note and mortgage on the

residence from Ms. Hazan for $1,275,000.00 of that amount.        The note and

mortgage required an instalment payment of $300,000.00 one month after the sale,

and the note was to mature six months after the sale.

      When the required payments were not forthcoming, NLG filed a lawsuit for

the collection of the promissory note in the Miami-Dade circuit court.        A

settlement agreement was entered into, but required payments again were not

made. In April 2008, and in accordance with the settlement agreement, a default

final judgment on the promissory note was entered against Ms. Hazan and in favor

of NLG for $1,618,071.29, plus post-judgment interest.      That judgment was

recorded on May 2, 2008. The final judgment was affirmed by this Court. Hazan

v. NLG, LLC, 995 So. 2d 504 (Fla. 3d DCA 2008). Ms. Hazan then obtained new

counsel and moved to vacate the judgment on the promissory note. The motion

was denied and Ms. Hazan’s further appeal was dismissed by this Court. Hazan v.

NLG, LLC, 19 So. 3d 319 (Fla. 3d DCA 2009).




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      NLG sought and obtained a sheriff’s deed to the Fisher Island property by

enforcing its judgment. Ms. Hazan moved to vacate that deed, however, on the

grounds that the property was her homestead. The then-assigned circuit judge

entered an order in December 2008 “quieting title,” although Ms. Hazan’s motion

and the record establish that the order merely extinguished the sheriff’s deed.

Later, and in this appeal as well, Ms. Hazan argued that the quiet title order also

extinguished the lien of NLG’s mortgage.

      The parties nevertheless entered into a second settlement agreement, and

Ms. Hazan made three of the specified payments before defaulting again in

February 2009. After additional settlement negotiations were unavailing, NLG

filed a complaint to foreclose its mortgage on the Fisher Island home in 2011. In

2012, NLG amended its complaint to add as a defendant the holder of a recorded

junior mortgage for $2,000,000.00. NLG alleges that this mortgage was given by

Ms. Hazan to a sham Florida limited liability company established by her mother.

      The foreclosure case proceeded to non-jury trial, and the trial court entered a

final judgment in favor of Ms. Hazan, incorporating the transcript of his post-trial

ruling (January 2, 2013) into the final judgment “as though set forth herein.” This

appeal followed.

      Analysis




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      A review of Ms. Hazan’s pleadings, applicable law, and the transcript of the

trial court’s January 2, 2013, hearing, discloses no basis for denying foreclosure to

NLG. Default in payment was undisputed (conceded in writing, as it was, in the

various settlement agreements, which also included waivers of any defenses). The

two arguments advanced by Ms. Hazan’s counsel were flawed.

      First, NLG’s prior suit on the promissory note and recordation of a judgment

on the note was not an election of remedies precluding the later enforcement of the

mortgage. Junction Bit & Tool Co. v. Village Apartments, Inc., 262 So. 2d 659

(Fla. 1972) (unsatisfied judgment on a promissory note secured by mortgage did

not constitute a remedy or a bar to a suit to foreclose the mortgage). See also

Royal Palm Corporate Ctr. Ass’n, Ltd. v. PNC Bank, NA, 89 So. 3d 923 (Fla. 4th

DCA 2012).

      As to the second argument advanced by Ms. Hazan’s counsel, the December

2008 order “quieting title” did not extinguish the mortgage or its lien. That order

quieted title in Ms. Hazan only to the extent it vacated the sheriff’s deed obtained

by NLG and disentitled anyone in possession (other than Ms. Hazan) to remain in

possession. Neither the motion nor the order support the extinguishment of an

unpaid purchase money lien on the home (now exceeding $2,000,000.00), a lien

senior to the junior mortgage granted by Ms. Hazan as these proceedings unfolded.

Because there is no legal basis for such relief in Ms. Hazan’s pleadings, the trial



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court’s final judgment must be reversed. BAC Home Loans Servicing, Inc. v.

Headley, 130 So. 3d 703, 705 (Fla. 3d DCA 2013); Mullne v. Sea-Tech Constr.

Inc., 84 So. 3d 1247, 1249 (Fla. 4th DCA 2012).

      Regarding Ms. Hazan’s affirmative defenses to the effect that NLG and its

representative at trial lacked standing because of an internal dispute among the

members, the trial court explicitly stated in the January 2, 2013, transcript

(incorporated by the final judgment) that NLG did have standing and that its

representative (Mr. Kosachuk) was a proper representative of NLG.

      Accordingly, we reverse the final judgment and remand the case for further

proceedings, including the enforcement of NLG’s mortgage and the reinstatement

of the lis pendens and amended lis pendens previously vacated by the final

judgment.

      Reversed and remanded.




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