Law Offices of Robin Bresky Obtains Affirmance of Condotel Foreclosure Judgment

Foreclosed

The Law Offices of Robin Bresky recently assisted three individuals and a corporation in prevailing in a foreclosure appeal. The clients received an affirmance of a Final Judgment of Foreclosure that had been entered in their favor as Plaintiffs in the trial court. The trial proceeding was a commercial foreclosure of a mortgage lien on more than fifty “condotel” units in Central Florida. A condotel building is legally a condominium but is operated as a hotel, offering short term rentals and maintaining a front desk.

The Defendants (borrowers) were an individual, two LLCs, and a corporation. They vigorously contested the foreclosure action in the lower court and on appeal. Their arguments included: (1) that our clients did not have standing to foreclose; (2) that the affidavit of indebtedness filed in support of our clients’ summary judgment motion was inconsistent with the complaint; and (3) that the affidavit did not satisfy the clients’ burden on summary judgment due to various deficiencies, including that it was signed by the clients’ trial attorney and did not satisfy the business records exception to hearsay.

The trial court granted summary judgment for our clients and entered Final Summary Judgment of Foreclosure in their favor. The borrowers then appealed the judgment to the Fifth District Court of Appeal.

The borrowers’ appeal not only made the same arguments they had made in the trial court, but also made several new arguments that were not raised before. Attorney Michele K. Feinzig, Of Counsel to The Law Offices of Robin Bresky, answered the borrowers’ appeal by pointing out that the borrowers could not raise arguments which had not been made in the trial court; they were waived. Additionally, those arguments were without merit. Attorney Feinzig also explained that clerk’s defaults had been entered against the borrowers and those defaults were never set aside, so under Florida law they were prohibited from contesting the merits of the foreclosure claim (other than as to the amount of unliquidated damages, which was not being contested).

On the issue of standing, Attorney Feinzig explained the law of standing in a foreclosure action, which has been the subject of much litigation in Florida, and showed how the undisputed record demonstrated our clients’ standing to foreclose.

As for the borrowers’ various arguments concerning purported deficiencies in the affidavit of indebtedness and the sufficiency of the clients’ summary judgment motion, our Answer Brief showed that those arguments were either prohibited by the clerk’s defaults against the borrowers. Further, they were not preserved for appeal and/or lacked merit.

The appellate court agreed with our clients and issued a per curiam affirmance (PCA), affirming the Final Judgment for our clients. The appellate court also granted our clients’ motion for entitlement to appellate attorneys’ fees. Our clients now look forward to seeking full recovery of all that they are owed due to the borrowers’ default of their obligations under the note and mortgage.