In a most welcome 180 degree turnabout, the Fourth District Court of Appeal withdrew its earlier opinion in Ober v. Town of Lauderdale-By-The-Sea and issued a new opinion on Wednesday. Last August, the Court held that a lien that exists or arises after the entry of final judgment of foreclosure attaches to the property and is not discharged upon the foreclosure sale. The Court determined the Florida lis pendens statute, section 48.23(1)(d), only serves to discharge liens that exist or arise prior to entry of final judgment, unless, of course, appropriate steps are taken to protect those interests.
This decision sent shock waves through the mortgage and real property cosmos, prompting many attorneys to describe the Court’s interpretation of the lis pendens statute as an “evisceration.” The decision also prompted Mr. Ober to file a motion for rehearing. The Court’s opinion on rehearing no longer eviscerates, but instead invigorates, the lis pendens law. The Court’s recent opinion interprets section 48.23(1)(d) to provide that a foreclosure sale discharges all liens, recorded both before the final judgment and after, unless the lienor intervenes in the foreclosure action within thirty days after the lis pendens is recorded – no matter how long the delay between the final judgment and the foreclosure sale. The alternate hardline rule established by the Court’s withdrawn opinion could not be in starker contrast.
Also in stark contrast is the manner in which the Court addresses Form 1.996(a) of the Florida Rules of Civil Procedure in its two opinions. Form 1.996(a) provides a sample foreclosure judgment, with the following provision:
On filing the certificate of sale, defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property . . ., except as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any.
In its earlier opinion, the Court describes Form 1.996(a) as an apparent “misstatement of the law.” However, in its opinion granting Ober’s motion for rehearing, the Court states the form, “reflects the common understanding of the operation of the lis pendens statute.” The Court then cites to Hancock Advert., Inc. v. Dep’t of Transp., 549 So. 2d 1086 (Fla. 3d 1989), which holds, in pertinent part, that a court may consider practical statutory construction that has been adopted by the relevant industry when engaged in matters of statutory interpretation. The Ober Court then notes that Form 1.996(a) was first adopted in 1971 and has been subject to continuous review and revision by the Florida Supreme Court since that date, most recently in January 2016. The Florida Supreme Court’s recent decision not to revise this language, particularly given the pending dispute over the issue, was likely a significant factor guiding the Ober Court’s decision to withdraw its earlier opinion and grant the motion for rehearing (though the latest revision does predate the August 2016 opinion). It also may predict the outcome of any higher appellate review of the Ober opinion.
A statute prone to such disparate interpretations on appeal is likely to be revisited by the Florida Legislature sooner rather than later, and Florida Supreme Court review is still possible. A challenge to this opinion via a notice invoking Florida Supreme Court jurisdiction must be filed by February 24, 2017. Thus, while we certainly hope the latest outcome sticks, Ober might not be over quite yet.