This appeal is from the final summary judgment of foreclosure upon cross motions
for summary judgment for mortgage and lien foreclosures. U.S. Bank
National Association, as Trustee for Structured Asset Investment Loan Trust,
Mortgage Pass-Through Certificates, Series 2005-3 (“U.S. Bank”) appeals the
portions of the final summary judgment wherein the trial court, “pursuant to the
Court’s order of April 17, 2012,” deemed the lien for association fees of Sides
Moreno Point West Owners’ Association, Inc. (“the Association”) superior in
priority to the mortgage lien of U.S. Bank. U.S. Bank contends that the trial court
abused its discretion by sanctioning U.S. Bank with a penalty which contravenes
the statutory provisions governing lien priority and which ignores the complete and
adequate procedures and remedies at law available if a party fails to diligently
prosecute its case or willfully employs delay tactics in the litigation. We agree
and reverse the challenged portion of the final summary judgment of foreclosure
and the prior order upon which it is based. In all other respects, the final summary
judgment of foreclosure is affirmed
U.S. Bank filed its complaint for foreclosure in the circuit court on July 15,
2007. The Association was included as a party defendant based on its claim of lien
2for condominium association assessments, which—according to the allegations of
the complaint—had been recorded in the official records of Okaloosa County prior
to the filing of U. S. Bank’s complaint.
The litigation progressed slowly for four years after the filing of the initial
complaint. However, the record contains no motion under rule 1.420(e), Florida
Rules of Civil Procedure and no notice for trial or order setting the action for trial
pursuant to rule 1.440. On September 1, 2011, upon U.S. Bank’s motion to
dismiss the Association’s counterclaim and upon an unrecorded hearing on that
motion, the circuit court entered an order denying the motion to dismiss. In that
order, the court found that U.S. Bank had delayed the case and failed to act upon it.
As a “sanction,” the court ordered U. S. Bank to pay $2,500.00 to the Association.
In early 2012, U.S. Bank filed its motion for summary judgment of
foreclosure, which included allegations that its mortgage was recorded prior to the
liens of other defendants and was thus superior in interest to those liens.