ISMAEL V. CERTAIN LANDS

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State: Florida

Court: Florida Third District Court

Docket No: 10-1394

Case Date: 12/29/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 29, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-1394 Lower Tribunal No. 05-14394 ________________

Manuel Ismael,
Appellant, vs.

Certain Lands Upon Which Special Assessments are Delinquent,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Gisela Cardonne Ely, Judge. Peter C. Bianchi, Jr., for appellant. Kuvin & Stettin and Eric L. Stettin (Fort Lauderdale), for appellee Joel Israel; John L. Penson, for appellee Bullet Cement Co.

Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ. ROTHENBERG, J.

Manuel Ismael ("the former owner") appeals from an order denying his exceptions to the report and recommendation of the general magistrate, and the final order denying his motion to vacate the default final judgment and foreclosure sale. We affirm. In 2003, the City of Miami passed an ordinance authorizing the City Attorney "to take any action in law or in equity to collect on municipal liens, including, but not limited to foreclosure," and providing the City Attorney with the power to "delegate this authority to the holders of municipal liens or their counsel." Miami, Fla., Resolution R-03-1221 (Dec. 18, 2003). Joel Israel ("the lienholder") had previously purchased lien certificates from the City on multiple properties upon which special assessments were outstanding. One of those

properties ("Parcel 9") belonged to the former owner. On June 1, 2004, the City Attorney sent a letter to the lienholder, assigning to him the City's right to take any action at law or in equity to collect on the lien certificates the lienholder held. Pursuant to that assignment, counsel for the lienholder mailed two written notices of his intent to foreclose on Parcel 9 to the former owner. The former owner did not respond. In July 2005, the lienholder, "as authorized delegate and assignee of the City of Miami," filed the instant action in rem to foreclose on a number of properties, including Parcel 9. The lienholder proceeded under section 173.02, Florida Statutes (2005), which provides for actions in rem to foreclose

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upon outstanding special assessment liens. Section 173.04(1) provides that such suits shall be brought "in the name of the city or town whose . . . special assessments are sought to be enforced." Notice and a copy of the complaint were sent by certified mail and received by the former owner. Also, the clerk of the trial court published notice of the lawsuit in a weekly newspaper. The former owner did not appear, and the trial court granted the lienholder's motion for default. On April 3, 2006, the trial court entered a final default judgment of foreclosure as to Parcel 9. The trial court appointed a special master to conduct the foreclosure sale. Notice of the sale was mailed to the former owner and published by the clerk of the trial court in a weekly newspaper. Bullet Cement Co. ("Bullet") was the highest bidder at the foreclosure sale. On May 18, 2006, the trial court confirmed the sale, and Bullet obtained title to Parcel 9. In December 2007, the former owner moved to vacate the final default judgment of foreclosure and sale, arguing that the judgment was void. The trial court referred the matter to a general magistrate who, after a series of evidentiary hearings, issued her report and recommendation rejecting the former owner's arguments. The trial court issued an order denying the former owner's exceptions to the general magistrate's report and recommendation. The trial court then issued

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an order denying the former owner's motion to vacate the final default judgment. This appeal followed. The former owner first argues that the final default judgment is void because the lienholder had no standing to proceed under chapter 173. Because section 173.04(1) requires that such actions in rem be commenced "in the name of the city or town whose . . . special assessments are sought to be enforced," the former owner contends that under no circumstances may an individual commence an action under chapter 173. We disagree. Without question, the City was authorized to commence a chapter 173 foreclosure action. By valid ordinance,1 the City Attorney was granted the

authority to delegate and assign the City's right to take any action at law or in equity to collect on outstanding special assessment liens to individual lienholders. By letter, in June 2004, the City Attorney assigned to the lienholder the City's right to foreclose on multiple properties, including Parcel 9. In Florida, statutory rights are freely assignable in the absence of an express or obvious prohibition. VOSR Indus., Inc. v. Martin Props., Inc., 919 So. 2d 554, 556 (Fla. 4th DCA 2005) ("Florida law recognizes the general right to assign common law and statutory rights, unless there is an express prohibition in a statute, or a showing that an As the general magistrate correctly found, the four-year statute of limitations in section 95.11(3)(p), bars any challenge to Miami, Florida, Resolution R-03-1221, and thus, the ordinance is valid.
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assignment would clearly offend an identifiable public policy."); see also Art. VIII,

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