Grand Palace View, LLC v. 5 AIF Maple 2, LLC
The Third District reversed a non-final order granting a mortgagee immediate possession of mortgaged real property before any answer was filed. The court held that Florida is a lien-theory state, so a mortgagee generally has no right of possession before foreclosure, and that the order-to-show-cause requirements of section 702.10(2) — which is unavailable for owner-occupied residential real estate — were not followed, including the trial court's unsupported finding (made on argument of counsel at a five-minute motion calendar, without evidence) that the property was commercial.
Key facts
- Grand Palace View, LLC (mortgagee) sought immediate possession of real property from 5 AIF Maple 2, LLC (mortgagor) during a pending foreclosure action.
- The trial court granted an order giving the mortgagee immediate possession before any answer was filed, based on a five-minute motion calendar hearing where counsel argued the property was commercial.
- +2 more key facts with a free trial
Why it matters
This gives commercial and residential borrowers a clear roadmap to defeat pre-judgment possession orders in foreclosure: the lien-theory rule trumps contractual automatic-possession clauses, and the lender must satisfy… — full analysis with a trial
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