Mortgage foreclosure actions are equitable in nature. See § 702.01,
U.S. Bank Nat. Ass'n v. Farhood, 153 So. 3d 955, 958 (Fla. 1st DCA. 2014). However, the “long-enduring
principle that equity will not act when there is a full, adequate, and
complete remedy at law applies to mortgage foreclosure actions and continues
in effect today.”
Wildwood Crate & Ice Co. v. Citizens Bank of Inverness, 98 Fla. 186, 192, 123 So. 699, 701 (1929);
Jackson v. Computer Science Raytheon, 36 So.3d 754, 756 (Fla. 1st DCA 2010) (recitation of rule);
Creamer v. Aultman, 445 So. 2d 382, 385 (Fla. 4th DCA 1984) (holding that a court in its
discretion may refuse to grant a prayer for foreclosure for equitable reasons).
When the rule governing priority of lien interests is at issue by way of
a Mortgage versus an Association lien, then one must adhere to the old
adage of “first in time is first in right.”
Walter E. Heller & Co. Southeast, Inc. v. Williams, 450 So.2d 521, 532 (Fla. 3d DCA 1984),
review denied, 462 So.2d 1108 (Fla. 1985). For example, if a party acquires a property
at an association foreclosure sale, meaning that the sale flowed from
a foreclosure judgment being entered upon a filed and recorded association’s
lien then that lien may in fact take priority over a mortgage where the
association lien is first in time because it relates back to the recording
date of the declaration of covenants and not merely upon when the lis
pendens was filed.
Bessemer v. Gersten, 381 So.2d 1344 (Fla. 1980). If the Declaration existed prior to the Mortgage
upon which the Plaintiff is seeking to foreclose, then the Bank’s
mortgage interest may, depending on the circumstances be inferior to all others.
See Composite Exhibit “A.”
Ass'n of Poinciana Villages v. Avatar Properties, Inc., 724 So. 2d 585 (Fla. 5th DCA 1998);
Fed. Nat. Mortgage Ass'n v. McKesson, 639 So. 2d 78 (Fla. 4th DCA 1994)
approved sub nom.
Holly Lake Ass'n v. Fed. Nat. Mortgage Ass'n, 660 So. 2d 266 (Fla. 1995);
Holly Lake Ass'n v. Fed. Nat. Mortgage Ass'n, 660 So. 2d 266 (Fla. 1995). A Bank plaintiff’s subsequent and inferior
right to pursue whatever interests once may have existed in a subject
property would then be extinguished.
See New York Life Ins. & Annuity Corp. V. Hammocks Community Ass’n Inc., 622 So. 2d 13699 (Fla. 3d DCA 1993).