DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

2000 PRESIDENTIAL WAY, LLC,

Appellant,

v.

THE BANK OF NEW YORK MELLON, FIRST BANKS, INC., and

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,

Appellees.

No. 4D20-1811

[August 4, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Susan R. Lubitz, Judge; L.T. Case No. 502019CA009490.

Gregory Bryl, Sunny Isles Beach, for appellant.

Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of 

Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West 

Palm Beach, for appellee The Bank of New York Mellon.

No appearance for appellee First Banks, Inc.

No appearance for appellee Mortgage Electronic Registration Systems.

GROSS, J.

2000 Presidential Way, LLC, appeals a final declaratory judgment 

determining that it took title to certain real property at issue “subject, and 

with an inferior interest, to the mortgage, assignment of mortgage and all 

modifications thereof.” 

We affirm the final judgment, concluding that (1) Presidential had 

constructive notice of the assignment of mortgage because the assignment 

was recorded in compliance with the requirements of section 695.11,

Florida Statutes (2012), and (2) the warning in the recorded mortgage 

placed Presidential on notice that further inquiry was necessary to 

determine the existence of any modifications to the loan secured by the 

mortgage.
2

Facts

Maria Gutierrez took title to the subject property in 1997. She 

encumbered the property in 2005 with an $89,000 mortgage in favor of 

Mortgage Electronic Registration Systems (“MERS”) as nominee for First 

Bank d/b/a First Bank Mortgage (“First Bank”). The mortgage was 

recorded in 2005 in the Official Records of Palm Beach County. The 

mortgage states that it “secures to Lender . . . the repayment of the Loan, 

and all renewals, extensions and modifications of the Note[.]”

As nominee for First Bank, MERS assigned the mortgage to The Bank 

of New York Mellon (“BONY”) in 2012. The assignment of mortgage, which 

contains the property’s legal description, was recorded in June 2012 in the 

Official Records of Palm Beach County. The assignment of mortgage was 

not indexed in the name of the borrower, Ms. Gutierrez. Rather, it was 

indexed in the names of MERS and BONY, as the grantor and grantee. 

Ms. Gutierrez executed loan modification agreements in June 2009 and 

November 2015, but the modifications were not recorded.

In 2018, the property’s condominium association commenced an action 

to foreclose an assessments lien. BONY was not a party to the foreclosure 

action, nor was the mortgage foreclosed in that lawsuit. Following the 

entry of a final judgment of foreclosure, a certificate of title was issued to 

Terano Financial LLC (“Terano”).

Terano conveyed title to Presidential in 2019. Neither Terano nor 

Presidential contacted BONY about the status of the mortgage lien or the 

amounts it secured.

Shortly after taking title to the property, Presidential commenced the 

instant action for declaratory relief against First Bank.1 A default was 

entered against First Bank. Presidential later added MERS as a defendant.

In a second amended complaint, Presidential alleged that it was a 

purchaser for value and that the defendants violated section 701.04, 

Florida Statutes, by failing to timely provide an estoppel letter at the 

request of Presidential’s predecessor-in-interest, Terano. Presidential 

sought a declaration that the principal balance of the mortgage could not 

exceed the $89,000, the face amount on the recorded mortgage. 

Presidential also sought an award of attorney’s fees and costs. 

1 The complaint named First Banks, Inc., as the defendant, alleging that First 

Banks was formerly known as First Bank. However, this opinion will refer to the

entity as “First Bank.”
3

MERS was voluntarily dismissed from the action.

Presidential moved for summary judgment based on First Bank’s 

alleged violation of section 701.04. BONY then intervened as a defendant 

to the action and answered the second amended complaint. The parties 

filed a joint pretrial stipulation in which they stipulated to most of the key 

facts. 

The trial court denied Presidential’s motion for summary judgment, and 

the case proceeded to a bench trial. The record does not contain a 

transcript of the trial, but the clerk’s notes indicate that each side called 

a single witness. Presidential offered no documents into evidence, while 

BONY entered nine exhibits into evidence.

Following the trial, the trial court entered a final declaratory judgment 

in favor of BONY. The court concluded that Presidential was on notice of 

the assignment of mortgage to BONY when it took title in 2019, reasoning 

that the assignment of mortgage to BONY was recorded in 2012 and 

became “notice to all persons” at that time pursuant to section 695.11, 

Florida Statutes. The court further concluded that the language of the 

mortgage put Presidential on notice that “the mortgage loan may have been 

modified,” which imposed a duty on Presidential to inquire further. The 

court emphasized that Presidential failed to inquire with BONY as to the 

status of the mortgage lien or the amounts it secured. The trial court 

concluded that Presidential “took title to the property subject, and with an 

inferior interest, to the mortgage, assignment of mortgage and all 

modifications thereof.” This appeal ensued.

The Circuit Court Properly Entered Declaratory Judgment in Favor 

of BONY Because the 2012 Assignment of Mortgage was Recorded 

in Compliance with Section 695.11, Florida Statutes, and the 2005 

Mortgage Placed Presidential on Notice that Further Inquiry was 

Necessary to Determine the Existence of any Modifications

On appeal, Presidential raises four interrelated arguments.2 First, 

Presidential argues that a wild deed or assignment cannot constitute either 

2 Presidential does not challenge the findings of fact set forth in the final 

judgment, which were all drawn from the pretrial stipulation and the exhibits

contained in the record. Thus, despite the lack of a trial transcript, this court 

may review the trial court’s conclusions of law to determine whether any errors 

appear on the face of the final judgment. See Martin v. Martin, 43 So. 3d 195, 

196 (Fla. 4th DCA 2010) (“Where the record contains no transcript of the trial, 
4

actual or constructive notice to the public. Second, Presidential argues 

that indexing the recorded assignment of mortgage to First Bank was 

insufficient to provide notice where that name returns more than 2,000 

results—in other words, Presidential argues that the recorded assignment 

of mortgage was “misindexed,” which did not constitute actual or 

constructive notice so as to bind a subsequent bona fide purchaser for 

value. Third, Presidential contends that it is entitled to attorney’s fees for 

BONY’s failure to provide an estoppel letter required by statute. Fourth, 

Presidential asserts that the unrecorded terms of the mortgage 

modifications could not be incorporated by reference into the pre-existing 

2005 mortgage.

For the reasons set forth below, we reject Presidential’s arguments.

Analysis

A. Law on Notice

The recording statute in Florida is a “notice” statute. B.A. Mortg., LLC 

v. Baigorria, 300 So. 3d 198, 200 (Fla. 4th DCA 2020); § 695.01(1), Fla. 

Stat. (2012). Notice may take three forms: (1) actual notice; (2) implied 

notice; and (3) constructive notice. Baigorria, 300 So. 3d at 200. 

“Actual notice” means a party has “actual knowledge of the fact in 

question.” McCausland v. Davis, 204 So. 2d 334, 335 (Fla. 2d DCA 1967).

“Implied notice” means knowledge that is “inferred from the availability of 

a means of acquiring such knowledge when the party charged therewith 

had the duty of inquiry.” Id. “Constructive notice” means knowledge that 

is inferred “by operation of law, as under a recording statute.” Id. at 335–

36.

A party is a bona fide purchaser for value when: “(1) the purchaser 

obtained legal title to the challenged property, (2) the purchaser paid the 

value of the challenged property, and (3) the purchaser had no knowledge 

of the claimed interest against the challenged property at the time of the 

transaction.” Harkless v. Laubhan, 278 So. 3d 728, 733 (Fla. 2d DCA 

2019). By contrast, a party “with notice of a prior interest takes the 

property subject to that interest.” Baigorria, 300 So. 3d at 201.

an appellate court can address only errors that appear on the face of the final 

judgment.”). 
5

B. Wild Deed Argument

Presidential’s first argument is that a wild deed or assignment cannot 

constitute either actual or constructive notice to the public. However, the 

underlying basis of this argument is invalid because the assignment of 

mortgage in this case is not wild. 

“A wild deed is a purported instrument of conveyance executed by the 

named grantor knowing that he or she has no title of any kind to the 

property described therein.” Frazier v. Goszczynski, 161 So. 3d 542, 543 

(Fla. 5th DCA 2014). A wild deed can also refer to a “recorded deed that 

does not appear to be in the chain of title because a previous conveyance 

in the chain of title was either not recorded or not properly indexed.” Deed, 

Black’s Law Dictionary (11th ed. 2019). 

Here, the assignment of mortgage is not wild under either definition. 

The original mortgagee was MERS as nominee for First Bank. MERS 

assigned the mortgage to BONY in May 2012, and the assignment of 

mortgage was recorded in June 2012. Thus, the assignment of mortgage 

was in the chain of title and was made by a grantor with authority to assign 

the mortgage. 

C. Indexing Argument

Presidential’s main complaint is not with the recording of the 

assignment of mortgage, but rather with the indexing. Presidential 

complains that any search of the public records in Palm Beach County by 

the name First Bank would yield over 2,000 results and that “it is not 

reasonable to require a party to parse through over 2,000 records just to 

discover if there has been a potential assignment of a given mortgage.” 

Presidential’s argument is without merit. “All instruments which are 

authorized or required to be recorded in the office of the clerk of the circuit 

court . . . which are filed for recording . . . shall be deemed to have been 

officially accepted by the said officer, and officially recorded, at the time 

she or he affixed thereon the consecutive official register numbers . . . and 

at such time shall be notice to all persons.” § 695.11, Fla. Stat. (2012) 

(emphasis added). Assignments of mortgages are authorized to be 

recorded in the official records. § 28.222(3)(a), Fla. Stat. (2012). “The 

index shall be limited to grantor and grantee names, party names, date, 

book and page number, comments, and type of record.” § 28.2221(2), Fla. 

Stat. (2012). 
6

“[I]ndexing [i]s not an essential element of recording.” Mayfield v. First 

City Bank of Fla., 95 So. 3d 398, 402 (Fla. 1st DCA 2012). Priority is 

determined by section 695.11 and is not contingent upon indexing. Id. 

“[W]hen a party complies with the recording statute, constructive notice 

attaches and will not be destroyed by errors committed by the clerk.” Id. 

at 401. 

In this case, Presidential does not dispute that the assignment of 

mortgage was properly recorded. This is fatal to its argument. Priority is 

not contingent upon indexing. Any alleged “misindexing” of the recorded 

assignment of mortgage does not preclude constructive notice of the 

document. Because the recorded assignment of mortgage complied with 

the recording statute, constructive notice attached and will not be 

destroyed by purported errors in indexing.

Presidential’s reliance upon Oz v. Countrywide Home Loans, Inc., 953 

So. 2d 619 (Fla. 3d DCA 2007), and United States v. One Parcel of Real 

Estate, 715 F. Supp. 360 (S.D. Fla. 1989), is misplaced because those 

cases did not involve the requirements of recording an assignment of 

mortgage under section 695.11. Instead, the cases concerned whether a 

recording of a notice of lis pendens—which is governed by section 48.23, 

Florida Statutes—provided sufficient notice of the claims at issue. See Oz, 

953 So. 2d at 619 (affirming order dissolving lis pendens “because the lis 

pendens, which did not contain the date of the institution of an action and 

incorrectly listed the name of a defendant, did not provide constructive 

notice of Oz’s claims in violation of section 48.23, Florida Statutes”); One 

Parcel, 715 F. Supp. at 362–63 (holding that purchasers of real property 

without actual notice that the Government had filed a lis pendens against 

such property fell within the “innocent owners” exception to a federal 

forfeiture statute).

Because the assignment of mortgage was recorded in accordance with 

section 695.11, nothing more was required. The recorded assignment of 

mortgage provided constructive notice to the public, regardless of any 

alleged improper indexing.

D. Estoppel Letter Argument

Presidential next argues that BONY’s failure to provide an estoppel 

letter violated section 701.04, Florida Statutes (2019), entitling 

Presidential to attorney’s fees for having to resort to litigation to obtain the 

required estoppel amount. Because BONY was not a noticed assignee, the 

argument goes, Presidential’s (or its predecessor’s) request for an estoppel 

letter with respect to the 2005 mortgage was valid under section 701.04. 
7

Such argument is without merit, because BONY was the mortgagee and 

no estoppel request was ever sent to BONY. 

Section 701.04(1) states that, “[w]ithin 14 days after receipt of the 

written request of a mortgagor” or “a record title owner of the property,”

“the holder of a mortgage shall deliver or cause the servicer of the mortgage 

to deliver to the person making the request . . . an estoppel letter setting 

forth the unpaid balance of the loan secured by the mortgage.” § 

701.04(1), Fla. Stat. (2019). Subsection (2) states that “[i]n the case of a 

civil action arising out of this section, the prevailing party is entitled to 

attorney fees and costs.” § 701.04(2), Fla. Stat. (2019).

Here, BONY did not violate section 701.04 because no estoppel request 

was ever sent to BONY. First, as explained above, Presidential had 

constructive notice of the recorded assignment of mortgage to BONY. 

Second, the parties’ pretrial stipulation established that neither 

Presidential, nor its predecessor, inquired with BONY as to the status of 

the mortgage lien prior to taking title. Finally, Presidential did not 

introduce any written estoppel request into evidence at trial—in fact, 

Presidential offered no documents into evidence at all. In short, there is 

no record evidence that BONY received an estoppel request so as to trigger 

a duty under section 701.04 to provide an estoppel letter.

E. Unrecorded Modification Argument

Lastly, Presidential argues that the unrecorded terms of the mortgage 

modifications could not be incorporated by reference into the pre-existing 

2005 mortgage and were not enforceable against a bona fide purchaser for 

value who never had notice of those terms. To hold otherwise, Presidential 

contends, would allow a lienholder to demand arbitrary amounts from a 

third-party purchaser by relying on a purported unrecorded modification 

of the mortgage.

“[T]he law is clear that if a recorded mortgage is valid on its face, a 

subsequent purchaser is assumed to have recognized it as a valid lien 

against the property which he is buying.” CCM Pathfinder Palm Harbor 

Mgmt., LLC v. Unknown Heirs of Gendron, 198 So. 3d 3, 7 (Fla. 2d DCA 

2015) (internal quotation marks omitted). “Thus, a purchaser who takes 

title to property subject to a prior recorded mortgage is estopped from 

contesting the validity of the mortgage.” Id. (internal quotation marks 

omitted). 
8

To be sure, Presidential is correct that the doctrine of incorporation by 

reference is generally limited to documents that actually exist at the time 

of the incorporation. See, e.g., Gilbert St. Devs., LLC v. La Quinta Homes, 

LLC, 94 Cal. Rptr. 3d 918, 924 (Cal. Ct. App. 2009). As one judge put it: 

“Incorporation by reference pulls existing material into the new, 

incorporating contract; it does not push material terms into nonexistent, 

as-yet-unassented-to future contracts.” TD Auto Fin. LLC v. Reynolds, 842 

S.E.2d 783, 794–95 (W. Va. 2020) (Hutchison, J., concurring). 

However, the issue here is not whether the 2005 mortgage incorporated 

by reference the 2009 and 2015 modifications. Rather, the issue is 

whether the recorded mortgage, which stated that it would secure future 

modifications,3 placed prospective purchasers on notice to investigate 

whether such modifications had been executed. “If a person has 

information that would lead a reasonable man to make further inquiry for 

his own protection, but fails to further investigate and learn what the 

inquiry would reasonably have uncovered, the person must suffer the 

consequence of his neglect.” Flanigan’s Enters., Inc. v. Shoppes at 18th & 

Commercial, Inc., 954 So. 2d 758, 764 (Fla. 4th DCA 2007) (internal 

quotation marks omitted). 

Crucial to this case is whether the recorded mortgage contained 

information that triggered Presidential’s obligation to make further 

inquiry. In Starlines International Corp. v. Union Planters Bank, N.A., 976 

So. 2d 1172 (Fla. 4th DCA 2008), this court addressed whether a second 

promissory note’s “dragnet clause,” which purported to secure pre-existing 

debt, was enforceable against a subsequent purchaser of an interest in the 

property, where the recorded mortgage referenced the second promissory 

note but did not reference the first promissory note. We applied the 

following rule: 

As it relates to pre-existing debt, a dragnet clause will not be 

enforced against someone other than the borrower unless the 

dragnet clause specifically identifies the pre-existing debt to 

be included within its terms or unless it can be shown that 

the third party otherwise had notice that the specific preexisting debt at issue was to be included within the grasp of 

the dragnet clause.

3 Section 697.04(1)(a), Florida Statutes (2005), states that a mortgage on real 

property “may, and when so expressed therein shall, secure not only existing 

indebtedness, but also such future advances . . . as are made within 20 years 

from the date thereof . . . .”
9

Id. at 1176.

Although it was undisputed that the dragnet clause did not identify any 

specific pre-existing debt, we held that the purchaser “did have 

information from [the second promissory note] that there may be preexisting debt secured by the mortgage, and thus had a duty to inquire 

further.” Id. at 1177. However, we also noted that the purchaser “did not 

fail to investigate further,” as the purchaser “did inquire of [the borrower] 

as to the existence of pre-existing debt and received a negative response.” 

Id. Accordingly, we held that there was a genuine issue of material fact as 

to the sufficiency of the purchaser’s inquiry, and thus as to whether the 

purchaser was on implied actual notice that the first promissory note was 

secured by the mortgage. Id.

Here, the mortgage states that it secures “the repayment of the Loan, 

and all renewals, extensions and modifications of the Note[.]” Similar to 

the situation in Starlines, Presidential had information from the recorded 

mortgage that there may have been modifications of the note secured by 

the mortgage, and thus had a duty to inquire further. Unlike Starlines, 

however, there is no record evidence that Presidential investigated further.

Had Presidential undertaken an inquiry with BONY (or perhaps even the 

borrower) as to the status of the mortgage lien, such an inquiry would 

reasonably have uncovered the modifications. Thus, because Presidential 

had a duty to inquire as to any possible modifications to the loan and failed 

to do so, Presidential had implied notice of the modifications.

Conclusion

For these reasons, we affirm the final judgment.

Affirmed.

CONNER, C.J., and WARNER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.