DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FALLON RAHIMA JALLALI,

Appellant,

v.

KNIGHTSBRIDGE VILLAGE HOMEOWNERS ASSOCIATION, INC.,

Appellee.

No. 4D15-2036

[June 29, 2016]

Appeal of a non-final order from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Michael Gates, Judge; L.T. Case No. 

CACE 12-009353 (12).

Cyrus A. Bischoff, Miami, for appellant.

Michael J. Villarosa of Kaye Bender Rembaum, P.L., Pompano Beach, 

for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We grant appellee’s motion for rehearing, withdraw our prior opinion, 

and substitute the following opinion in its place.

Fallon Rahima Jallali appeals a non-final order denying her motion to 

vacate the final judgment of foreclosure obtained by her property’s 

homeowners’ association, Knightsbridge Village Homeowners Association 

(“the Association”). Jallali asserted three reasons for reversal. We affirm 

as to all three, but write to distinguish U.S. Bank National Ass’n v. 

Quadomain Condominium Ass’n, 103 So. 3d 977 (Fla. 4th DCA 2012). We 

hold that the filing of a notice of lis pendens by a first mortgagee does not 

bar the foreclosure of an association’s subsequent lien for unpaid 

assessments against the owner, although that action is inferior to the 

foreclosure of the first mortgage, where the association’s subsequent lien 

was imposed under the association’s declaration of covenants recorded 

before the first mortgagee recorded its notice of lis pendens.
2

In 2007, the holder of the first mortgage on Jallali’s property (“the 

Lender”) filed a foreclosure action against Jallali and recorded its notice of 

lis pendens against the property. The Lender named the Association as a 

defendant.1 The Association’s Declaration of Covenants and Restrictions 

had been recorded in the public records prior to both the first mortgage 

and the notice of lis pendens.

In 2011, while the Lender’s action was still pending, the Association 

recorded a claim of lien for delinquent maintenance fees against the same 

property. In 2012, the Association sued Jallali to foreclose that lien and 

obtained a default final judgment, which this Court affirmed. See Jallali 

v. Knightsbridge Vill. Homeowners’ Ass’n, 185 So. 3d 1251 (Fla. 4th DCA 

2014). Subsequently, the Lender’s successor obtained a final judgment of 

foreclosure.2

After the mortgage foreclosure concluded, Jallali filed a motion under

Florida Rule of Civil Procedure 1.540(b)(4) to vacate the Association’s 2012 

final judgment of foreclosure. Jallali relied on Quadomain, 103 So. 3d at 

978-80, and section 48.23, Florida Statutes (2012). The trial court denied 

the motion and this appeal followed.

The question presented is whether the filing of the notice of lis pendens 

by the first mortgage holder constitutes a bar to the Association’s 

foreclosure action based upon a claim of lien for unpaid assessments filed 

after the notice of lis pendens. Because the Declaration of Covenants, 

which included provisions with respect to the Association’s right to lien 

and foreclose on the property, was a recorded “interest” at the time of the 

filing of lis pendens, we conclude that, even though the lien was inferior to 

the mortgage, section 48.23, Florida Statutes, constitutes no bar to the 

enforcement of the lien between the Association and Jallali.

A lis pendens serves two main purposes: (1) to give notice to and 

thereby protect any future purchasers or encumbrancers of the property; 

and (2) to protect the plaintiff from intervening liens. See Fischer v. 

Fischer, 873 So. 2d 534, 536 (Fla. 4th DCA 2004).

1 Before the Lender sued, the Association had obtained a judgment of foreclosure 

against Jallali’s property based on its lien for unpaid maintenance fees. The 

Lender alleged, and the Association acknowledged, that the Association’s lien was 

inferior to the Lender’s mortgage. The Association’s judgment was satisfied in 

2008 and is not relevant to this appeal.

2 This Court recently reversed that final judgment for lack of standing of the 

plaintiff at the time suit was filed. Jallali v. Christiana Tr., 184 So. 3d 559 (Fla. 

4th DCA 2016).
3

One of several purposes underlying the doctrine of lis 

pendens is that, when a suit is filed that could affect title in 

property, some notice should be given to future purchasers or 

encumbrancers of that property. DePass v. Chitty, 90 Fla. 77, 

105 So. 148 (1925). This serves the purposes of protecting 

those purchasers or encumbrancers from becoming embroiled 

in the dispute, and of protecting the plaintiff from intervening 

liens that could impair any property rights claimed and also 

from possible extinguishment of the plaintiff’s unrecorded 

equitable lien. In sum, unlike a typical injunction, a lis 

pendens exists as much to warn third parties as to protect the 

plaintiff; and the procedural requirements associated with lis 

pendens should advance both of these important purposes.

Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla. 1993) (footnote omitted).

Jallali relies on Quadomain as standing for the proposition that the 

association’s foreclosure against her is barred because the association did 

not comply with section 48.23, Florida Statutes. In Quadomain, the bank

holding a first mortgage on a condominium unit filed a foreclosure action, 

recorded a notice of lis pendens, and obtained a final judgment. 103 So. 

3d at 978. Because ownership of the unit had changed before the final 

judgment, the bank obtained leave to supplement its complaint to 

foreclose on the new owners. Id. It also filed a supplemental notice of lis 

pendens. Id. Thereafter, the association that managed the condominium 

recorded a claim of lien for unpaid fees against the bank, as the bank had 

obtained a certificate of title during the initial foreclosure. Id. The 

association filed a foreclosure action, obtained a default judgment against 

the bank, and the property was sold. Id. The bank moved to vacate, 

arguing the association’s lien foreclosure was barred, because it was filed 

after the bank filed its notice of lis pendens. Id. The trial court denied the 

motion and the bank appealed. Id.

The issue on appeal in Quadomain was whether the bank’s 

supplemental lis pendens divested the trial court of jurisdiction to 

adjudicate the association’s lien. Id. This Court quoted from section 

48.23, Florida Statutes. Id. at 979. That statute, last amended effective 

July 1, 2009,3 provides in part as follows:

3 Previously, language similar to that now appearing in section 48.23(1)(d) 

appeared in section 48.23(1)(b), but the period of time for intervening was only 

twenty days. § 48.23(1)(b), Fla. Stat. (2008).
4

(a) An action in any of the state or federal courts in this state 

operates as a lis pendens on any real or personal property involved 

therein or to be affected thereby only if a notice of lis pendens is 

recorded in the official records of the county where the property is 

located and such notice has not expired pursuant to subsection (2) 

or been withdrawn or discharged.

. . . .

(d) Except for the interest of persons in possession or easements of 

use, the recording of such notice of lis pendens, provided that 

during the pendency of the proceeding it has not expired pursuant 

to subsection (2) or been withdrawn or discharged, constitutes a 

bar to the enforcement against the property described in the 

notice of all interests and liens, including, but not limited to, 

federal tax liens and levies, unrecorded at the time of recording 

the notice unless the holder of any such unrecorded interest or 

lien intervenes in such proceedings within 30 days after the 

recording of the notice. If the holder of any such unrecorded 

interest or lien does not intervene in the proceedings and if such 

proceedings are prosecuted to a judicial sale of the property 

described in the notice, the property shall be forever discharged 

from all such unrecorded interests and liens. If the notice of lis 

pendens expires or is withdrawn or discharged, the expiration, 

withdrawal, or discharge of the notice does not affect the validity of 

any unrecorded interest or lien.

§ 48.23(1), Fla. Stat. (emphasis altered).

Based on that statute and similar cases, this Court concluded in 

Quadomain that the jurisdiction of the court conducting the mortgage 

foreclosure proceeding was exclusive:

[T]he only way to enforce a property interest that is unrecorded at 

the time the lis pendens is recorded is by timely intervening in the 

suit creating the lis pendens—all other actions are barred. 

Therefore, the court presiding over the action which created the lis 

pendens has exclusive jurisdiction to adjudicate any encumbrance 

or interest in the subject property from the date the lis pendens is 

recorded to the date it enters final judgment.

Accordingly, the court in the Association’s lien foreclosure action 

did not have jurisdiction to foreclose the lien. If the Association 

wanted to recover its unpaid Association fees, it was statutorily 
5

required to intervene in the re-foreclosure action as prescribed in 

section 48.23(1)(d).

Quadomain, 103 So. 3d at 979-80 (citations omitted).

In this case, Jallali relies on the language of Quadomain, suggesting 

that the final foreclosure judgment which the Association obtained in the 

2012 case was void, because the trial court lacked jurisdiction at that time. 

Jallali contends that exclusive jurisdiction to foreclose on the property was 

with the circuit court conducting the Lender’s foreclosure action in the 

2007 case.

The dicta of Quadomain does appear to preclude an association from 

filing a foreclosure action and lis pendens based on a lien filed after a 

lender with a superior interest has filed a foreclosure action and recorded 

a lis pendens. But the case is distinguishable on its facts for two reasons: 

(1) the association in Quadomain was attempting to foreclose its lien 

against the bank’s interest, as well as that of the homeowner, unlike the 

present case where the Association only foreclosed against the delinquent 

homeowner; and (2) the association’s lien in the present case was imposed 

under the association’s declaration of covenants recorded before the 

Lender recorded its notice of lis pendens.

Quadomain does not discuss whether an association’s declaration of 

covenants (or of condominium) constitutes an “interest” under section 

48.23(1)(d), Florida Statutes. We hold that such a declaration may qualify 

as an “interest.” Therefore, declarations which are recorded not only prior 

to the notice of lis pendens, but prior to the mortgage itself, may constitute 

a prior recorded interest under section 48.23(1)(d), Florida Statutes, such 

that the filing of a lis pendens does not automatically preclude an 

association from foreclosing on a lien imposed under the declaration, 

although the association’s foreclosure may be subordinate to the 

foreclosure of the mortgage.

This is reflected in section 720.3085, Florida Statutes (2015), which 

controls homeowners’ association liens and priority for unpaid 

assessments. The statute provides that the lien for unpaid assessments 

relates back to the recording of the declaration of community. 

§ 720.3085(1), Fla. Stat. However, as to determining superiority over first 

mortgages of record, the lien is effective only from the date the claim of lien 

is recorded:

When authorized by the governing documents, the association 

has a lien on each parcel to secure the payment of 
6

assessments and other amounts provided for by this section. 

Except as otherwise set forth in this section, the lien is 

effective from and shall relate back to the date on which the 

original declaration of the community was recorded. However, 

as to first mortgages of record, the lien is effective from and 

after recording of a claim of lien in the public records of the 

county in which the parcel is located.

Id.; see also § 718.116(5)(a), Fla. Stat. (2015) (providing similarly with 

regard to association assessments on condominiums).

The provisions of the Declaration of Covenants recorded by the 

Association operate as section 720.3085(1) contemplates. The Declaration 

provides for the assessment of fees by the Association for maintenance of 

the Association and its properties. It provides that when a lien is imposed 

for any unpaid fees, it relates back to the recording of the Declaration, 

except that the lien is subordinate to the lien of an institutional mortgage 

recorded prior to the time a notice of lien is recorded. Additionally, sale of 

the property pursuant to a foreclosure proceeding or deed in lieu of 

foreclosure by an institutional mortgagee extinguishes the lien for any 

assessments coming due prior to the sale or transfer.

Essentially, the Declaration serves as a lien to secure future 

assessments. Thus, it constitutes an “encumbrance or interest” for 

purposes of section 48.23(1)(d), Florida Statutes. Quadomain, 103 So. 3d 

at 979-80. Further, the filing dates of any liens incurred under the 

Declaration, including the lien at issue, relate back to the date of the 

Declaration’s recording. Because the Declaration was recorded prior to 

the Lender’s lis pendens, a foreclosure action based upon a claim of lien 

filed under its terms is not barred by section 48.23(1)(d).

This conclusion is not undermined by the Declaration’s exception to 

the relation-back provision with regard to first mortgages. This provision 

is relevant in determining priority of liens, rather than serving the notice 

purposes of section 48.23, Florida Statutes (with its bar to enforcement of 

unrecorded property interests by a separate suit). From the outset, the 

Association has acknowledged its lien is inferior to the mortgage; its lien 

foreclosure action does not purport to affect the Lender’s superior interest.

That a homeowners’ association can proceed against the homeowner 

with foreclosure of its lien for unpaid assessments, imposed under its 

declaration recorded before the first mortgagee recorded its notice of lis 

pendens, while a mortgage foreclosure proceeding is pending is further 

supported by section 720.3085(5)(b), Florida Statutes. Generally, a claim 
7

of lien cannot be foreclosed by a homeowners’ association without 

providing forty-five days’ notice to the homeowner. § 720.3085(5), Fla. 

Stat. However, the association need not provide such notice “if the parcel 

is subject to a foreclosure action or forced sale of another party[.]” 

§ 720.3085(5)(b), Fla. Stat. This implies that a claim of lien can be 

foreclosed even where a mortgage foreclosure proceeding is pending at the 

time the claim of lien is filed.

Moreover, we note that, in the context of this case, a lis pendens

recorded by a mortgage holder serves to protect the mortgage holder from 

liens unrecorded at the time of the filing. Although section 48.23(1)(d), 

Florida Statutes, creates a “bar to . . . enforcement” and provides for 

extinguishment of any unrecorded interests or liens if the case proceeds 

to judicial sale, the statute is not designed to protect the delinquent 

homeowner. Here, not only does the Association have a prior recorded 

interest through its Declaration of Covenants, its action was only against 

the delinquent homeowner. Unlike Quadomain, the Association’s suit 

did not involve the Lender. See Quadomain, 103 So. 3d at 978. 

Significantly, the Lender’s priority is not at issue here, and the Association 

acknowledges the Lender’s superior interest. Thus, the purposes of lis 

pendens and section 48.23(1)(d), Florida Statutes, are not served by 

allowing Jallali to assert these rights against the Association.

Accordingly, Quadomain does not control the outcome of this 

proceeding between the Association and the delinquent homeowner. A 

homeowners’ association has the right to proceed in a foreclosure of its 

lien for unpaid assessments against the homeowner in accordance with its 

declaration and the statutes governing such associations.

We affirm the order denying Jallali’s motion to vacate the final 

judgment.

Affirmed.

WARNER, GROSS and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.