DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FL HOMES 1 LLC and JOSE PEREZ,

Appellants,

v.

TOULA KOKOLIS, as Trustee of the TOULA KOKOLIS REVOCABLE 

TRUST dated July 2, 2014, and FL HOMES, LLC,

Appellees.

No. 4D18-2709

[May 15, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE 18-11249 

(11).

Michael Winer, Fort Lauderdale, for appellants.

Steven L. Wall of Mestdagh & Wall, P.A., Winter Park, for appellee, 

Toula Kokolis, as Trustee of the Toula Kokolis Revocable Trust dated July 

2, 2014.

GROSS, J.

Full of sound and fury, this foreclosure case is the tale of the legal chaos 

that can happen when a mortgage holder initiates a foreclosure action but

fails to include the sole record title holder as a party. We hold that a 

foreclosure judgment was void for the failure of the plaintiff to join the only

record title owner of the property; because the judgment was void, a lis 

pendens filed in that proceeding had no effect on unrecorded property 

interests whose holders did not intervene in the foreclosure action.

Florida Homes I LLC and Jose Perez appeal a summary final judgment 

of reforeclosure in favor of appellee Toula Kokolis, as trustee of the Toula 

Kokolis Revocable Trust. The property at issue in this case has been the 

subject of three separate foreclosure actions: (1) an action filed by a 

homeowners’ association; (2) the initial mortgage foreclosure lawsuit; and 

(3) the reforeclosure lawsuit.
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Before any litigation, the property was owned by non-parties to this 

appeal, John Keefer and Denise Derosa-Keefer, who borrowed money and 

executed a note and mortgage in favor of the original lender. After multiple 

assignments, the note and mortgage landed with Greenwich Investors 

XLIII Trust 2013-1.

The Homeowners’ Association Foreclosure Action

In 2012, Tall Pines Community Homeowners’ Association, Inc. (the 

“HOA”) initiated a lawsuit to foreclose the association’s lien against the 

property. A final judgment of foreclosure led to a foreclosure sale on 

October 25, 2012.

At that foreclosure sale, appellant Perez made the winning bid of 

$22,100. Instead of putting the certificate of title in his name, Perez 

instructed the Clerk of Court to issue the title in the name of “FL Homes 

LLC.” The certificate of title was subsequently issued in the name of FL 

Homes LLC on November 6, 2012.

At the time the certificate issued, Perez was unaware that an entity 

named FL Homes LLC already existed in Florida. Perez had absolutely no 

connection to that entity, so he had no authority to acquire property on its 

behalf. Perez chose the name FL Homes LLC believing that the name had 

not yet been taken. Not until he went to register FL Homes LLC, did Perez 

learn that a company with that name already existed.

On November 27, 2012, Perez registered a new entity named “FL Homes 

1 LLC.” Perez has never tried to retitle the property in the name of FL 

Homes 1 LLC. Perez took possession of the property, rented it out, and 

deposited rent checks in a bank account in the name of FL Homes 1 LLC. 

Perez also claims that he paid taxes and necessary fees associated with 

the property.

Initial Mortgage Foreclosure Action

Not surprisingly, after Keefer and Derosa-Keefer lost the property in the 

HOA foreclosure action, their mortgage loan was in default. On February 

8, 2013, a lawsuit to foreclose that mortgage was filed. Greenwich 

Investors was later substituted as the plaintiff. This foreclosure action 

named the HOA and the prior owners of the property, Keefer and DerosaKeefer, as defendants. The lawsuit did not name FL Homes LLC as a 

defendant, nor did it mention or seek to foreclose any interest in the 

property conveyed by the certificate of title in the HOA foreclosure action. 
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On February 14, 2013, a notice of lis pendens was recorded. After such 

recording, appellants did not seek to intervene in the lawsuit.

On December 16, 2014, a final judgment was entered against John 

Keefer, Denise Derosa-Keefer, and the HOA. A judicial sale was held in 

accordance with that final judgment on February 11, 2015. Greenwich 

Investors was the highest bidder at the judicial sale and a certificate of 

title for the property was issued to Greenwich Investors on February 24, 

2015.

On December 22, 2015, Greenwich conveyed the property to Toula 

Kokolis for $539,900. In 2016, Toula Kokolis conveyed the property by 

quitclaim deed to Toula Kokolis, as trustee of the Toula Kokolis Revocable 

Trust, the appellee here.

The Reforeclosure Lawsuit

On May 10, 2018, appellee filed the underlying action (the 

“reforeclosure lawsuit”) to foreclose the mortgage against the interests or 

potential interests of parties omitted from the initial mortgage foreclosure 

lawsuit. The reforeclosure lawsuit named FL Homes LLC, FL Homes 1 

LLC, and Perez as defendants. A notice of lis pendens was also recorded.

Appellants answered the complaint. FL Homes LLC also filed a 

response which stated, “FL Homes LLC claims no interest in this property 

and does not oppose the relief sought . . . .”

Appellee moved for summary judgment. Appellee argued that neither 

Perez nor FL Homes 1 LLC held any interest in the property. Appellee 

contended that any interest that existed by virtue of Perez’s winning bid at 

the HOA foreclosure sale was unrecorded at the time the lis pendens was 

filed in the initial mortgage foreclosure lawsuit, so that such unrecorded 

interests were discharged by section 48.23, Florida Statutes.

Appellants responded that the lis pendens, final judgment of 

foreclosure, and certificate of title issued in the initial mortgage foreclosure 

lawsuit were void ab initio due to Greenwich’s failure to name FL Homes 

LLC as a party in that lawsuit.

At the hearing on appellee’s motion for summary judgment, appellee 

acknowledged that appellants may have an interest in the property 

because, after the HOA foreclosure sale, Perez took possession of the 

property, rented it out, and collected rent. Appellee argued that because 

appellants’ interest was unrecorded, under the lis pendens statute, 
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appellants had thirty days from the date the lis pendens was filed to 

intervene in the initial mortgage foreclosure action. Appellee contended 

that appellants’ failure to intervene meant that the judicial sale in the 

initial mortgage foreclosure action “forever discharged” the property from 

all unrecorded interests and liens under section 48.23(1)(d), Florida 

Statutes (2017).

Appellants responded that because Greenwich failed to name Florida 

Homes LLC, an indispensable party, in the initial mortgage foreclosure 

action, both the lis pendens and final judgment were void.

The trial court ultimately found that the judgment was not “void for 

failure to name the indispensable party” and granted the summary final 

judgment of foreclosure.

The trial court entered a written final judgment of reforeclosure, which 

recognized that FL Homes LLC was the party named in the November 6, 

2012 Certificate of Title and was the only defendant who had an interest 

in the property recorded in the public records. The final judgment granted 

FL Homes LLC an opportunity to redeem the property and set the 

redemption amount at $728,789.46.

Discussion

The failure to include FL Homes LLC in the initial mortgage foreclosure 

action resulted in a void final judgment. FL Homes LLC held title to the 

property at the time the initial mortgage foreclosure action was filed. “The 

fee simple title holder is an indispensable party in an action to foreclose a 

mortgage on property.” Citibank, N.A. v. Villanueva, 174 So. 3d 612, 613 

(Fla. 4th DCA 2015) (citing Oakland Props. Corp. v. Hogan, 117 So. 846, 

848 (Fla. 1928) (stating that “[o]ne who holds the legal title to mortgaged 

property is not only necessary, but is an indispensable, party defendant 

in a suit to foreclose a mortgage.”)).

The failure to join FL Homes LLC rendered the entire foreclosure action 

void, so that the lis pendens filed in the initial foreclosure action cannot 

have had any legal effect. Under section 48.23, the nullifying impact of 

the lis pendens statute on unrecorded property interests turns on the 

prosecution of the lawsuit “to a judicial sale of the property.” § 48.23(1)(d), 

Fla. Stat. (2017). A void final judgment begets a void judicial sale. It was 

as if the lis pendens were discharged, so that the notice did “not affect the 

validity of any unrecorded interest or lien.” Id.
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In English v. Bankers Trust Co. of California, N.A., 895 So. 2d 1120 (Fla. 

4th DCA 2005), we wrote that the failure to join the fee simple owner in a 

foreclosure action rendered the foreclosure action void. There, the lender 

filed a foreclosure action against the original borrower, obtained a final 

judgment, and purchased the property at the foreclosure sale. Id. at 1121. 

Immediately thereafter, the lender learned that the borrower had conveyed 

the property to another before the foreclosure action, so it brought a 

second foreclosure action, naming both the original borrower and the new 

owner as defendants. Id. Summary judgment was entered for the lender. 

Id. 

On appeal, the original borrower sought to avoid a deficiency judgment 

by arguing that res judicata precluded her from being joined in the new 

action because of the prior action. Id. We affirmed the summary 

judgment, explaining that res judicata did not apply because the original 

judgment was void:

The trial court correctly concluded that the first action was 

void. Significantly, this is not a re-foreclosure to extinguish a 

junior lienor. Rather, this second action is an initial 

foreclosure as to the fee simple owner. Because Lesa 

Investments, the undisputed owner, was not a party to the 

first suit, the initial foreclosure judgment could not result in 

a valid sale, as the owner of the fee simple title was an 

indispensable party.

. . . .

We note that, more than a century ago, the Florida Supreme 

Court recognized that “a foreclosure proceeding resulting in a 

final decree and a sale of the mortgaged property, without the 

holder of the legal title being before the court will have no 

effect to transfer his title to the purchaser at said sale.” If the 

foreclosure proceeding has no effect to transfer title 

because the legal title holder has not been joined, it is 

simply another way of saying that the foreclosure 

proceeding is void.

Id. at 1121 (emphasis added) (internal citations omitted); see also

Villanueva, 174 So. 3d at 613-14.

That the initial foreclosure judgment was void for failure to join an 

indispensable party distinguishes this case from Epstein v. Bank of 

America, 162 So. 3d 159 (Fla. 4th DCA 2015). There, we rejected a bank’s 
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due process challenge to a final judgment where the bank was not 

asserting its own constitutional rights, but those of another. Id. at 162.

We observed that “constitutional rights are personal and may not be 

asserted vicariously.” Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 

610 (1973)). This case involves statutory rights under the lis pendens 

statute, not constitutional rights. Because the impact of the lis pendens 

upon appellants’ property rights depended upon the validity of the initial 

final judgment, appellants had standing to attack the final judgment as 

void.

Appellee argues that the final judgment in the initial mortgage 

foreclosure lawsuit was not void in its entirety and was ineffective only as 

to FL Homes LLC’s interest in the property. However, the cases cited by 

appellee are distinguishable because in those cases, at least one owner of 

the property was named in the foreclosure action and was properly 

foreclosed upon, while another owner was omitted from the action. See 

R.W. Holding Corp. v. R.I.W. Waterproofing & Decorating Co., Inc., 179 So. 

753 (Fla. 1938) (title owners for two of three parcels of land named in 

foreclosure action, but title owner of third parcel omitted); Key West Wharf 

& Coal Co. v. Porter, 58 So. 599 (Fla. 1912) (mortgagor named in 

foreclosure action, but not others whom the mortgagor had conveyed 

portions of the premises to); Sudhoff v. Fed. Nat’l Mortg. Ass’n, 942 So. 2d 

425 (Fla. 5th DCA 2006) (husband named in foreclosure lawsuit, but not 

wife). Thus, in cases where there are multiple owners of property, but one 

or more of the property owners is omitted, “a foreclosure suit may be 

maintained even though the holder of the legal title to the property is not 

a party to the foreclosure, but . . . the decree only establishes the rights of 

persons who are parties.” Pan Am. Bank of Miami v. City of Miami Beach, 

198 So. 2d 45, 47 (Fla. 3d DCA 1967).

Unlike the cases cited by appellee, in this case there was only one 

record title owner of the property at the time the initial mortgage 

foreclosure lawsuit was filed─FL Homes LLC. Therefore, consistent with 

this court’s precedent, the failure to name FL Homes LLC in the initial 

mortgage foreclosure lawsuit rendered the entire foreclosure action void. 

As the successor in interest to the original mortgage, appellee’s interest in 

the property is superior to that of appellants; our holding is that appellee 

may not rely on section 48.23 in a summary judgment to obtain a final 

judgment of foreclosure. 

We reverse the summary judgment of foreclosure and remand to the 

circuit court for further proceedings consistent with this opinion.

WARNER and FORST, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.