FANNIE MAE
FANNIE MAE (MANNIE GARCIA)

Fannie Mae was on the losing end of another condo association battle for overdue fees on foreclosed property.

The Federal National Mortgage Association went up against Miami Beach’s Alden Hotel Condominium Association in a dispute over more than $100,000 in delinquent dues on a foreclosed unit.

Third District Court of Appeal Judges Kevin Emas, Vance Salter and Ivan Fernandez affirmed the decision by Miami-Dade Circuit Court Judge Spencer Eig and ruled for the condo association.

“That case on its face proves that safe harbor is an affirmative defense,” said PeytonBolin founding member Mauri Peyton, who represented the association. “Fannie Mae has to prove that it owns the mortgage. And if they don’t prove it, they don’t get the safe harbor.”

Fannie Mae took over the unit and sought protection under state law, which shields lenders who recover foreclosed property. State law requires new owners of foreclosed condos to pay all overdue maintenance fees. But a safe harbor rule allows lenders to pay a year’s worth of late fees, or 1 percent of the mortgage, whichever is less, when they reclaim foreclosed units. Citing that provision, Fannie Mae sought to pay Alden only about $25,000.

“It’s not just typical; it’s almost universal. My experience with Fannie Mae is they don’t pay anything until they’re ready to sell the unit, and then they won’t pay anything until they get the safe harbor,” said Peyton, who represented the association along with colleague Michael Mayer. “They knew they owed the safe harbor amount, which is about $25,000, but they refused to pay until the association agreed that was all they owed.”

The court’s opinion April 2 is one of two against Fannie Mae in recent months.

On May 28, Broward Circuit Judge Sandra Perlman ruled in favor of a Pompano Beach association when she denied Fannie Mae’s complaint for declaratory relief against Park Place. That case, like Alden’s victory, hinged on whether Fannie Mae could benefit from safe harbor that protects only first mortgage holders, their successors or assignees.

Defense attorneys in both cases successfully argued that while the federal mortgage corporation guarantees securities sold by lenders, it’s rarely legally assigned these mortgages. With Park Place, for instance, documents listed Countrywide Home Loans Inc., which was bought by Bank of America Corp., as the lender and the Mortgage Electronic Registration Systems Inc. document clearinghouse as the mortgagee.

While Fannie Mae bought the loan and retained Countrywide Home Loans Servicing LP to service it, documents showed that when it came to the mortgage, MERS assigned it to Countrywide’s successor, BAC Home Loans Servicing LP, not Fannie Mae.

“Fannie Mae argues that it is entitled to the benefits of the safe harbor provision because it took title of the condominium unit through a foreclosure as the first mortgagee,” Perlman wrote in a six-page decision dated May 28. “Contrary to this assertion, however, the summary judgment evidence reveals MERS, and not Fannie Mae, was the first mortgagee under the subject mortgage.”

The Third DCA judges reached a similar conclusion in the Alden appeal.

Brandon Thompson of Levine Kellogg Lehman Schneider & Grossman represented Fannie Mae. The national mortgage firm said its lawyers do not issue statements on its behalf, and a call for comment to Fannie Mae was not returned by deadline.

Meanwhile, at least two condo associations are celebrating their victories, which they say give condo associations recourse to regain delinquent fees.

“Fannie Mae is never in the chain of title,” Peyton said. “If you buy a car, regardless of who’s driving it, it’s very clear who holds the title.” In this case, the mortgages never went to Fannie Mae, and they never had title.