Third District Court of Appeal ()
A state appeals court on Wednesday nullified a decision that set up the auction of a luxury Fisher Island condominium to satisfy a default judgment in a lawyer’s favor.
The Third District Court of Appeal found Miami attorney Michael R. Band did not give proper notice to former client Crystal Springs Partners Ltd. that he was suing the British Virgin Islands company for $90,000 in unpaid legal fees.
Band represented the company in a foreclosure action on the condo unit at 5053 Fisher Island Drive. The mortgage was satisfied, and the foreclosure averted.
Hollywood attorney Keith Diamond represented Crystal Springs, owned by Jomart Kamenov.
Miami-Dade Circuit Judge Jorge E. Cueto entered a $93,981 default judgment in December 2012 against Crystal Springs when it didn’t respond to Band’s lawsuit. His attorneys then auctioned the condo at one time valued at $1.8 million for $300,000 in June to satisfy the judgment.
Diamond said an attorney who happened to be attending the auction emailed Kamenov alerting him that his property had sold.
“He saw there was something wrong,” Diamond said. “Anybody seeing a multimillion-dollar property sold to satisfy a $100,000 judgment would.”
Cueto rejected an emergency motion by Crystal Springs to quash service of process, vacate and set aside the default judgment, writ of execution, and property sale in December 2012.
Third District Judges Vance E. Salter, Kevin Emas and Ivan F. Fernandez found the company simply was not notified properly of the lawsuit.
Salter, writing for the unanimous panel, said Band was obligated to make an “honest and conscientious effort,” using knowledge at his command, to provide the defendant with actual notice of the lawsuit.
Reached in court, Band said he was unfamiliar with the decision and did not have an immediate comment.
The case was remanded, and the court gave Crystal Springs 20 days to file a response.
Band pursued substituted service by forwarding a copy of the process to the secretary of state’s office in Tallahassee. State law then requires notice of service on the secretary of state and a copy of the process to be sent by registered or certified mail to the defendant “forthwith.” The appellate decision noted the certified letter and copies were sent 42 days later.
“That is not ‘forthwith’ as we and other courts have interpreted the term,” Salter wrote.
Diamond said Band notified the company of the lawsuit by sending documents to the empty Fisher Island knowing Kamenov lived in Russia because they had meetings in that country.
“They proceeded to get a judgment because they were sending everything to an empty Fisher Island condominium,” Diamond said.
The certified mail was returned undelivered, he said.
The Third District decision wiped out the sale, which had been stayed, and put the case on track for trial, Diamond said.
Band, reached by phone Wednesday, said he was unfamiliar with the decision and referred questions to his attorney, Omar Ortega, a partner at Dorta & Ortega in Coral Gables.
“Michael did everything he was required to do under the law in terms of notifying the defendant,” Ortega said. “We are dealing with an individual and a company who obtained services, legal representation, from a reputable member of the Bar and didn’t want to pay for it.”
He said the company will now have to respond in court.
“All they did was push back a judgment that will be coming against them,” Ortega said. “Come hell or high water, it’s going to happen.”
Legal fees, in the meantime, are increasing against the defendant, he noted.