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Foreclosing on Property With a Mobile Home

February 3, 2021 Banking & Financial Services Industry Legal Blog

Reading Time: 10 minutes


In Florida, lenders may find themselves foreclosing on real property with a mobile home attached to the land. Initially, a mobile home is considered personal property (like a vehicle) and is titled by the Department of Motor Vehicles. However, a mobile home may be “retired” to the real property and become part of the real property. If the mobile home has been retired and is part of the real property, it will be included in the foreclosure. On the other hand, if the mobile home is not retired and the lender has a perfected lien on the mobile home, the lender must use replevin in addition to the foreclosure.

property foreclosure retired mobile home unretired mobile home replevin foreclosing on real property

Is the Mobile Home Retired?

In Florida, a mobile home is initially classified as a motor vehicle, i.e., personal property, and it must be registered with and titled by the Department of Motor Vehicles. Ark Real Estate Servs., Inc. v. 21st Mortg. Corp., 300 So. 3d 1210, 1213 (Fla 4th DCA 2020).

However, a mobile home may be “retired” to the real property, which results in the mobile home becoming part of the real property. A mobile home may be retired if it is “permanently affixed to real property owned by that same person.” § 319.261(1), Fla. Stat. A mobile home is “permanently affixed,” “if it is tied down and connected to the normal and usual utilities.” Greentree Servicing, LLC v. Decanio, 948 So. 2d 1033, 1034, 1036 (Fla. 5th DCA 2007) (finding the mobile home part of the real property because it was “permanently attached to the land by tie downs and ha[d] electricity running to it” and was “serviced by a water pump and septic system”).

If the mobile home is permanently affixed to the real property and the owner of the real property wishes to have the mobile home retired, the owner must record the following documents with the clerk of the court in the county in which the real property is located:

(a) The original title to the mobile home, which includes a description of the mobile home (model year, make, width, length, and vehicle identification number) and a statement by any recorded lienholder on the title that the security interest in the home has been released, or that such security interest will be released upon retirement of the title;
(b) The legal description of the real property, and if the owner has a leasehold interest, a copy of the lease agreement; and
(c) A sworn statement by the owner of the real property, as shown on the real property deed or lease, that he/she is the owner of the mobile home and that the mobile home is permanently affixed to the real property in accordance with state law. Fla. Stat. § 319.261(2).

When the clerk of the court receives the proper documents, the clerk will “record [the] documents against the real property and provide a copy of the recorded title to the owner of the real property with a copy of all the documents recorded.” Fla. Stat. § 319.261(3). The owner of the mobile home will then have to file an application with the Department of Motor Vehicles to have the title to the mobile home retired. The Department of Motor Vehicles will retire the title to the mobile vehicle and will notify the applicant that the title to the mobile home has been retired. Fla. Stat. § 319.261(4).

What to Do if the Mobile Home Is Retired

If the mobile home is retired, all personal property security interests in the mobile home no longer exist, and the mobile home will only be secured as part of the real property through a mortgage or deed of trust. Fla. Stat. § 319.261(7). In this case, the mobile home will become part of the foreclosure of the real property. Lenders should include a description of the mobile home in the legal description of the real property.

Foreclosures in Florida are judicial, meaning the secured creditor must file a lawsuit. Lenders must file a verified complaint, along with a certification that states it is in possession of the original promissory note. If the lender receives a foreclosure judgment from the court, the real property, including the mobile home, will be sold at public auction. In some circumstances, the lender may prefer to use Florida’s Fast-Track Residential Foreclosure Process, which allows lenders to bypass the lengthy foreclosure process and obtain a foreclosure judgment in less than six (6) months.

What To Do If The Mobile Home is Not Retired

If the mobile home is not retired, lenders will need to have a valid and enforceable personal property lien on the mobile home in order to recover the mobile home. Lenders will usually be faced with two situations: (1) the mobile home existed at the time of the mortgage, and is identified in the mortgage documents as collateral; or (2) the mobile home did not exist at the time of the mortgage, and is not identified in the mortgage documents as collateral.

(1) The Mobile Home Existed at the Time of the Mortgage and Is Identified as Collateral in the Mortgage Documents

If the mobile home existed on the real property at the time the mortgage was given and is identified  in the mortgage documents as collateral, the lender will still be required to perfect its lien on the mobile home in order to take possession of the mobile home. To perfect and enforce a security interest in a mobile home, lenders must file a sworn notice of such lien in the Department of Motor Vehicles, and the lien must be noted upon the certificate of title of the mobile home. The notice of lien shall provide the following information:

(a) The date of the lien, if the mortgage was executed prior to the filing of the notice of lien;
(b) The name and address of the registered owner;
(c) A description of the mobile home (model year, make, width, length, and vehicle identification number); and
(d) The name and address of the lender. Stat. § 319.27(2).

If the lender has perfected its lien on the mobile home, they can bring a replevin action pursuant to Chapter 78 of the Florida Statutes, in addition to the foreclosure of the real property. Replevin is a lawsuit seeking a judgment and a “writ of replevin,” to recover personal property that is wrongfully detained by another person. Fla. Stat. § 78.01.

Florida Rules of Civil Procedure, Form 1.937, is the proper form to bring a replevin complaint. The complaint is filed in in any county where the property is located, where the contract was signed, where the defendant resides, or where the cause of action accrued. Fla. Stat. § 78.032. The lawsuit must be brought in a court of competent jurisdiction based on the value of the mobile home (not the amount alleged that is unpaid on the loan). Fla. Stat. § 78.03. If the lender is successful in the lawsuit, the clerk of the court will issue a “writ of replevin,” which will allow the lender to take possession of the mobile home. A lender can also obtain a writ of replevin prior to final judgment, if the lender includes the following information in its complaint:

(a) A description of the mobile home that is sufficient to make possible its identification and a statement, to the best knowledge, information, and belief of the lender, of the value of the mobile home and its location;
(b) A statement that the lender is the owner of the mobile home or is entitled to possession of it, describing the source of such title or right. If the lender’s interest in the mobile property is based on a written instrument, a copy of such instrument must be attached to the complaint.
(c) A statement that the mobile home is wrongfully detained by the borrower, the means by which the borrower came into possession thereof, and the cause of such detention according to the best knowledge, information, and belief of the lender.
(d) A statement that the mobile home has not been taken for a tax, assessment, or fine pursuant to law.
(e) A statement that the mobile home has not been taken under an execution or attachment against the property of the lender or, if so taken, that it is by law exempt from such taking, setting forth a reference to the exemption law relied upon. Stat. § 78.055.

(2) The Mobile Home Did Not Exist at the Time of the Mortgage and Is Not Listed as Collateral in the Mortgage Documents

If the mobile home did not exist on the property at the time the mortgage was given and is not listed as collateral in the mortgage documents, the lender cannot include the mobile home in the foreclosure (because it is not retired), and cannot use replevin (because it does not have a perfected lien on the mobile home). If this is the case, the lender may wonder how it can foreclose on the real property if there is an unretired mobile home attached to the land. Luckily, a lender’s security interest in the real property is not impacted and the lender will still be able to proceed with foreclosure of the real property.

Oftentimes, another lender may have a valid and enforceable lien on the mobile home. Once the mobile home lender perfects its lien on the mobile home, it is not required to re-perfect its interest in the mobile home “in the event the mobile home subsequently becomes a fixture to the real property.” Ark Real Estate Servs., Inc, 300 So. 3d at 1214. Even if a mobile home is classified as “real property” for taxing purposes, “any mobile home classified by a lender as personal property at the time a security interest was granted continues to be classified for all purposes relating to the security interest as long as any part of the debt remains outstanding.” Id. Therefore, even if a mobile home becomes permanently affixed to the land, a foreclosure of the land on which it is attached does not impact valid security interests in the mobile home, nor does it impact the foreclosure.

For example, in the case Ark Real Estate Services, Inc., the purchaser of real property from a foreclosure sale sued a mobile home lender for repossessing a mobile home from the real property after the sale. The mobile home was anchored to the land and hooked up to utilities. Despite the mobile home being attached to the land, the lender of real property was able to foreclose on the real property, without the mobile home being removed from the land. In addition, the foreclosure did not impact the mobile home lender’s perfected security interest and the mobile home lender was still able to repossess the mobile home after the foreclosure sale.

Therefore, even if a mobile home was not retired to the land, or the lender does not have a perfected lien on the mobile home, the lender’s ability to foreclose on the real property will not be impacted. However, the lender will not be able to include the mobile home in the foreclosure. Whoever has a valid interest in the mobile home, will be able to remove the mobile home from the real property at any time.

Conclusion

In some parts of Florida, it is not uncommon for lenders to want to foreclose on real property that has a mobile home attached to the land. Depending on the circumstances, the lender may be able to include the mobile home in the foreclosure, or use replevin in addition to foreclosure. On the other hand, the lender may not have any rights to the mobile home, but may still proceed with foreclosure of the real property.

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