Magistrate Takes Under Advisement Town's Request to Foreclose $594,650 Lien on 80 Avenue E in Fort Myers Beach

A special magistrate hearing in Fort Myers Beach on a request to authorize foreclosure of a code-enforcement lien on 80 Avenue E ended with the magistrate taking the matter under advisement.

The town sought permission to file a foreclosure in circuit court on a lien recorded March 27, 2019, in code-enforcement case CE14-0394. Assistant Town Attorney Chloe Berryman told Special Magistrate Monica Schmucker the lien arose from long-standing violations dating to 2014 and that fines accrued at $250 per day. Berryman said affidavits and exhibit materials show a total due under the lien of $594,650 and that the statutory prerequisites in Florida Statutes section 162.09(3) had been met, so the town asked the magistrate to "enter an order authorizing the town attorney to foreclose the code-enforcement lien."

The respondent's attorney disputed the town's request and argued the town previously sought and obtained authorization to foreclose on a different recorded instrument. "The foreclosure request is invalid. It should be denied," counsel told the magistrate, citing appellate authority and asserting the doctrine of election of remedies or res judicata should bar the current request. Respondent counsel also introduced an affidavit from Jesse Schmidt and pointed to a $50,000 payment and a Beachfront Escapes check that, the defense contends, should reduce or offset the amount the town seeks to foreclose.

Berryman countered that the 2019 instrument before the magistrate is a separate recorded lien with a distinct recording date and legal basis from the earlier 2016 instrument; she cited Florida cases and statutory text to argue each lien ripens on its own recording and may be considered independently. The town presented a document timeline, minutes, email threads and partial releases to show the $50,000 payment released only a specific parcel (1560 I Street) from the umbrella lien and did not extinguish the lien recorded against 80 Avenue E.

Jesse Schmidt appeared in a recorded public-comment clip and in filings. In the clip Schmidt said he and his wife moved to Fort Myers Beach and "we would like to pledge that $50,000 towards his liens to get the blanket" off a particular parcel. Respondent counsel argued the town had not accounted for that pledge in the lien total and asked the magistrate to require the town to credit the payment if the foreclosure authorization were granted.

Magistrate Schmucker questioned both sides about the instruments at issue, the computation of daily accruals, the number of properties encumbered by the umbrella lien, and whether recorded partial releases or other checks covered some of the amounts claimed. The parties differed about how to apply partial releases pro rata and whether certain payments related to different property owners or business entities.

After reviewing exhibits and hearing arguments, the magistrate said she needed more time to examine the record. She invited the parties to exchange proposed orders and said she would accept proposed orders within one week and issue a written order with findings of fact and conclusions of law; at the opening she had also said she could issue an order today or within 15 days. The magistrate adjourned the hearing without issuing a ruling.

Next steps: Magistrate Schmucker will issue a written decision adopting findings of fact and conclusions of law after reviewing the submitted exhibits and proposed orders; if she authorizes foreclosure the town may file a circuit-court foreclosure action, and if she denies it the town or respondent may pursue any applicable appeals or further remedies described in the record.

Quotes used in this article are from hearing participants and the record: "We're here today on the town's request for authorization to foreclose a code enforcement lien on the property located at 80 Avenue E," Assistant Town Attorney Chloe Berryman said. Respondent counsel argued that "the foreclosure request is invalid. It should be denied." Special Magistrate Monica Schmucker said she would "review everything in greater detail" and invited proposed orders.