author: MONACO, J.

text:
    GREENTREE SERVICING, LLC, etc., Appellant, v. Michael J. DECANIO, et al., Appellee.
    No. 5D06-1280.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.

      Elizabeth T. Frau, of Echevarria, Codilis & Stawiarski, Tampa, for Appellant.
    Dock A. Blanchard, of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.
   MONACO, J.

This appeal concerns the effect of a tax deed on a security interest in a mobile home that is placed on the real property that was the subject of the deed. The appellant, Greentree Servicing, LLC, has a security interest in the mobile home. The appellee, Marvin Grossman, purchased the tax deed. The trial court granted a summary judgment in favor of Mr. Grossman because the mobile home had become a part of the real property and because Greentree failed to take the available steps to protect its interest.

In the year 2000, Greentree’s predecessor in interest loaned Michael J. Decanio and Helen N. Buran funds to purchase a mobile home. As security for its loan, Greentree received back an installment loan contract and security agreement. Greentree’s interest was thereafter noted as a first lien on the certificate of title issued by the Department of Motor Vehicles to Mr. Decanio and Ms. Buran.

The mobile home was placed on a parcel of land purchased by Mr. Decanio a few months before he and Ms. Buran received their loan from Greentree. According to the summary final judgment rendered in this case, there was “no dispute that the mobile home at issue is connected to normal and usual utilities and is tied down.” The affidavits filed in support of summary judgment indicate that the mobile home is permanently attached to the land by tie downs and has electricity running to it. In addition, the home is serviced by a water pump and septic system. In 2002, Mr. Decanio applied for and was granted homestead status on his property pursuant to section 196.031, Florida Statutes (2002), strongly suggesting that the mobile home was to be treated as part of the realty. In addition, the license plate for the mobile home was removed, and permanent RP stickers were issued and attached to the improvement.

Because real property taxes were not paid on the Decanio parcel, tax sale certificates were issued and sold to Mr. Gross-man in accordance with section 197.432, Florida Statutes (2002). Mr. Grossman paid $38,200 to the County, and acquired the title to the parcel by tax deed. See § 197.502, Fla. Stat. (2004). In 2003, the Marion County Property Appraiser had assessed the Deeanio parcel at $61,379, before deduction of the $25,000 homestead exemption. The assessment valued the land at $5,778, and the “Buildings” at $53,671. The remainder of the assessment was assigned to “miscellaneous.”

In 2004, Greentree brought suit against Mr. Deeanio and Ms. Buran for replevin of the mobile home on which it held a lien. Ms. Buran had, however, apparently died in the interim. Mr. Grossman learned of the suit and was granted authority to intervene by the court. He then cross-claimed for declaratory relief against Greentree and to seek to quiet his title in the parcel. Specifically, Mr. Grossman sought to be declared the fee simple owner of the land, as improved by the mobile home, and sought to cancel the Greentree lien as a cloud on his title.

Affidavits and discovery were properly filed with the court, and both sides moved for summary judgment. The trial court granted summary judgment in favor of Mr. Grossman, holding that the mobile home had become affixed to the land and was part of the realty. Although Green-tree argued that it had not received proper notice prior to issuance of the tax deed, the trial court rejected its position, finding that because it had not taken the statutory steps to protect itself, it was not entitled to notice of the issuance of the deed. We affirm.

The legislature has provided guidance on how mobile homes are to be taxed. Sections 193.075(1) and (2), Florida Statutes (2004), state:

(1) A mobile home shall be taxed as real property if the owner of the mobile home is also the owner of the land on which the mobile home is permanently affixed. A mobile home shall be considered permanently affixed if it is tied down and connected to the normal and usual utilities.... A mobile home that is taxed as real property shall be issued an “RP” series sticker as provided in s. 320.0815.
(2) A mobile home that is not taxed as real property shall have a current license plate properly affixed as provided in s. 320.08(11). Any such mobile home without a current license plate properly affixed shall be presumed to be tangible personal property.

Section 320.015, Florida Statutes (2004), also addresses whether a mobile home is to be considered real or personal property and does so in a language similar to that found in section 193.075. Section 320.015 reads in pertinent part:

(1) A mobile home, as defined in s. 320.01(2), regardless of its actual use, shall be subject only to a license tax unless classified and taxed as real property. A mobile home is to be considered real property only when the owner of the mobile home is also the owner of the land on which the mobile home is situated and said mobile home is permanently affixed thereto. Any prefabricated or modular housing unit or portion thereof not manufactured upon an integral chassis or undercarriage for travel over the highways shall be taxed as real property once it is permanently affixed to real property ...
(2) Notwithstanding the provisions of subsection (1), any mobile home classified by a seller or a lender as personal property at the time a security interest was granted therein to secure an obligation shall continue to be so classified for all purposes relating to the loan and security interest, at least as long as any part of such obligation, or any extension or renewal thereof, remains outstanding. Classification of a mobile home as personal property by a seller or a lender shall not prohibit the owner from having the mobile home classified and taxed as real property under subsection (1).

[Emphasis added].

Here, it is quite clear, as the trial court noted, that the mobile home was tied down and connected to normal and usual utilities. Moreover, as specified in section 193.075, it had no license plate attached to it, and had “RP” series stickers properly placed on it. Thus, the part of the statutory equation requiring the mobile home to be permanently affixed to the real property is rather obvious in this case.

In General Electric Capital Corp. v. Sohn, 566 So.2d 841 (Fla. 1st DCA 1990), a ease quite similar to the present controversy, the First District affirmed a trial court’s determination that a tax deed issued with respect to a parcel of land on which was located a mobile home extinguished an otherwise valid security interest held by a creditor. Once the owner permanently affixed the mobile home to his lot in accordance with section 320.015, it became subject to real property tax treatment.

In Sohn, however, the owner of the land and the owner of the mobile home was the same individual. The one question remaining with respect to the issue of whether the mobile home is to be treated as part of the real estate for real property tax purposes in the present case is whether the “owner of the mobile home is also the owner of the land on which the mobile home is permanently affixed.” Both pertinent statutes make reference to this requirement. In the case before us, Mr. Decanio owned the land individually, but Mr. Decanio and the now deceased Ms. Buran owned the mobile home. We conclude, however, that the ownership requirements of the statutes are nevertheless satisfied.

The case of Mikos v. King’s Gate Club, Inc., 426 So.2d 74 (Fla. 2d DCA 1983), is instructive in this regard. There, the ap-pellee corporation owned a fee simple interest in a mobile home park, and “members” of the community paid membership and maintenance fees in exchange for a site on which to locate a mobile home. Each member held a certificate that stated that members do not hold an interest in the land. Nevertheless, members had the right to sell their certificates to third parties, subject to right of first refusal of the corporation. The corporation advertised the park as an “ownership park,” meaning that in the event that the corporation dissolved, the corporation’s assets would be divided among the members holding certificates. Mobile homes in the park were tied down to cement pads and the wheels, axles, springs, and tires were removed.

The corporation and members filed suit to enjoin the county property appraiser from taxing the mobile homes as real property. Though the trial court concluded that the mobile homes were part of the real property because they were permanently affixed to the land, it found that the members were not “owners” for purposes of section 320.015, and that consequently the mobile homes could not be taxed as real property. The Second District reversed and held that although the members did not hold legal title to the land on which their mobile homes were located in the strictest sense of the term, the concept of “owner” was not to be so narrowly defined as to include only legal titleholders. The court concluded that the members held the land “by equitable title ... indirectly by ... membership representing the ... member’s proprietary interest in a corporation owning a fee.” Id. at 76 (citing 1975 Op. Atty. Gen. 075-159 (June 3, 1975)). Thus, the mobile homes could be taxed as real property because the homes were permanently affixed to the land and “each member has practical dominion over his designated site which is essentially equivalent to ownership.” Id.

In Nordbeck v. Wilkinson, 529 So.2d 360 (Fla. 2d DCA 1988), the Second District came to a similar outcome where the taxpayer again asserted that he was not the owner of the land upon which the mobile home was affixed because he owned only a membership certificate in a corporation that held legal title to the land. The appellate court, citing Mikos, again held that he was the “owner of that land for present purposes.” Id. at 361.

Here, Mr. Decanio was an owner of the mobile home and was the sole owner of the real estate upon which it was affixed. We think he had at the very least “practical dominion” over the land and mobile home. As section 320.015(2) points out, Mr. Decanio could choose to have the mobile home treated as part of the real estate and the fact that he and Ms. Buran gave a security interest in the mobile home to Greentree would not “prohibit the owner from having the mobile home classified and taxed as real property.” Thus, we agree with the trial court that the parcel, as improved, was properly classified and taxed as real property, and that it was, therefore, subject to the tax certificate and tax deed procedures articulated in Chapter 193.

We agree, as well, that Greentree was not entitled to notice of the tax deed process. Greentree asserts that it was denied due process because it was not given notice of the tax deed sale, even though it had a valid and reasonably identifiable security interest in the mobile home. Greentree centers its argument on section 197.522, Florida Statutes (2004). Mr. Grossman contends, and we agree, that Greentree did not take the required statutory steps to put the tax assessor or clerk on notice of its interest, and that these county officials were not required to use exhaustive measures to find any and all interested parties prior to a tax sale.

Section 197.522(l)(a) provides that:

The clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed in the tax collector’s statement pursuant to s. 197.502(4.) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector’s statement, then no notice shall be required.

[Emphasis added]. The next subsection of the statute requires the sheriff of the county in which the property at interest is located to serve a notice of the tax sale to the legal titleholder at least 20 days prior to the sale. Section 197.502(4), Florida Statutes (2004), the statute referenced in section 197.522(l)(a), lists the parties entitled to notice of a tax sale. Those parties are described in relevant part as: .

(a) Any legal titleholder of record if the address of the owner appears on the record of conveyance of the lands to the owner. However, if the legal titleholder of record is the same as the person to whom the property was assessed on the tax roll for the year in which the property was last assessed, then the notice may only be mailed to the address of the legal titleholder as it appears on the latest assessment roll.
(b) Any lienholder of record who has recorded a lien against the property described in the tax certifícate if an address appears on the recorded lien.
(c) Any mortgagee of record if an address appears on the recorded mortgage.
(e) Any other lienholder who has applied to the tax collector to receive notice if an address is supplied to the collector by such lienholder.
(g) Any lienholder of record who has recorded a lien against a mobile home located on the property described in the tax certificate if an address appears on the recorded lien and if the lien is recorded with the clerk of the circuit court in the county where the mobile home is located.

The Florida Supreme Court construed section 197.502(4) in Dawson v. Saada, 608 So.2d 806 (Fla.1992). In that case the high court held that the “legislature has the authority to determine the extent and character of notice” required to be provided prior to the sale of land for nonpayment of taxes. Id. at 808. The relevant issue is whether the clerk complies with the notice requirements of section 197.522, not whether the notice is actually received. The court held further that “the failure of anyone to receive notice as provided in section 197.522(1) does not affect the validity of the tax deed” so long as the notice requirements of the statute were followed. Id. at 808.

Greentree was required to be notified of the tax sale if it fit within one of the lienholder categories listed in section 197.502(4). Although Greentree is listed as the first lienholder on the certificate of title to the mobile home, it brought forth no evidence during the summary judgment process that it recorded its lien in accordance with subsections (4)(b) or (g) of the statute, or that it requested notice of a tax sale in accordance with subsection (4)(e). Although Greentree argues that it should have received notice because its interest was readily ascertainable by a search of the records of the Department of Motor Vehicles, we have previously held that “the clerk is not required to search all public records available to determine the actual status of ownership.” Hutchinson Island Realty, Inc. v. Babcock Ventures, Inc., 867 So.2d 528, 531 (Fla. 5th DCA), review denied, 892 So.2d 1012 (Fla.2004). The clerk did exactly what was required by the statute. As Greentree failed to take the steps necessary for it to obtain notice of the statutory issuance of a tax deed, its assertion of a due process violation is ineffective. Compare Rosado v. Vosilla, 909 So.2d 505 (Fla. 5th DCA 2005), affirmed, 944 So.2d 289 (Fla.2006)(relief granted where the failure of the owners of real property to receive the notice of sale was entirely the fault of the taxing agencies).

AFFIRMED.

PLEUS, C.J. and SAWAYA, J„ concur.

      . This court upheld the constitutionality of section 193.075 against an equal protection challenge in Zapo v. Gilreath, 779 So.2d 651 (Fla. 5th DCA 2001).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas A. LEE, III, Louise Mack and Louie Hampton, et al., v. Howard J. SHAW, John R. Shaw, Jr., et al., Appellants,
    No. 5D06-1046.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.

      Robert W. Bauer, of Clayton-Johnston, P.A., Gainesville, for Appellant.
    John R. Stiefel, Jr., and Bethany Ray Reichard, of Holbrook, Akel, Cold, Stiefel & Ray, P.A., Jacksonville, for Appellee.
   PER CURIAM.

We are bound to agree with appellants that the affidavit offered in support of the motion for summary judgment was insufficient for the trial court to determine the legal and factual issues contained in the judgment, including the conclusion that the property at issue is not subject to partition.

On this record, we express no opinion concerning whether the property is subject to partition in whole or in part. Nor can we conclude on this record whether the appointment of a commission is required.

REVERSED and REMANDED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


text:
    John DISMUKE, Appellant, v. OFFICE OF the STATE ATTORNEY, Ninth, etc., Appellee.
    No. 5D06-2236.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    John Dismuke, Chatahoochee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Dismuke filed a writ of replevin seeking the return of three items of jewelry allegedly taken from him after his arrest on violation of probation charges. The trial court treated Dismuke’s writ of replevin as a motion for return of property. The trial court properly dismissed Dismuke’s motion because of its failure to allege that the jewelry was not the fruit of criminal activity. Scott v. State, 922 So.2d 1024, 1026 (Fla. 5th DCA 2006).

We find this order is an appealable interlocutory order because it determined the right to immediate possession of property. Fla. R.App. P. 9.130(a)(3)(C)(ii); see also Eight Hundred, Inc. v. State, 781 So.2d 1187 (Fla. 5th DCA 2001). The trial court’s dismissal of Dismuke’s motion was without prejudice. Therefore, we affirm the trial court’s decision. Such affirmance is without prejudice to Dismuke filing an amended motion in the circuit court.

AFFIRMED.

PLEUS, C.J., SAWAYA and EVANDER, JJ., concur.


text:
    Dean A. RUDD, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2341.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    Dean A. Rudd, Raiford, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the denial of Dean A. Rudd’s petition for writ of habeas corpus as he has shown no entitlement to immediate release. However, our review of the record revealed a clerical error in the sentencing documents. The plea and sentencing transcript clearly reflect that Rudd pled guilty or nolo contendere to six cases then pending in Marion County circuit court. However, the court minutes and sentencing documents erroneously reflect that Rudd entered a plea of guilty or nolo contendere to a seventh case, case no. 42-2004-CF2014, which was also pending against Rudd but was not before the court for disposition. The transcript of the proceedings clearly indicates that Rudd entered no dispositive plea to that case and, therefore, the court had no jurisdiction to enter the judgment and sentence on that case.

In our view, the most expedient manner with which to handle this matter is to vacate the judgment and sentence in Marion County circuit court case no. 42-2004-CF2014. On remand, the State may proceed against Rudd on that case if it so chooses.

AFFIRMED AND REMANDED FOR CORRECTION OF CLERICAL ERROR.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


text:
    HOLDEN COVE, INC., Ronald Black, et al., Petitioners, v. 4 MAC HOLDINGS, INC., Respondent.
    No. 5D07-2.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    Glen J. Ioffredo of Law Offices of Glen J. Ioffredo, P.A., Maitland, for Petitioners Ronald and Elizabeth Black.
    Marc P. Ossinsky of Ossinsky & Cath-cart, P.A., Winter Park, for Petitioners Holden Cove, Inc., and Patricia and Anthony Abraham.
    No Appearance for Respondent.
   PER CURIAM.

Petitioners seek review of an order granting partial summary judgment on the issue of liability in favor of respondent (plaintiff below). We are unable to address the merits of petitioners’ argument. Certiorari review is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule, which authorizes an appeal from only a few types of non-final orders. Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla.1998). It is settled law that, as a condition precedent to invoking this court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal. Jaye, 720 So.2d at 215. An order granting partial summary judgment on the issue of liability is not reviewable because the issue can be raised on direct appeal of the final judgment. Chase Fed. Bank v. Kim, 604 So.2d 909 (Fla. 5th DCA 1992).

The individual petitioners also contend the trial court’s order causes irreparable harm because they are now subject to discovery requests regarding their private finances. We reject this argument as premature and speculative.

Petition for Writ of Certiorari DENIED.

GRIFFIN, MONACO, and EVANDER, JJ., concur.


author: VILLANTI, Judge.

text:
    Paul Roy DEAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2983.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2007.

      Brooke V. Elvington and Leslie M. Sam-mis of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Paul Roy Dean appeals the revocation of his probation, claiming the State failed to prove by the greater weight of the evidence that he willfully and substantially violated conditions 15 and 27. We agree and reverse for the reasons discussed below.

On May 27, 2004, Dean was convicted of driving under the influence involving serious bodily injury and placed on five year's’ probation. By amended affidavit filed on August 17, 2005, Dean was charged with violating conditions 15 and 27 of his probation. The condition 27 violation related to Dean’s failure to perform 150 community service hours at the rate of five hours per month. The State rightfully concedes error on this point. There was no starting or ending date specified in the probation order as well as no evidence of Dean’s refusal to perform. See Pollard v. State, 930 So.2d 854, 855 (Fla. 2d DCA 2006) (citing Shipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005)) (“[T]he State cannot prove a willful and substantial violation of a condition to complete community service hours, even when the order contains a per-month rate of completion, when the order does not contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours at the required rate.”). We have previously suggested a manner in which to rectify this type of deficiency in a probation order and why it is important to do so.

The condition 15 violation related to prohibitions against alcoholic beverage consumption and visiting businesses whose main source of income is from the service of alcoholic beverages. Although the amended affidavit alleged Dean violated condition 15 in both alternative ways, no evidence whatsoever was presented as to the latter provision. Rather, at the violation hearing, the State relied exclusively on the testimony of Carolyn Upshaw, a probation office supervisor, and Sandra Lugo, the program manager of Interlock Systems of Florida. Interlock Systems of Florida had installed and maintained an interlocking device in Dean’s car. Dean was required to blow into this device prior to starting his vehicle and at random times during the operation of the vehicle. The device was designed to detect whether Dean had consumed alcohol.

From notes in Dean’s probation file, Ms. Upshaw testified that on several afternoons and early evenings, Dean’s device registered positive readings. Significantly, none of the referenced records were introduced into evidence; nor did Dean’s probation officer testify. Ms. Lugo explained pertinent aspects of the interlocking device in general. Apparently, if an unsatisfactory level of alcohol is detected in the breath sample required to start the vehicle, the ignition will “lock up.” The test readings are downloaded by the company, and the probationer is then required to providé this information in conjunction with his monthly reports to- his probation officer. Ms. Lugo testified in rebuttal that the company’s records did not indicate any instrument malfunction. She further testified that “mouth alcohol” would register false positive readings based upon nonalcoholic beverages, including food. The State did not introduce any business records through this witness.

After his motion for judgment of acquittal was denied, Dean testified that he reported several failures of the interlocking device to the company and that the device was replaced on one occasion. Dean also testified that he had not consumed any alcoholic beverages since being placed on probation and that he passed every bimonthly urinalysis performed by probation personnel. Dean further testified that during several consensual random searches of his home, his probation officer found no alcohol. The State introduced no records or evidence to the contrary.

Finally, Dean’s supervisor at his employment testified. The supervisor corroborated Dean’s testimony, at least in part, that on two days after work he loaned Dean his cell phone to report the device’s malfunctions and to call for a tow truck. He also read the device’s message during these “lock ups” but could not recall the exact verbiage on the display. The supervisor further stated that he never observed Dean under the influence of alcohol or drugs — that it was “part of [his] training ... [to] continually examine [employees]” and anyone suspected of using drugs or alcohol was immediately sent for testing.

Following the close of all evidence, the trial judge remarked to Dean’s attorney, “[Q]uite frankly, Miss Athan, I don’t believe your client.” However, shortly after this remark, Miss Athan argued, “[T]here’s nothing in this record, nothing in this record other than hearsay that substantiates the allegations ... a violation of probation cannot be supported strictly on hearsay.” The trial judge responded, “I agree with you. I agree,” but the trial judge then went on to ask, “What about his community service work?” Thereafter, the trial court found Dean guilty and sentenced him to sixty months in prison. Additionally, the order of revocation entered is subject to some interpretation because it does not specify whether Dean was convicted of violating one or both conditions charged. The order provides only that the “defendant has not properly conducted himself and violated the conditions of Probation in a material respect by VIOL COND, CONDITION(S) NOT STATED, ADJ. GUILTY, 60 MONTHS FSP W/CREDIT.” Because the State agrees that the evidence was legally insufficient as to condition 27, and this is a correct statement of thé law, we need analyze only the sufficiency of the evidence as it relates to condition 15.

The State has “the burden of proving by the greater weight of the evidence that a probationer has willfully and substantially violated probation.” Hines v. State, 789 So.2d 1085, 1086 (Fla. 2d DCA 2001). There is no question that the State may present hearsay testimony and that the trial court may consider it in making this determination; however, a revocation of probation finding cannot be sustained based solely upon hearsay testimony. See, e.g., Robinson v. State, 744 So.2d 1188, 1189 (Fla. 2d DCA 1999); see also DeJesus v. State, 848 So.2d 1276, 1278 (Fla. 2d DCA 2003). Here, because no business records were introduced, the State’s proof consisted solely of testimony from two witnesses — Ms. Upshaw and Ms. Lugo. Neither of these witnesses had any personal knowledge of any of the facts necessary to support a finding that Dean willfully and substantially violated condition 15. Each witness’s testimony emanated exclusively from her review of business records contained in the probation file or a corporate file, the contents of which were garnered from information supplied by nontestifying sources. Without any of these records being introduced into evidence, there was no direct evidence regarding Dean’s alleged alcohol consumption. In fact, the only direct evidence presented was to the exact contrary — that Dean had not consumed any alcohol. Obviously, a defendant’s testimony may be considered in determining whether the greater weight of the evidence supports a revocation. See Hines, 789 So.2d at 1086. However, under the facts of this case, even though the trial court may not have believed Dean, his testimony did not otherwise further the State’s theory or burden of proof. Moreover, a positive (Dean used alcohol) may not be inferred from a negative (Dean denied using alcohol). Thus, “[standing alone, this pure hearsay was insufficient.” Bales v. State, 793 So.2d 87, 88 (Fla. 2d DCA 2001). Because the State failed to prove that Dean willfully and substantially violated his probation, we reverse the order revoking his probation and remand for Dean’s reinstatement on probation.

Reversed and remanded for reinstatement of Dean’s probation.

DAVIS and LaROSE, JJ., Concur.

      . "In the future, trial judges imposing a per-month hour requirement for community service might announce the condition more clearly by specifying a beginning and ending date for completing the hours.” Bowser v. State, 937 So.2d 1270, 1273 (Fla. 2d DCA 2006). Otherwise, "the State is limited in its ability to prove a willful and substantial violation....” Id. Further, “it may be wise to update the probation forms....” Id.


author: LaROSE, Judge.

text:
    Cedric BLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4079.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2007.
   LaROSE, Judge.

Cedric Blair appeals the summary dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s dismissal of claims two and three without comment. We affirm the dismissal of claim one without prejudice to any right Mr. Blair may have to file a petition for belated appeal in this court. See Fla. RApp. P. 9.141(c); Bowers v. State, 939 So.2d 337 (Fla. 2d DCA 2006).

Affirmed.

SALCINES and CANADY, JJ., concur.


author: WALLACE, Judge.

text:
    David P. DURDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3299.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2007.
   WALLACE, Judge.

David P. Durden appeals the summary denial of his motion to correct sentencing errors filed in accordance with Florida Rule of Criminal Procedure 3.800(b)(1). The trial court concluded that Mr. Dur-den’s motion was untimely, treated the motion as if it had been filed under rule 3.800(a), and denied the motion on the merits. We reverse the trial court’s summary denial of Mr. Durden’s motion to correct sentencing errors, and we remand for further proceedings consistent with this opinion.

Rule 3.800(b)(1) allows defendants in criminal cases to file a motion to correct sentencing errors in the trial court during the time allowed for the filing of a notice of appeal of the sentence. In conjunction with rule 3.800(b)(1), Florida Rule of Appellate Procedure 9.020(h) delays the rendition of the final order until the trial court disposes of the rule 3.800(b)(1) motion. Therefore, a defendant has thirty days to file a notice of appeal after the trial court rules on any sentencing error preserved by a 3.800(b)(1) motion.

On September 12, 2005, the trial court resentenced Mr. Durden in case numbers CRC93-07740CFANO-A and CRC94-00832CFANO-A. On October 11, 2005, twenty-nine days later, Mr. Durden timely filed his rule 3.800(b)(1) in both cases. Therefore, the trial court erred in concluding that Mr. Durden’s motion was untimely and incorrectly treated it as a rule 3.800(a) motion.

For these reasons, we reverse the trial court’s summary denial of Mr. Durden’s motion to correct sentencing errors. On remand, the trial court shall treat the motion as having been filed under rule 3.800(b)(1) and rule on the motion accordingly. If the trial court does not rule on the motion within sixty days of the issuance of this court’s mandate, then the motion shall be considered to be denied. We note that Mr. Durden will have thirty days from the disposition of his motion within which to appeal his resentencing.

Reversed and remanded for proceedings consistent with this opinion.

ALTENBERND and CASANUEVA, JJ., Concur.

      . If the trial court does not file an order ruling on the motion within sixty days, the motion is deemed to be denied. Fla. R.Crim. P. 3.800(b)(1)(B).


author: WHATLEY, Judge.

text:
    Tarome ROLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-397.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2007.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Taróme Rollins filed this appeal of two separate circuit court cases. In case number CF05-5868, Rollins pleaded guilty to possession of cocaine within 1000 feet of a church with intent to sell, and in case number CF97-5898, the trial court found that Rollins violated probation by committing the above offense and by knowingly being in a place where drugs are unlawfully sold, dispensed, or used. Rollins had filed a motion to suppress in both cases, arguing that police did not have probable cause to arrest him for violating his probation, and therefore, the cocaine found during the search incident to the arrest should be suppressed. We agree and reverse.

At the hearing on the motion to suppress, Officer Ronald Bowling testified that he observed Rollins talking to a man in a hotel parking lot. Officer Bowling testified that the hotel and .its parking lot was known as a high drug area and that police had made several recent arrests relating to illegal narcotics in that area. Officer Bowling approached Rollins and asked. him if he lived or worked in that area, and Rollins replied that he did not. The other man stated that he worked at the hotel. Rollins then volunteered his identification card to the officer. While a second officer was checking Rollins’ identification on his computer, Officer Bowling asked Rollins if he could search him and Rollins declined to be searched.

The computer check revealed that Rollins was on probation, and Officer Bowling thereafter arrested Rollins for violating his probation by being in an area where drugs are unlawfully sold, dispensed, or used. In a search incident to the arrest, cocaine was found in Rollins’ front pants’ pocket.

Condition five of Rollins’ probation required that he “shall not knowingly visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.” At the hearing on the motion to suppress, there was no evidence that Rollins knew the hotel area was a place where drugs are unlawfully sold, dispensed, or used. Therefore, police did not have probable cause to arrest him for violating this condition of his probation, and evidence found during the search incident to that arrest should have been suppressed.

We are mindful that the United States Supreme Court recently held that the Fourth Amendment does not prohibit a police officer from conducting a suspicion-less search of a parolee. Samson v. California, — U.S. -, 126 S.Ct. 2193, 2202, 165 L.Ed.2d 250 (2006). However, Samson examined a California law which provided that “every prisoner eligible for release on state parole ‘shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.’ ” Id. at 2196 (citing CaLPenal Code Ann. § 3067(a) (West 2000)). ‘ There is no similar law in Florida requiring a person placed on probation to submit to a search, with or without cause, by a law enforcement officer. Therefore, Samson does not apply to the case at bar.

Accordingly, we reverse Rollins’ judgment and sentence in case number CF05-5868 and the order revoking his probation in case number CF97-5898, and we remand the cases for further proceedings.

Reversed and remanded.

NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author:
PER CURIAM. KIMBALL, J.
      KNOLL, J.,

text:
    In re Joseph Aiavolasiti KOTT.
    No. 2005-OB-0999.
    Supreme Court of Louisiana.
    Nov. 29, 2006.
    Rehearing Denied March 9, 2007.
    Herman, Herman, Katz & Cotlar, Russ M. Herman, Maury A. Herman, James C. Klick, New Orleans; The Bezou Law Firm, Jacques F. Bezou, Covington, for Applicant.
    Richard A. Goins, Scott T. Whittaker, New Orleans, Charles B. Plattsmier, Baton Rouge, for Respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

hThe Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Joseph A. Kott, to sit for the Louisiana Bar Examination based on character and fitness concerns primarily arising out of his felony conviction for vehicular homicide. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, we appointed a commissioner to take evidence and report to this court whether petitioner possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing in February 2006, pursuant to Supreme Court Rule XVII, § 9(B). The commissioner received documentary evidence and heard testimony given by petitioner and his witnesses. At the conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be denied admission to the practice of law in Louisiana | gat this time. Petitioner objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(E). Accordingly, it is ordered that the application for admission be and hereby is denied. Petitioner may not reapply for admission for a period of at least eighteen months from the finality of this judgment.

CALOGERO, C.J., dissents and would admit petitioner conditionally.

KIMBALL, J., dissents and assigns reasons.

KNOLL, J., dissents and would conditionally admit petitioner.

KIMBALL, J.

dissenting.

hi respectfully dissent from the majority because I believe petitioner has affirmatively shown that his character has been rehabilitated in the eight years since his felony conviction for vehicular homicide. See La. Sup.Ct. Rule XVII, § 5(D). At the character and fitness hearing, petitioner testified that he tried to do positive things after the accident in an effort to redeem himself. He sought counseling and participated in AA, became involved in the youth ministry at St. Peter’s Catholic Church in Covington, did volunteer work and other community service, and participated in student government and extracurricular activities at Southeastern. Petitioner has been alcohol — and drug-free since the accident, and is still actively involved with AA and attends meetings each week. Moreover, he has successfully founded two different facilities in Mande-ville and Covington for young people who are recovering alcoholics. He has been active in speaking to high school students, fraternity brothers, and GED graduates about the dangers of alcohol and his own life story. He has worked closely with several other individuals who suffer from alcoholism and has led them on the road to rehabilitation, most notably the son of the man petitioner killed in the accident. When asked to explain why he wants to be a lawyer, petitioner expressed a desire to redeem himself:

Your Honor, I am well aware of the graveness of my actions as a teenager. And they are inexcusable. And I suffer with them every day. And no matter what I note, no matter what any court says, any — I still — they come with me where ever I go. I have made it my point in life to do what I can to overcome these things and contribute back | ginto society what I have — what I’ve taken away.
I know that there is more that I can do. And I want to do that. But I know that to make up for the things that I have done, it is — it has to be done in bits. Because I cannot — I cannot in one day repay and undo and balance off what I did as a teenager. And I know that it will take — it will take my entire life to repay that and through — through doing whatever I can do for whomever I can do for.
And I intend to do that.... And that’s the only way any of this would work. Because I can’t take it back. I understand that. I cannot take back the things that I have done wrong, and I cannot take back the accident. But the only thing that I know I can do is to contribute and do what I can.
* * *
And I want — I desire to contribute in the legal profession.... I would — I would really love to have the opportunity to give people second chances and fight for their causes. As there have been people who fought for my causes.... And I want to be there for someone else who can do that. And I want to be able to do that for them....

Petitioner was consumed by remorse after the fatal accident on December 12, 1998. He accepted full responsibility for his actions and pledged to do everything he could to rehabilitate himself and become a productive member of society. Moreover, petitioner met all of the requirements of his probation. On July 25, 2003, with the support of the State, his probation officer, and the widow and son of the man killed in the accident, the district court granted petitioner’s motion for early termination of probation and for expungement of his criminal record, noting the very strong support of petitioner expressed by the victim’s family. Petitioner’s actions, including his involvement with AA coupled with his efforts to serve the community, demonstrate his rehabilitation and establish his character and fitness to practice law. Therefore, I would conditionally admit petitioner to the practice of law in Louisiana.

KNOLL, J.,

dissenting.

hi would conditionally admit the petitioner.

APPLICATION FOR REHEARING

Rehearing denied.

CALOGERO, C.J., and KIMBALL and KNOLL, JJ., would grant a rehearing.

      . In re: Kott, 04-2715 (La. 12/10/04), 888 So.2d 820.


author: WEIMER, Justice. KIMBALL, Justice,

text:
    Jeffrey S. LEVINE, M.D. v. FIRST NATIONAL BANK OF COMMERCE First National Bank of Commerce v. Jeffrey S. Levine.
    Nos. 2006-C-0394, 2006-C-0439.
    Supreme Court of Louisiana.
    Dec. 15, 2006.
    Rehearing Denied Feb. 16, 2007.

      Ezkovich & Company, Alan D. Ezkovich, Melissa M. Savoie; Morrison & Forrester, Beth S. Brinkmann, Seth M. Galanter, Brian R. Matsui, for Applicant in No. 2006-C-0394.
    Steven Lemoine, Baton Rouge; Taggart, Morton, Ogden, Staub, Rougelot & O’Brien, Perry R. Staub, Jr., James R. Morton, New Orleans, Amanda S. Moore, for Respondent in No. 2006-C-0394.
    David Joseph Boneno, for Louisiana Bankers Association, Amicus Curiae.
    Michael H. Rubin; McGlinchey Stafford, Baton Rouge; Joseph M. Kolar, Matthew P. Previn, Buckley Kolar, for American Financial Services Assn., America’s Community Bankers Assn., Consumer Banker’s Assn., Consumer Mortgage Coalition, Housing Policy Counsel of the Financial Services Roundtable and Mortgage Bankers Association, Amicus Curiae.
    Steven Lemoine, Baton Rouge, for Applicant in No. 2006-C-0439.
    Ezkovich & Company, Alan D. Ezkovich, Melissa M. Savoie; Morrison & Foerster, Beth S. Brinkmann, Seth M. Galanter, Brian R. Matsui; Taggart, Morton, Ogden, Stub, Rougelot & O'Brien, Perry R. Staub, Jr., James R. Morton, New Orleans, Amanda S. Moore, for Respondent in No. 2006-C-0439.
   WEIMER, Justice.

11 After a homeowner and a national bank signed a mortgage which contained a due-on-sale clause, the homeowner transferred his property pursuant to a bond for deed which placed the transferees in immediate and exclusive possession and granted the transferees the right to demand specific performance and eventually acquire title. Claiming the bond for deed triggered the due-on-sale clause, the bank sued to foreclose. The homeowner responded with a suit for preliminary injunction and damages. Writs were granted in these consolidated cases, in part to determine whether, based on federal law, the bond for deed triggered the due-on-sale clause in the homeowner’s mortgage absent the bank’s approval of the transfer.

bFor the reasons that follow, we conclude the due-on-sale clause was triggered, which requires reversal of the judgment that was rendered in favor of the homeowner and against the bank for damages due to the seizure of the property.

FACTS AND PROCEDURAL BACKGROUND

The relevant facts are undisputed.

Dr. Jeffrey S. Levine completed his medical residency in gastroenterology and began practice in New Orleans, Louisiana. In anticipation of being married, Dr. Levine purchased a home at 2412 Mont Mar-tre Avenue, Gretna, Louisiana, in 1996. In order to finance the purchase, Dr. Levine entered into a mortgage on the property with First National Bank of Commerce (Bank). Dr. Levine married on August 11,1996.

Approximately a year later, the couple decided they wanted to locate to a less urban area, and Dr. Levine put his house on the market; they ultimately moved to Elizabeth City, North Carolina.

Shortly before he moved to Elizabeth City, Dr. Levine met Richard and Sandra Carrara, who wanted to purchase the Gretna property. Because Richard had recently retired and begun self-employment as a consultant for oil companies, the Carraras were ineligible for a conventional mortgage to purchase the property. On the advice of the agent selling the house, Dr. Levine and the Carraras entered into a Louisiana bond for deed on August 1, 1997, without notice to the Bank.

Under the terms of the bond for deed, the Carraras would make 84 monthly payments to Escrow-Serv, Inc., a bond-for-deed escrow agency. Escrow-Serv, Inc. would retain a $20.00 fee and forward the remainder of the monthly payment to | ^Colonial Mortgage Company, the mortgage-servicing agency for the Bank, in satisfaction of the monthly installment specified in Dr. Levine’s mortgage. At the conclusion of the seven-year term of the bond for deed, the Carraras were to pay off the remaining balance under the Bank’s mortgage, and Dr. Levine would transfer title to the property to the Car-raras.

The Levines moved to Elizabeth City and the Carraras moved into the house in Gretna.

In August of 1997, Colonial Mortgage reported to the Bank that an entity other than Dr. Levine was making the mortgage payments. A Bank officer wrote to Colonial Mortgage and instructed that company not to accept any further payments from Escrow-Serv, Inc. On September 8, 1997, Colonial Mortgage wrote to Dr. Levine and advised him the Bank considered his entry into the bond for deed to be a violation of the due-on-sale clause of the Bank’s mortgage.

On April 13, 1998, after some negotiations between the parties that did not result in a resolution of the matter, the Bank instituted foreclosure proceedings in the Twenty-Fourth Judicial District Court for the Parish of Jefferson.

Shortly thereafter, Dr. Levine filed a separate petition for damages and for in-junctive relief against the Bank; the trial court granted a preliminary injunction enjoining the foreclosure. The Bank appealed from this ruling and the appellate court affirmed the judgment. Levine v. First National Bank of Commerce, 98-1069 (La.App. 5 Cir. 6/1/99), 738 So.2d 133, writ denied, 99-1931 (La.10/8/99), 751 4So.2d 225 (Levine I). Dr. Levine then pursued his claim for damages against the Bank for wrongful seizure.

On April 10, 2000, Dr. Levine, joined by Richard and Sandra Carrara, filed a supplemental petition alleging they were entitled to damages from the Bank for violations of Louisiana’s Unfair Trade Practices and Consumer Protection Law (LUTPA), LSA-R.S. 51:1401, et seq. The Bank responded to the doctor’s claim with an exception of no cause of action and a motion for summary judgment. The exception and motion were denied by the trial court, and the court of appeal denied the Bank’s writ application seeking reversal of that ruling. Levine v. First National Bank of Commerce, # 02-C-0312. The Bank also brought an exception of no right of action as to the Carraras’ LUTPA claim, which the trial court sustained. The appellate court affirmed that ruling, finding the transferees of a bond for deed are not among the protected persons under LUT-PA and have no right of action against the Bank. Levine v. First National Bank of Commerce, 02-1114 (La. App. 5 Cir. 4/29/03), 845 So.2d 1189 (Levine II).

Then the Carraras filed a separate suit against Dr. Levine, alleging they were owed damages as a result of Dr. Levine’s breach of the warranty of peaceable possession of the property. This suit was consolidated in the trial court with Dr. Levine’s suit against the Bank. Dr. Levine answered the Carraras’ demand, denying liability to the Carraras and further asserting a third party claim against the Bank for indemnification if he should be cast in judgment.

In October 2008, the consolidated matters proceeded to a jury trial. The jury found the Bank’s actions in foreclosing on Dr. Levine’s property to be the sole cause-En-factjj of his damages, and awarded Dr. Levine a total of $300,000 for humiliation, embarrassment, and mental anguish. The jury also found the Bank’s actions constituted unfair trade practices. Following the jury verdict, Dr. Levine filed a request for statutory attorney’s fees based on the jury’s determination of a LUTPA violation.

On November 24, 2003, the trial court rendered judgment in favor of Dr. Levine for $300,000 and further determined the Bank was liable for plaintiffs reasonable attorney’s fees, the amount of which would be determined at a later date. In a separate judgment, the trial court rendered judgment against Dr. Levine and in favor of Richard and Sandra Carrara in the amount of $35,000 each, in addition to the attorney’s fees incurred. In this judgment, the Bank was ordered to indemnify Dr. Levine for the amounts for which he was cast in judgment.

Following post-trial motions, which were denied, the Bank appealed from both judgments. Dr. Levine answered the appeal, seeking additional damages. The court of appeal vacated and reversed the judgment in favor of Richard and Sandra Carraras and against Dr. Levine, as well as the order requiring the Bank to indemnify Dr. Levine for those damages.

By a two-to-one vote, the court of appeal affirmed the judgment that awarded Dr. Levine $300,000 in damages and the judgment requiring the Bank to reimburse Dr. Levine for his attorney’s fees. Levine v. First National Bank of Commerce, 05-0106, 05-0107, 05-0108, (La.App. 5 Cir. 12/27/05), 917 So.2d 1235 (Levine III). The matter was remanded to the trial court for a determination of the amount of attorney’s fees.

| (Judge Daley dissented from the majority’s ruling on the damage award, finding that under federal law, the bond for deed activated the due-on-sale clause of Dr. Levine’s mortgage and, thus, allowed the foreclosure.

The Bank and the Carraras filed applications for writs, which this court granted. Levine v. First National Bank of Commerce, 06-0394, 06-0439 (La.6/2/06), 929 So.2d 1237.

DISCUSSION

The Bank’s foreclosure was grounded on the proposition that Dr. Levine breached the terms of the mortgage agreement by transferring an interest in the secured property pursuant to a bond-for-deed contract. Two assertions form the crux |7of the Bank’s argument in defense of Dr. Levine’s demand for damages: 1) that a sale of the entirety of the property subject to the mortgage is not necessary to trigger the due-on-sale clause in the mortgage under Louisiana law; and 2) that Louisiana’s substantive law interpreting the effect of a bond for deed is subject to certain preemptive provisions of federal law dealing with the application of the due-on-sale clause. We agree with the Bank’s assertions.

Interests transferred

It is undisputed that the mortgage instrument which contains the agreement between the Bank and Dr. Levine is identified as a “Louisiana-Single Family-FNMA/FHLMC Uniform Instrument,” form 3019 1/91, Amended 5/91. Clause 17 of the document executed by the Bank and Dr. Levine reads in pertinent part:

[ ¡/Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred (or if a beneficial interest is sold or transferred and Borrower is not a natural person) without Lender’s prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. [Emphasis supplied.] Clearly, in the above clause, the credi-

tor’s right to accelerate the debt and demand payment in full of the outstanding obligation is not restricted to the sale of the entire property subject to the mortgage. Instead, the creditor’s rights apply in the case of transactions in which (1) “any part” of the mortgaged property, or (2) “any interest” in the property, or (3) a “beneficial interest” in the borrower when the borrower is not a natural person is (a) sold or (b) transferred.

Further, the parties do not dispute that Dr. Levine and the Carraras entered into a bond for deed pursuant to LSA-R.S. 9:2941, et seq. In Louisiana, a bond for deed is defined as “a contract to sell real 'property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” (Emphasis supplied.) LSA-R.S. [ ¡,9:2941. In turn, a contract to sell pursuant to Louisiana civil law gives the parties the right to demand specific performance. LSA-C.C. art. 2623.

Under the terms of the bond for deed executed by Dr. Levine and the Carraras, the Carraras obtained “the immediate right of exclusive possession of the herein described Property.” The “contract is binding and heritable upon the heirs and assigns of all parties.” Further, pursuant to Louisiana law, this bond for deed, which is “a contract to sell real property,” conveyed to the Carraras the right to demand specific performance, i.e., the transfer of title by Dr. Levine upon the conclusion of the seven-year term of their bond-for-deed contract. Although the Levine/Carraras bond for deed did not convey full ownership, it did convey rights in the subject property, i.e., the right of immediate and exclusive possession coupled with the right to demand specific performance. Thus, in the words of the due-on-sale clause previously quoted, the Levine/Carraras bond for deed “transferred” an “interest” in the property.

We conclude the Bank’s first assertion— that a sale of the entirety of the mortgaged property was not necessary to trigger the due-on-sale clause in the mortgage under Louisiana law — is an accurate statement of the law.

| federal law preempts Louisiana law

The Bank’s next assertion is that Louisiana’s substantive law interpreting the effect of a bond for deed on the due-on-sale clause in the mortgage is preempted by applicable provisions of federal law dealing with due-on-sale clauses. In his dissent in Levine III, Judge Daley observed that the majority of the panel in Levine I “interpreted federal law[ ] without a detailed analysis of the federal regulations addressing due-on-sale clauses.” Levine III, 05-0106 at 3, 917 So.2d at 1248. This shortcoming was repeated in Levine III because the majority held the law of the case doctrine applied to bar its consideration of the wrongfulness of the foreclosure.

The issue of preemption derives from Article VI of the United States Constitution which provides that the “Laws of the United States ... shall be the supreme Law of the Land.” Therefore, any state law that conflicts with federal law has no effect. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). However, “[cjonsider-ation of issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Id., quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).

According to the unrefuted testimony of Joyce Schenewerk, former corporate counsel for the Bank, the Office of the Comptroller of the Currency (OCC) is the primary regulator of all national banks and has the authority to regulate all bank activities. Multi-state operations increase the importance of a national banking law framework. If a national regulatory framework were absent, banks would be subject Into the laws of each state and municipal jurisdiction in which they operate, creating a patchwork of rules that would hamper the banking industry’s day-to-day operation.

In its argument concerning preemption, the Bank has cited three provisions of federal law which clearly manifest the intent of Congress that federal law should supersede Louisiana law regarding the triggering of the due-on-sale clause.

First, the National Housing Act, 12 U.S.C.A. § 1701, et seq., as amended by the Garn-St. Germain Depository Institutions Act of 1982 provides, in pertinent part:

Notwithstanding any provision of the constitution or laws (including the judicial decisions) of any State to the contrary, a lender may ... enter into or enforce a contract containing a due-on-sale clause with respect to a real property loan.
[T]he exercise by the lender of its option pursuant to such a clause shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the lender and the borrower shall be fixed and governed by the contract. [Emphasis supplied.]

12 U.S.C.A. §§ 1701j-3(b).

As previously indicated, a “due-on-sale clause” is defined as a contract provision which authorizes a lender, at its option, to declare the entire debt due if all or any part of the property or “an interest” therein is “sold or transferred” without the lender’s prior written consent. 12 U.S.C.A. § 1701j-3(a)(l). The statute defines 1^“lender” as a person or government agency making a real property loan, or any assignee or transferee thereof. 12 U.S.C.A. § 1701j-3(a)(2). “Real property loan” is defined as a loan, mortgage, advance, or credit sale secured by a lien on real property. 12 U.S.C.A. § 1701j-3(a)(3). The Federal Home Loan Bank Board is authorized to issue rules and regulations implementing the provisions of the statute. 12 U.S.C.A. § 1701j-3(e)(l).

Next, acting on the above statutory grant of regulatory authority, federal regulators issued Part 591 of Title 12 of the Code of Federal Regulations, which clearly states the purpose of the regulation, as follows:

The purpose of this permanent preemption of state prohibitions on the exercise of due-on-sale clauses by all lenders, whether federally- or state-chartered, is to reaffirm the authority of Federal savings associations to enforce due-on-sale clauses, and to confer on other lenders generally comparable authority with respect to the exercise of such clauses. [Emphasis supplied.]

12 C.F.R. § 591.1(b). The regulation further provides that for purposes of the exercise of a due-on-sale clause,

sale or transfer means the conveyance of real property of any right, title or interest therein, whether legal or equitable, whether voluntary or involuntary, by outright sale, deed, installment sale contract, land contract, contract for deed[ ] leasehold interest with a term greater than 11sthree years, lease option contract or any other method of conveyance of real property interests. [Emphasis supplied.]

12 C.F.R. § 591.2(b).

By definition, a “lender” includes national- or state-chartered banks, and any assignee or transferee thereof. 12 C.F.R. § 591.2(g). A lender is authorized to include a due-on-sale clause in its loan/mortgage instruments and to enforce such clauses in accordance with the contract terms. 12 C.F.R. § 591.4(b). The regulations explicitly state that the right to enforce a due-on-sale clause shall be “in preemption of and without regard to any limitations imposed by state law.” 12 C.F.R. § 591.5(a).

Finally, by OCC regulations issued as a companion to those found in Part 591 of the C.F.R., national banks are specifically authorized to make or acquire real | uproperty loans, secured by a lien on the property, which contain a due-on-sale clause; banks are authorized to enforce such clauses “notwithstanding” any state law limitations to the contrary. 12 C.F.R. § 34.5. As was the case in Part 591, the due-on-sale clause is triggered by a broad range of transactions “if all or part of the legal or equitable title or an equivalent contractual interest in the property securing the loan is transferred to another person, whether by deed, contract or otherwise.” 12 C.F.R. § 34.2.

Congressional intent concerning preemption may be expressed explicitly or implicitly in the law. Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617. Nevertheless, “[w]hen Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision - provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of legislation.” (Quotation marks and citations omitted.) Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618. Thus, the explicit language of the federal codal provisions and regulations quoted above precludes our inquiry into implied preemption. King v. Collagen Corporation, 983 F.2d 1130, 1134 (1st Cir.), cert. denied, 510 U.S. 824, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993).

Dr. Levine responds to the Bank’s reliance on federal preemption by arguing that any preemption of due-on-sale clauses does not reach foreclosure proceedings, which remain subject to state regulations. Plaintiff quotes, “[T]he States have created diverse networks of judicially and legislatively crafted rules governing the foreclosure process, to achieve what each of them considers the proper balance between the needs of lenders and borrowers.” BFP v. Resolution Trust Corporation, 511 U.S. 531, 541-542, 114 S.Ct. 1757, 1763, 128 L.Ed.2d 556 15(1994). Throughout this litigation, both Dr. Levine and the Carrar-as have maintained that state remedies are not preempted because of the inherent unfairness of a lending institution foreclosing on a “performing” loan, i.e., a loan that was never in default because the payments specified in the mortgage continued to be paid by the transferees in the bond for deed. In brief to this court, Dr. Levine avers:

Neither Dr. Levine nor the Carraras ever (I) missed or failed to pay on time a payment on the Bank Mortgage, (ii) failed to keep insurance on the property, or (iii) failed to maintain the House. Never before had the Bank foreclosed on a performing loan where the sole reason for foreclosure was the entry of the mortgagor into a bond-for-deed agreement. Never before had the Bank even discovered that a mortgagor had entered into a bond-for-deed agreement without some outside agency informing them of that occurrence.

On the surface plaintiffs’ argument casts the Bank’s actions in an unappealing light, but the argument ignores the need for a uniform enforcement of due-on-sale clauses available to national banks in the various states. Unlike the situation involving bankruptcy regulations, the situation here involving federal laws relating to due-on-sale clauses demonstrates an innate need for uniform enforcement. Schenewerk explained at trial the Bank’s use of Clause 17 in the Bank’s mortgage 11fidocument, a uniform provision contained in a nationally-standardized agreement, and why such provisions are required and enforceable under federal law:

[EJvery mortgage that’s signed in the United States that is sold into the secondary market — when your mortgage is sold to either an investor or Ginnie Mae or Fannie Mae, one of the government agencies — those mortgages have the best interest rates and the best payment terms. But the reason is the federal government subsidizes that program and keeps it going. And the way to keep it going in a national economy is to have one mortgage, even though we have fifty (50) states. And all fifty (50) states are different. No[ ] two (2) of them are the same. So, the way this works is everybody knows when they look at this mortgage, it says “Fannie Mae/Freddie Mac Uniform Instrument” on the bottom. It can be sold nationally. It can be packaged with mortgages from Alaska and people will know what it says and what it means. So, there are these twenty (20) uniform provisions that are the same everywhere. Everybody has got to pay taxes and keep insurance.... [T]hese mortgages make it possible for every homeowner in this country to afford a home, to buy a home, and to make payments for thirty (30) years. So, that’s why it is a uniform document. And it’s dictated, not by the lenders, but by Fannie Mae and Freddie Mac, the federal government.

Schenewerk’s explanation is consistent with the reasons for maintaining uniformity in the banking industry stated by the United States Supreme Court in Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). The Court noted that restrictions on a lender’s ability to accelerate a loan upon transfer of the security would have a number of adverse effects, namely:

(1) that the “financial security and stability of [the lender] would be endangered if ... the security property is transferred to a person whose ability to repay the loan and properly maintain the property is inadequate”; (2) that “elimination of the due on sale clause will cause a substantial reduction of the cash flow and net income of [the lender], and that to offset such losses it is likely that the [lenders] will be forced to charge higher interest rates and loan charges on home loans generally”; and (3) that “elimination of the due on sale clause will restrict and impair the ability of [the lender] to sell their home loans in the secondary mortgage market, by making such loans unsalable or causing them to be sold at reduced prices, thereby reducing the flow of new funds for residential loans, which otherwise would be available.”

Jj¡Id., 458 U.S. at 146, 102 S.Ct. at 3019, quoting People v. Coast Federal Sav. & Loan Assn., 98 F.Supp. 311, 316 (S.D.Cal. 1951).

It is suggested that due-on-sale clauses actually benefit home buyers generally because:
restrictions on due-on-sale clauses generally help existing homebuyers to the disadvantage of new homebuyers. Due-on-sale restrictions also encourage risky lending practices, outside the realm of the traditional mortgage credit delivery system, which intensify default risks. Finally, studies have concluded that these restrictions may lead to the complete disappearance of that traditional mainstay of American homeowners — the long-term fixed rate mortgage.

Senate Report (Banking, Housing and Urban Affairs Committee), S.Rep. 97-536 at 20-21 (1982), reprinted in, 1982 U.S.C.C.A.N. 3054, 3074-75.

According to some authors, home buyers also benefit from the efficient operation of the secondary mortgage market, which requires uniform enforcement of due-on-sale clauses. Residential mortgages are routinely packaged by the lender (called a “mortgage banker”) and sold to a secondary market “securitizer” — frequently Fannie Mae or Freddie Mac — or to other financial institutions for loans that do not qualify for sale to those entities. As far back as the 1980s, few mortgage instruments were written without due-on-sale clauses, de la Cuesta, 458 U.S. at 155 n. 10, 102 S.Ct. at 3023 n. 10. “The Federal Home Loan Mortgage Corporation and the Federal National Mortgage Association ... require, in the mortgages they buy, either a due-on-sale clause or a provision enabling the lender to demand payment of the loan in seven years. The marketability of a mortgage in the secondary market is Identical to a [lender], for it thereby can sell mortgages to obtain funds to make additional home loans.” Id.

While a due-on-sale clause would seem to be repugnant to one’s right to transfer one’s property to whomever he or she wished, this right is limited because of the detrimental impact on others, especially in the secondary mortgage market. As articulated in the codal provisions and regulations previously cited, Congress has clearly adopted a policy to limit one’s right to transfer one’s property that is encumbered by a mortgage with a due-on-sale clause, so as to make mortgages more readily transferable in the secondary mortgage market. While this policy can be debated in the halls of Congress, it is our obligation to apply laws as written and to respect Congress’s intent regarding policy decisions. Placing a limit on one’s ability to transfer one’s property encumbered by a mortgage containing a due-on-sale clause, in theory, serves a greater good by fostering the secondary market and, in the long run, making home loans more affordable for everyone. Thus, preemption by federal law is necessary to preclude attempts by various states to limit enforcement of due-on-sale clauses by depriving lenders of the flexibility of accelerating the loans solely at the lenders’ option. See Clause 17, supra: “Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument.”

We are constrained to find that federal law preempts state law concerning the foreclosure by the Bank in the instant case. Indeed, a contrary conclusion would violate the Supremacy Clause of the United States Constitution and the actual exercise by the federal government of its preemptive authority, as noted in a 1982 pronouncement of the United States Supreme Court. “The relative importance to the [s]tate of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.” 19de la Cuesta, 458 U.S. at 153, 102 S.Ct. at 3022.

In the instant case, because of the clear and explicit language of the federal provisions which refer to “contracts for deed” and a broad range of transactions within the kinds of conveyances that trigger due-on-sale clauses, we conclude a due-on-sale clause would be enforceable in this state even if Louisiana law were to provide to the contrary. The restriction on the Bank’s right to exercise its option to accelerate the loan because of the bond for deed is no less a restriction than a state statute because the restriction arose from a money judgment against the Bank for wrongful seizure rather than by a specific statute restricting the Bank’s ability to execute on the due-on-sale clause to cases in which its security is impaired. According to the terms of the due-on-sale clause included in the mortgage at issue here, the clause was triggered by the bond-for-deed transfer of an interest in the mortgaged property according to federal law, which preempts any state statute or judicial decision to the contrary. “As judges, it is neither our function, nor within our expertise, to evaluate the economic soundness” of the federal regulatory provisions that preempt state law. de la Cuesta, 458 U.S. at 169-170,102 S.Ct. at 3031.

When our two conclusions are combined — i.e., that the bond for deed transferred an interest in the property and that federal law regarding the triggering of the due-on-sale clause preempts state law — it is clear that the Bank’s seizure of the property was not wrongful. Thus, Dr. Levine was not entitled to damages for wrongful seizure. See Moore v. Louisiana Bank & Trust Company, 528 So.2d 606 (La.App. 2 Cir.), writ denied, 531 So.2d 269 (1988) (Plaintiff must show illegal conduct accompanying seizure in order to obtain damages.); Sims v. Matassa, 200 So. 666, 668 (LaApp. 1 Cir.1941) (Seizure was not wrongful because the creditor Lnbad reasonable grounds to believe the debtor was married and the property belonged to the community.)

LUTPA claim

The court of appeal also affirmed an award to Dr. Levine of attorney’s fees pursuant to the jury’s finding of the Bank’s violation of LUTPA. A cause of action for unfair trade practices is governed by the provisions of LUTPA, LSA-R.S. 51:1401, et seq. Louisiana Revised Statutes 51:1405(A) provides that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” This legislation is broadly and subjectively stated and does not specify particular violations. Rather, what constitutes an unfair trade practice is determined by the courts on a case-by-case basis. Jarrell v. Carter, 577 So.2d 120, 123 (LaApp. 1 Cir.), writ denied, 582 So.2d 1311 (1991). “[A] practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious.” Roustabouts, Inc. v. Hamer, 447 So.2d 543, 548 (La.App. 1 Cir.1984), citing Coffey v. Peoples Mortgage & Loan of Shreveport, Inc., 408 So.2d 1153 (La.App. 2 Cir.1981); National Oil Service of Louisiana, Inc. v. Brown, 381 So.2d 1269 (La.App. 4 Cir. 1980). To allow Dr. Levine to pursue a claim pursuant to LUTPA would enable him to circumvent federal law and impede the Bank’s right to utilize the due-on-sale clause.

Our finding that the Bank’s seizure of Dr. Levine’s property was not wrongful eliminates any basis for the Bank’s liability to Dr. Levine pursuant to LUTPA.

CONCLUSION

We have concluded that the Bank cannot be liable to Dr. Levine for damages because damages for wrongful seizure are allowed only after an illegal seizure. The | aiBank’s seizure of Dr. Levine’s property was not illegal because the Bank accelerated its loan pursuant to Clause 17, the due-on-sale clause in its mortgage agreement. The due-on-sale clause was triggered when, via the bond for deed, Dr. Levine transferred an interest in the property, such as exclusive possession and the right to specific performance of the transfer of title.

Due-on-sale clauses in mortgages are not newly created features of security devices, as indicated by the authorities previously cited. Due-on-sale clauses are federally protected provisions in the mortgage agreements of national banks. Even if we were inclined to agree with the plaintiffs that the Bank should have been precluded from executing on the due-on-sale provision because this was a performing loan, this area of the law has been preempted by federal regulations.

Thus, we reverse the judgment in favor of Dr. Levine and against the Bank, and we dismiss Dr. Levine’s suit for damages with prejudice.

The Carraras filed for certiorari urging this court to reverse the judgment of the court of appeal which dismissed their claim against Dr. Levine. We granted certiorari in order to have the entire case before us. However, in light of our decision regarding Dr. Levine’s claims against the Bank, we see no reason to disturb the results reached by the court of appeal on the Carraras’ claim. Accordingly, we recall the writ grant in Number 06-C-0439.

06-C-0394 REVERSED IN PART AND AFFIRMED IN PART.

06-C-0439 WRIT RECALLED.

KIMBALL, Justice, concurs with reasons.

KIMBALL, Justice,

concurring.

11While I agree the due-on-sale clause was triggered under Louisiana law, I believe such a finding precludes a determination that federal law preempts Louisiana law in this case. As noted by the majority, the doctrine of preemption provides any state law that conflicts with federal law has no effect. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). Under the facts of the instant case, no conflict exists. Federal law provides, “Notwithstanding any provision of the constitution or laws (including the judicial decisions) of any State to the contrary, a lender may, subject to subsection (c) of this section, enter into or enforce a contract containing a due-on-sale clause with respect to a real property loan.” 12 U.S.C. § 17j-3. Similarly, 12 CFR § 591 states:

The purpose of this permanent preemption of state prohibitions on the exercise of due-on-sale clauses by all lenders, whether federally or state chartered, is to reaffirm the authority of Federal Savings Associations to enforce due-on-sale clauses, and to confer on other lenders generally comparable authority with respect to the exercise of such clauses.

Thus, under federal law, lenders have the authority to enforce due-on-sale clauses, | ¡^despite the existence of state law prohibiting due-on-sale clauses. Here, however, Louisiana law does not prohibit the exercise of the due-on-sale clauses, as this court specifically found the due-on-sale clause was actually triggered in this case under the terms of the mortgage agreement. Hence, Louisiana law clearly does not prohibit the exercise of the due-on-sale clause under the facts of this case. Accordingly, Louisiana law does not conflict with federal law, and federal preemption does not occur. While in my view the preemption discussion is unnecessary to the resolution of the opinion, I believe the majority has reached the correct result.

      . First National Bank of Commerce was merged into Bank One, NA, which, in turn, was merged into JP Morgan Chase,

      . A due-on-sale clause is defined as "a contract provision which authorizes a lender, at its option, to declare due and payable sums secured by the lender’s security instrument if all or any part of the property, or an interest therein, securing the real property loan is sold or transferred without the lender’s prior written consent.” 12 U.S.C.A. § 1701j— 3(a)(l)(1982).

      . See Levine v. First National Bank of Commerce, 02-1114, p. 4 n. 2 (La.App. 5 Cir. 4/29/03), 845 So.2d 1189, 1192 n. 2.

      . The status of the foreclosure proceedings sued upon was an issue that complicated the jury trial and the appeal of the judgment rendered pursuant to the jury verdict. During the opening statement of counsel for the Bank, counsel for plaintiff objected to references to the issue of the wrongfulness of the seizure. At a bench conference, counsel for the Bank urged the court to allow him to argue to the jury the propriety of the seizure. The judge ruled against him, emphatically finding that the wrongfulness of the seizure had previously been determined and stating he would not allow the jury to make any finding on the issue of the wrongfulness of the seizure. Thereafter, still during the opening statements, the trial judge decided to take it upon himself to instruct the jury that the issue of wrongful seizure had already been determined and that the jury was to limit its deliberations to the amount of damages to be awarded for the wrongful seizure and to the alleged violation of LUTPA. In light of the facts and circumstances contained in this record, we conclude the Bank has continuously maintained the Bank’s seizure was not wrongful until prevented from doing so by the trial judge, and the Bank properly preserved the issue of whether the seizure was wrongful. Furthermore, evidence of the Bank's justification for seizing the property was submitted to the jury because of the plaintiff’s LUTPA claim. Thus, the evidence of whether the seizure was wrongful is in the record and is available for our review.
      On appeal, the majority of the court of appeal held that its previous ruling on the issue of the wrongfulness of the seizure had become the law of the case and the trial court was correct in not allowing the issue to be litigated again.
      Further, in this court, Dr. Levine argues that the issue of wrongful seizure is res judi-cata, and, thus, this court should not reach the merits of the issue of a transfer of an interest in the property or the merits of the issue of preemption by federal law. These arguments are without merit.
      First, a denial of a writ by this court to review the lower courts' rulings on the injunction did not become the law of the case in this court. A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and it does not bar consideration of the issue denied supervisory review when trial on the merits is had and an appeal is taken from a final judgment. First Financial Bank, FSB v. Boue, 541 So.2d 947, 950 (La.App. 5 Cir. 1989). Thus, the ruling denying supervisory writs does not (as argued) bar reconsideration of the issue on appeal nor the reaching of a different conclusion. State v. Smith, 322 So.2d 197, 204 n. 2, (La.1975), citing Gulf States Utilities Company v. Dixie Electric Membership Corp., 248 La. 458, 179 So.2d 637 (1965), and Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655 (1929). The law of the case principle is not applied to prevent a higher court from considering the correctness of a ruling by an intermediate appellate court. Pitre v. Louisiana Tech University, 95-1466, 95-1487, p. 7 (La.5/10/96), 673 So.2d 585, 589, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996).
      In the instant case, the first decision by the appellate court, Levine I, merely affirmed the decision of the district court to grant the preliminary injunction which halted the foreclosure by the Bank. A preliminary injunction is a procedural device, interlocutory in nature, designed to preserve the existing status pending a trial of the issues on the merits of the case. LSA-C.C.P. art. 3601; Haughton Elevator Division v. State, Division of Administration, 367 So.2d 1161 (La.1979); see also, Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267, 1272 (La.1981) (A preliminary injunction is only provisional and is not intended as a resolution of the merits of a controverted issue.) The principal demand is determined on its merits only after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the preliminary injunction may touch upon or tentatively decide merit issues. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 494 (La.1979). In the instant case, there was no decision on the merits until judgment was rendered by the trial court pursuant to the jury verdict, which judgment was affirmed in Levine III.

      Thus, we hold that this court is not barred from considering the merits of Dr. Levine’s claim for damages, which holding leads us to pretermit discussion of the res judicata effect of the previous judgments. Nevertheless, we note that Dr. Levine's argument concerning the alleged application of res judicata cannot be raised for the first time in this court. The peremptory exception of res judicata must be specially pled. LSA-C.C.P. art. 927; Minvielle v. Minvielle, 00-1039, 00-1041, p. 3 (La.App. 5 Cir. 11/15/00), 776 So.2d 1223, 1225, writ denied, 00-3421 (La.2/9/01), 785 So.2d 823 (The exception of res judicata must be presented in a formal pleading and cannot merely be argued in brief.)

      . Although preemption of state law by federal law ordinarily would render unnecessary any discussion of other issues, such as the transfer of a property interest upon the execution of a bond for deed, the plaintiffs' contentions that a Louisiana bond for deed does not transfer an interest in the property until the transferees attain title to the property prompts us to address this issue prior to addressing the preemption issue.

      . The parties do dispute the applicability of LSA-R.S. 9:2942, which provides:
      It shall be unlawful to sell by bond for deed contract, any real property which is encumbered by mortgage or privilege without first obtaining a written guarantee from the mortgage and privilege holders to release the property upon payment by the buyer of a stipulated mortgage release price, with which agreement the secured notes shall be identified. The agreement shall be recorded in the mortgage records of the parish where the property is situated before any part of the property is offered for sale under bond for deed contracts. The provisions of this Part likewise shall apply to any property offered for sale by bond for deed contract which may be subsequently mortgaged or encumbered by a privilege.
      Although the statute appears directly on point, this court has held that "the unmistakable purpose and clear intent of the statute is to make secure and to safeguard a vendee of mortgaged property from fraud, deceit and misrepresentations.” Scott v. Apgar, 238 La. 29, 37, 113 So.2d 457, 459 (1959) (The primary question was whether the contract entered into between the parties was null ab initio as a result of plaintiff’s failure to have first obtained from the mortgage holder the written guarantee prescribed by the statute.) We pretermit any decision regarding the applicability of LSA-R.S. 9:2942 under the facts of this case, as any illegality of the bond for deed is not at issue here, only the alleged illegality of the seizure of the property. See discussion of this issue hereinafter.

      . We note a contract to sell does not specifically grant an immediate possessory interest. LSA-C.A. art. 2623. "[0]wnership and risk remain with the vendor, since a contract to sell does not effect a transfer of ownership.” Id.., Revision Comments, 1993. Nevertheless, we express no opinion as to whether a contract to sell, as opposed to a bond for deed, triggers a due-on-sale clause.

      . Even a leasehold interest with a term greater than three years, according to 12 C.F.R. § 591.2(b), constitutes a transfer of an interest in the property. If a lease for a term greater than three years, which allows possession of the property but not a right to acquire full ownership of the property, triggers a due-on-sale clause, then, a fortiori, a possessory interest such as the Carraras acquired in the bond for deed at issue here, coupled with their right to obtain full ownership, constitutes a transfer of an interest in the property which triggers the due-on-sale clause.

      . Before 1982, many states restricted the operation of due-on-sale clauses or prohibited the clauses altogether because to allow lenders to require refinancing of the property upon sale or transfer by the mortgagor was an unreasonable restraint on the alienability of the property. Jo Anne Bradner, The Secondary Mortgage Market and State Regulation of Real Estate Financing, 36 Emory L.J. 971, 1003-1004 (1987). In 1982, the United States Supreme Court held that a regulation of the Federal Home Loan Bank Board (FHLBB) that authorized federal savings and loan associations to include due-on-sale clauses in their mortgage forms preempted conflicting state laws. Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). The result of that opinion was that savings and loans associations could enforce the clauses even where lenders not under FHLBB regulation could not. This situation led to Congress’s passage of the Garn-St. Germain Depository Institutions Act which extended a sweeping preemption of state law concerning due-on-sale clauses to lenders previously unprotected from state restrictions. Bradner, 36 Emory L.J. at 1004.

      . Because Clause 17 of Dr. Levine's mortgage to the Bank is a standardized provision, the language therein is virtually the same as in this codal provision.

      . In his dissent, Judge Daley explained that “contract for deed” and "bond for deed” are synonymous:
      Since a “bond for deed” is not specifically identified in [12 C.F.R. § 591.2(b)] the Court must determine if the bond for deed instrument falls within the definitional criteria of the federal regulations. The Bank takes the position that the bond for deed, in this case, is in fact a "contract for deed,” which pursuant to 12 C.F.R. § 591.2(b) activates the due-on-sale clause. Black’s Law Dictionary defines a contract for deed as:
      An agreement by a seller to deliver the deed to the property when certain conditions have been met, such as completion of payments by purchaser.
      Bond for deed is defined by La. R.S. 9:2941 as:
      a contract to sell real property in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.
      A contract for deed is frequently called a bond for deed. “The so-called 'bond for deed’ contract is the conditional sale of an immovable.... [T]he bond for deed contract, as generally utilized by Louisiana attorneys, is no more than a conditional sale In Louisiana Practice Series; Louisiana Real Estate Transactions, the author comments:
      The bond for deed has been used in some cases to circumvent a lender’s right to accelerate the mortgage loan upon the transfer, since a bond for deed does not transfer title to the mortgaged property. The execution of a bond for deed is, however, considered a sale or transfer under 12 C.F.R. § 591.1, et seq., which preempts Louisiana law. Under 12 C.F.R. § 591.2(b) a sale or transfer includes a conveyance of real property by contract for deed. Thus, a lender may enforce a due on sale clause if the borrower executes a bond for deed contract even though the borrower retains legal title until the purchaser’s completion of payments.
      The Louisiana definition of bond for deed and the above cited authority suggest that the document entitled bond for deed executed by Dr. Levine is a contract for deed.
      ... [T]he bond for deed instrument contractually accomplishes the exact same thing as a contract for deed or an installment land contract and therefore under the federal regulations clearly is the type of instrument that triggers a due-on-sale clause. [Citations and footnotes omitted.]

        Levine III, 05-0106 at 4-6, 917 So.2d at 1249-1250.

      . There is a distinction between the federal laws relied on by the Bank in the instant case and the issue of preemption considered in BFP. That case involved a Chapter 11 debtor that brought a fraudulent transfer proceeding to avoid a mortgage foreclosure sale on the theory that the price received at the mortgage foreclosure sale was less than the "reasonably equivalent value” of the property. The Supreme Court held that the price received conclusively established "reasonably equivalent value,” as long as requirements of the state's foreclosure law were met. In BFP, "an essential state interest" was involved: the security of the titles to real estate. The Court noted that if preemption were to apply, "[t]he title of every piece of realty purchased at foreclosure would be under a federally created cloud.... To displace traditional state regulation in such a manner, the federal statutory purpose must be clear and manifest. Otherwise, the Bankruptcy Code will be construed to adopt, rather than to displace, preexisting state law.” (Quotation marks and citations omitted.) BFP, 511 U.S. at 544-545, 114 S.Ct. at 1765.

      . In Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), the plaintiffs were purchasers of property in California encumbered by deeds of trust. They brought actions against the lender seeking a judicial declaration that the due-on-sale clause was not enforceable unless the lender first showed that the transfer had harmed its security interest. The United States Supreme Court struck down a California statute that barred enforcement of the due-on-sale clause unless the lender could demonstrate that enforcement of the clause was reasonably necessary to protect against impairment to its security or the risk of default.

      . For discussion of the development and importance of the secondary mortgage market, see Robin Paul Malloy, The Secondary Mortgage Market: A Catalyst for Change in Real Estate Transactions, 39 Sw.L.Rev. 991 (1986); Jo Anne Bradner, The Secondary Mortgage Market and State Regulation of Real Estate Financing, 36 Emory L.J. 971 (1987).