ALL WESTERN MORTGAGE INC v. FALCON RIDGE TOWNHOMES LLC et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ALL WESTERN MORTGAGE INC,
Plaintiff,
v. 	CASE NO. 5:25cv334-MCR-MJF
FALCON RIDGE TOWNHOMES LLC,
et al.,
Defendants.
_________________________________/
ORDER
Plaintiff All Western Mortgage, Inc. (“All Western”) filed a two-count
Complaint for Foreclosure and Other Relief against Defendant Falcon Ridge
Townhomes, LLC (“Falcon Ridge”), seeking judgment on a promissory note (“the
Note”) and foreclosure of a Construction Mortgage and Security Agreement (“the
Mortgage”) on real property located in Bay County, Florida.1 ECF Nos. 1; 1–1; 1–
2. 	Falcon Ridge borrowed a principal amount of $2,716,780 to finance the
development of residential townhomes in Bay County and agreed to make payments
to All Western, as detailed in the Development Loan Agreement (“the Development
1 Four additional Defendants are also named as potential lienholders, and All Western alleges that
its lien takes priority. 	Defendants Opifex-Synergy, LLC; Falcon Ridge Townhomes Owners’
Association Inc.; and 814 Sand Inc. have filed answers; Defendant Concrete Paving Grading LLC,
is in default.
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Agreement”), which is referenced in the Note and the Mortgage.2 The Development
Agreement includes a forum-selection clause, requiring that any action related to the
loan documents “shall” be litigated in Clark County, Nevada.3
Falcon Ridge has filed a Motion to Dismiss, arguing that the forum selection
clause in the Development Agreement, which is part of the loan document package,
governs this dispute and requires litigation only in Clark County, Nevada. ECF Nos.
26, 27 (motion and memorandum of law). All Western opposes the motion, arguing
that it is not suing on the Development Agreement but only on the Note and
Mortgage and that the foreclosure on real property located in Bay County, Florida,
cannot be adjudicated in Nevada, nor can the lien priorities be determined in a
Nevada court, which would lack jurisdiction over the property and the junior
lienholders. ECF No. 30.
All Western is correct. The Nevada venue provision is not applicable to the
Mortgage or the Note, each of which includes its own default provisions, pertains to
2 The Note and the Mortgage each sets out the events of default and both reference obligations that
are established in the Development Agreement.
3 The forum-selection clause within the Development Agreement provides that the borrower and
lender consent to litigation in any state or federal court in Clark County, Nevada, where all
proceedings arising out of the agreement or other loan documents “shall be litigated.” ECF No.
1–1 at 17 ¶ 12.6. Additionally, the Parties agreed to waive any defense of forum non conveniens
regarding the Nevada venue. Id. Oddly and inconsistently, the Note and Development Agreement
specify Nevada law as governing, ECF No. 1–1 at 3 ¶ 9 & at 17 ¶ 12.6, whereas an Addendum to
the Development Agreement specifies that Florida law governs, ECF No. 1–3.
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real property located in Florida, and requires a determination of the priority of liens
with 	regard 	to 	potential 	additional 	lienholders 	who 	are 	subject 	to 	personal
jurisdiction in Florida. 	The Complaint does not seek damages for breach of the
Development Agreement.
Even assuming the forum-selection clause applies because it is incorporated
by reference into the Note and Mortgage, it is unenforceable under state law.4 See
Declan Flight, Inc. v. Textron Eaviation, Inc., 177 F.4th 1110, 1122 (11th Cir. 2026)
(setting out a 2-step process to determine whether a forum-selection clause is valid,
considering (1) applicability based on state law, and (2) enforceability based on
federal common law). 	Florida law provides that an out-of-state venue provision is
void as a matter of public policy in a contract for improvement to real property that
requires a legal action arising out of that contract against a resident contractor,
subcontractor, or materialman. 	See Fla. Stat. 47.025. By statute, such a suit must
be brought in Florida where the property or defendant are located, or where the cause
of action accrued, unless the parties stipulate otherwise after the dispute arises. See
id. (emphasis added). Falcon Ridge is a developer that borrowed money pursuant to
this loan agreement for the purpose of making improvements to real property and is
4 The Note, Mortgage and Development Agreement each includes a severability clause preserving
all other provisions in the event any provision is determined to be unenforceable.
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alleged to be in default and to have failed to complete the work. Other Defendants
are contractors or subcontractors alleged to be Florida citizens and who may have a
lien interest. Therefore, the provision is void.
Moreover, to the extent the forum-selection clause somehow could be
considered a valid agreement between the Parties, the motion must be denied
applying the forum non conveniens analysis. The doctrine of forum non conveniens
is the appropriate means of enforcing a forum-selection clause, “which allows a
district court to decline to exercise its jurisdiction when a foreign forum is better
suited to adjudicate the dispute.” 	Declan Flight, Inc., 177 F.4th at 1121 (internal
quotations omitted). But “the calculus changes” from the usual analysis where there
is a valid forum-selection clause. 	Id. (internal quotations omitted). 	Under the
modified analysis outlined by the Supreme Court, “the plaintiff bears the burden of
establishing 	that 	transfer 	to 	the 	forum 	for 	which 	the 	parties 	bargained 	is
unwarranted,” the “valid forum-selection clause should be given controlling weight
in all but the most exceptional cases,” and the district court should only consider
“public-interest considerations.” Atl. Marine Constr. Co. v. U.S. Dist. Ct. for the
W.D. of Texas, 571 U.S. 49, 63–64 (2013); see also Declan Flight, 177 F.4th at 1121.
This 	case 	presents 	the 	exceptional 	situation 	where 	the 	public-interest
considerations preclude transfer. 	At worst, a transfer in this instance would leave
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the Nevada court with nothing to adjudicate because the dispute involves real
property in Florida and junior lienholders in Florida, over which that court would
not have jurisdiction. 	At best, the Nevada court could determine the money
judgment but additional litigation in Florida would still be required to establish the
priority between lienholders and to foreclose on the real property. 	This type of
piecemeal and duplicative litigation would result in colossal additional delay and an
inefficient waste of judicial resources, contrary to the public interest. 	And, as
already discussed, Florida law expressly voids this type of out-of-state venue
provision in these circumstances, see Fla. Stat. 47.025.
Accordingly, 	Defendant 	Falcon 	Ridge 	Townhomes, 	LLC’s 	Motion 	to
Dismiss, ECF Nos. 26, 27, is DENIED.
DONE AND ORDERED this 22nd day of July 2026.
M. Casey Rodgers
M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE
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