Waterview Towers Yacht Club-The Ultimate, etc. v. Saeid C. Givianpour First City etc. , 159 So. 3d 174 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WATERVIEW TOWERS NOT FINAL UNTIL TIME EXPIRES TO
YACHT CLUB - THE FILE MOTION FOR REHEARING AND
ULTIMATE, OWNERS' DISPOSITION THEREOF IF FILED
ASSOCIATION, INC.,
Appellant,
v. CASE NO. 1D14-3478
SAEID C. GIVIANPOUR; FIRST
CITY BANK OF FLORIDA AND
HANCOCK BANK,
SUCCESSOR IN INTEREST TO
PEOPLES FIRST COMMUNITY
BANK,
Appellees.
_____________________________/
Opinion filed February 5, 2015.
An appeal from the Circuit Court for Okaloosa County.
Keith Brace, Judge.
John Cottle and Jay Roberts of Becker & Poliakoff, P.A., Fort Walton Beach, for
Appellant.
Richard M. Colbert, Gulf Breeze, for Appellees.
ROBERTS, J.
The Appellant, homeowners’ association Waterview Towers Yacht Club,
appeals the trial court’s order granting the property owner’s motion to enforce
redemption of property. The property owner filed the motion to enforce redemption
after a certificate of sale was filed and the property in question was sold. The
Appellant argues that the right to redemption was extinguished when the certificate
of sale was filed. We agree and reverse.
FACTS
On April 9, 2013, the Appellant filed a suit to foreclose a claim of lien for
condominium assessments owed by the property owner. On March 7, 2014, a final
judgment was entered ordering the property owner to pay the total amount owed or
the property would be sold at public auction. The final judgment specifically
provided that the property owner would be foreclosed of all claims on the property
once the certificate of sale was filed. One month later, on April 11, 2014, the clerk
of court filed a certificate of sale, and the property in question was sold at public
auction to the Appellant. On April 16, 2014, the property owner obtained a loan for
the full amount of the judgment and sought to tender the amount to the Appellant.
The Appellant refused the tender, and the property owner filed a motion to enforce
redemption of the property. Without explanation, the trial court granted the motion
to enforce redemption.
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MERITS
“The right of redemption is a valued and protected equitable right of the
mortgagor to reclaim his estate in foreclosed property after it has been forfeited, at
law, by paying the amount of the debt, interests and costs.” Indian River Farms v.
YBF Partners, 777 So. 2d 1096, 1099 (Fla. 4th DCA 2001). Section 45.0315, Florida
Statutes, governs the right of redemption and provides:
At any time before the later of the filing of a certificate of sale by the
clerk of the court or the time specified in the judgment, order, or decree
of foreclosure, the mortgagor or the holder of any subordinate interest
may cure the mortgagor's indebtedness and prevent a foreclosure sale
by paying the amount of moneys specified in the judgment, order, or
decree of foreclosure, or if no judgment, order, or decree of foreclosure
has been rendered, by tendering the performance due under the security
agreement, including any amounts due because of the exercise of a right
to accelerate, plus the reasonable expenses of proceeding to foreclosure
incurred to the time of tender, including reasonable attorney's fees of
the creditor. Otherwise, there is no right of redemption.
This section applies to foreclosures of homeowners’ association
liens. See Chase Fin. Servs., LLC v. Edelsberg, 129 So. 3d 1139, 1141 n. 2 (Fla. 3d
DCA 2013) (citing to section 720.3085(1)(c), Florida Statutes (2013) (providing that
an “association may bring an action in its name to foreclose a lien for assessments
in the same manner in which a mortgage of real property is foreclosed”)).
Where a final judgment provides that a right of redemption would be
terminated upon the filing of the certificate of sale, any payment made after the filing
of the certificate of sale does not entitle the owner to have the foreclosure sale set
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aside. See id. at 1142 (holding that the owner was not entitled to have the foreclosure
sale set aside on the basis of his purported tender of payment to the association
because that payment was made a month after the certificate of sale was filed). Here,
in accordance with section 45.0315, Florida Statutes, the final judgment provided
that the property owner’s right of redemption in the property was extinguished upon
the filing of the certificate of sale. As such, the right to redeem was extinguished
when the certificate of sale was filed on April 11, 2014. There is no evidence that
the property owner tendered payment to the Appellant at any time before April 11,
2014. In fact, the property owner admits he did not obtain the money to satisfy the
judgment until April 16, 2014. At this point, the right of redemption was
extinguished.
The trial court did not provide its reasoning for granting the property owner’s
motion to enforce redemption. The property owner argued in a memorandum of law
to the court that he was not owed a right of redemption, but that under the equitable
concepts of fairness and justice, he was entitled to the equity of redemption. The
property owner also makes this argument in his Answer Brief and cites to a Fourth
District Court of Appeal case for the proposition that the equity of redemption differs
from the right of redemption. Hoffman v. Semet, 316 So. 2d 649 (Fla. 4th DCA
1975). However, the Fourth District does not make this statement. The court states:
Under Florida law, which has adopted the lien theory of mortgages, a
mortgagor holds legal title to the mortgaged property while the
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mortgagee's interest is merely that of a lienor. However, as in many
areas of the law, historical vestiges of another era persist. The strict
common law view of the mortgage was as a conditional conveyance of
land vesting legal title in the mortgagee. Upon default, the mortgagor
forfeited all right and interest in the property; the mortgagee could
simply reenter and assume full ownership. In time the equity courts
responded to this harsh result by granting the mortgagor the right to
redeem his property upon satisfying the outstanding debt. This right
was termed the mortgagor's ‘equity of redemption’. The equity of
redemption eventually came to be regarded as an actual estate in land,
i.e., the mortgagor's estate or interest in the mortgaged property.
Id. at 651-52 (internal citations omitted). From this language, the court appears to
merely be explaining the history of redemption and not demarcating a difference
between equity of redemption and the right of redemption. As explained by the
Fourth District, the equity of redemption is the mortgagor’s right to redemption. Id.
Thus, the property owner fails to cite any authority for its proposition that the
trial court properly acted when it granted the motion to enforce redemption after the
time period for redemption had expired.
REVERSED AND REMANDED.
RAY and MAKAR, JJ., CONCUR.
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