2275 NE 120 STREET, LLC v. SANCHEZ STRUVE BUSINESS ADVISORS, LLC

Third District Court of Appeal
State of Florida
Opinion filed November 10, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1277
Lower Tribunal No. 17-8408
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2275 NE 120 Street, LLC,
Appellant,
vs.
Sanchez Struve Business Advisors, LLC,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Barbara
Areces, Judge.
Cardet Law, P.A., and Alberto M. Cardet; Birnbaum, Lippman &
Gregoire, PLLC, and Nancy W. Gregoire Stamper (Fort Lauderdale), for
appellant.
Dennis A. Donet, P.A., and Dennis A. Donet, for appellee.
Before EMAS, MILLER, and LOBREE, JJ.
MILLER, J.
Appellant, 2275 NE 120 Street, LLC, the mortgagor, challenges an
order denying its motion to vacate a judicial foreclosure sale and directing
the clerk to issue the certificate of title to the successful bidder at the sale,
appellee, Sanchez Struve Business Advisors, LLC, the mortgagee. On
appeal, the mortgagor contends the failure by the court to reduce the amount
of indebtedness in the final judgment by the net funds derived from a myriad
of prior unsuccessful foreclosure sales effectively prevented it from
exercising its right of redemption. Discerning no error, we affirm.
BACKGROUND
In late 2017, the mortgagee obtained a final summary judgment of
foreclosure against the mortgagor. Although the mortgagor did not challenge
the validity of the judgment, it sought bankruptcy protection immediately after
rendition. After the bankruptcy stay was lifted, the final judgment was
amended several times to account for additional expenses incurred, and six
consecutive public foreclosure sales ensued.
At each of the first five sales, conducted between February 2019 and
December 2019, an affiliate or principal of the mortgagor was deemed the
winning bidder. Following each sale, “final payment [was] not made within
the prescribed period.” § 45.031(3), Fla. Stat. (2021). The clerk of courts
deducted permissible costs and released remaining funds, totaling
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approximately $155,000.00, to the mortgagee, by means of a stipulated court
order. See id.
By the time of the sixth and final sale, the final judgment, as amended,
reflected indebtedness in the amount of nearly $600,000.00. The mortgagee
received a credit bid in the amount of the judgment, and, after bidding
approximately $400,000.00, was named the winning bidder. The record is
devoid of any indication the mortgagor sought to exercise its redemption
rights either before or during the sale. No objection to the sale was filed,
and, on March 5, 2020, the clerk filed the certificate of sale.
Four months later, the mortgagor filed a motion to vacate the sale. In
the motion, it contended the failure by the trial court to reduce the
indebtedness reflected in the final judgment by the amounts released to the
mortgagee following the prior incomplete sales negatively impacted its right
of redemption. Concluding the mortgagor had neither filed a timely objection
nor established it was “ready, willing, and able” to exercise the right of
redemption, the trial court denied the motion. The instant appeal ensued.
STANDARD OF REVIEW
We review a trial court’s ruling on a motion to set aside a foreclosure
sale for a gross abuse of discretion. U.S. Bank, N.A. v. Vogel, 137 So. 3d
491, 493 (Fla. 4th DCA 2014).
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ANALYSIS
Tracing its origins to Roman civil law, the now statutorily circumscribed
right of redemption “is an incident of all mortgages and cannot be
extinguished except by due process of law.” John Stepp, Inc. v. First Fed.
Sav. & Loan Ass’n of Miami, 379 So. 2d 384, 386 (Fla. 4th DCA 1980);
Thomas W. Bigley, Property Law—The Equity of Redemption: Who Decides
When it Ends?, 21 Wm. Mitchell L. Rev. 315, 317 (1995) (“[T]he equity of
redemption principle found in English mortgage law originated under Roman
civil law.”). Historically, the right of redemption did not extend beyond the
sale date. Parker v. Dacres, 130 U.S. 43, 47 (1889). Thus, “[i]t is clear that
the right to redeem after sale, wherever it exists, is statutory.” Id. at 48.
In Florida, the right of redemption is codified within section 45.0315,
Florida Statutes. The statute provides, in pertinent part:
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 . . . .
Otherwise, there is no right of redemption.
§ 45.0315, Fla. Stat. In interpreting the reach of the statute, the Florida
Supreme Court has determined, “a ‘sale’ can still be ‘prevent[ed]’ even after
the public auction.” Bank of N.Y. Mellon v. Glenville, 252 So. 3d 1120, 1129
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(Fla. 2018) (alteration in original). Unless otherwise provided in the operative
judgment, however, “the right to redeem expires when the clerk files the
certificate of sale.” Indian River Farms v. YBF Partners, 777 So. 2d 1096,
1099 (Fla. 4th DCA 2001).
In the instant case, the judgment provided that “[o]n filing the Certificate
of Sale, [the mortgagor’s] right of redemption as proscribed by Florida
Statutes, Section 45.0315 shall be terminated.” The certificate of sale was
filed on March 5, 2020, and, despite having notice of the previously released
funds, there has been no showing the mortgagor attempted to satisfy the
mortgage prior to that date or objected within the statutorily prescribed ten-
day window following the sale. See § 45.031(5), Fla. Stat.
Instead, four months later, the mortgagor filed an unverified motion to
vacate the sale. In the motion, it did not allege it was hindered in its ability
to satisfy the indebtedness. Rather, it asserted in a relatively conclusory
manner that its “redemption rights [were] inappropriately and negatively
impacted by improper calculations,” and the mortgagee “was given an unfair
advantage of being able to credit bid its judgment for an amount higher than
what was actually owed.”
It is true a mortgagor need not obtain the permission of the trial court
before exercising the right of redemption. See Saidi v. Wasko, 687 So. 2d
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10, 12 (Fla. 5th DCA 1997). In this regard, because no proceedings are
ordinarily required to render redemption effective, the right has been termed
self-executing. 72 Am. Jur. 2d State and Local Taxation § 889. It is equally
true, however, that the right must be timely claimed by tendering the amount
due and owing within the statutorily prescribed period, or “there is no right of
redemption.” § 45.0315, Fla. Stat.
Here, the mortgagor neither alleged nor adduced facts supporting the
proposition that it was prevented from tendering the indebtedness, as
reduced by the amounts derived from the prior incomplete sales. Instead,
the protracted litigation history suggested the opposite conclusion. The
mortgagor had ample opportunity over the span of two years to tender
payment and did not do so, and it further failed to timely object to the
procedure of the sale.
Given these circumstances, we conclude the trial court acted within its
discretion in denying the motion to vacate and ordering the clerk to issue the
certificate of title. See § 45.031(5), Fla. Stat. (“If no objections to the sale
are filed within 10 days after filing the certificate of sale, the clerk shall file a
certificate of title and serve a copy of it on each party.”). Accordingly, we
affirm the order under review.
Affirmed.
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