EDWARD CERRITO AND JOAN R. CERRITO, APPELLANTS,
v.
JACQUELINE R. KOVITCH AND ED-JO CORP. OF FLORIDA, INC., A FLORIDA CORPORATION, APPELLEES

Fla. 4th DCA | 1981-12-09
No. 81-1609
LETTS, C. J., and HERSEY and HURLEY, JJ., concur.
406 So. 2d 125 Florida District Court of Appeal, Fourth District (1981)

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Synopsis

The Fourth District Court of Appeal reversed a trial court's order requiring appellants to post a supersedeas bond equal to the outstanding mortgage balance plus 15% to stay a foreclosure sale pending appeal. The court held that Florida Appellate Rule 9.310(b)(1)'s automatic bond provision applies only to unsecured money judgments, not to foreclosure judgments secured by mortgage, and remanded for the trial court to apply the more flexible general rule under 9.310(a).


Holding

A supersedeas bond in a foreclosure case is governed by the general rule in Florida Appellate Rule 9.310(a), not the exception in 9.310(b)(1) which applies only to unsecured money judgments. The trial court must consider the fair market value of the property, other liens, and potential waste or damages when determining the appropriate bond amount.


Headnotes

[1] A supersedeas bond pending review of a foreclosure judgment may be conditioned upon posting a bond, other conditions, or both, under Rule 9.310, Florida Rules of Appellat…

[2] A final judgment in foreclosure is not an order solely for the payment of money for the purpose of automatic stay provisions under Rule 9.310(b)(1), Florida Rules of Appe…

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Key Quotes

“A judgment for recovery of money otherwise secured, as by a mortgage on real property, calls into play the general rule set out in (a) rather than the exception contained in (b).”

Establishes that secured money judgments like foreclosures are governed by the general discretionary rule, not the automatic 115% bond exception.

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Facts & Procedural History

Edward and Joan Cerrito mortgaged real property to Jacqueline Kovitch and Ed-Jo Corp. of Florida. A final judgment in foreclosure was entered against …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We are asked to review an order requiring the mortgagors to post a supersedeas bond in an amount equal to the outstanding balance owed on a promissory note (secured by mortgage) plus fifteen percent thereof. Supersedeas is sought to stay the foreclosure sale of real property pending appeal of a final judgment in foreclosure.

Rule 9.310, Florida Rules of Appellate Procedure establishes as a general rule that “A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.” The trial court is thereby given considerable latitude in controlling the circumstances under which the proceedings may be stayed pending review.

We are none-the-less concerned that the trial court here may have been misled and may have felt compelled to apply a standard more severe than our interpretation of the rule requires.

This rule (Rule 9.310, supra) replaces former appellate rules 5.1 through 5.12. Under the former rules specific provisions were made for “Bond Where Judgment is for Recovery of Money Not Secured” (Rule 5.7); “Bond When Judgment is for Recovery of Money Otherwise Secured” (Rule 5.8); and “Bond When Judgment is Other Than for Money” (Rule 5.9).

Translating these categories into the present unified rule we believe that the exception contained in 9.310(b)(1) to the effect that “when the order is solely for the payment of money, a stay pending review is automatic ... on posting of a good and sufficient bond equal to the amount ordered to be paid, plus 15% thereof ...” is intended to supplant former Rule 5.7 only. In our view a judgment for recovery of money otherwise secured, as by a mortgage on real property, calls into play the general rule set out in (a) rather than the exception contained in (b). This conclusion is reinforced by the fact that a final judgment in foreclosure is not an order “solely for the payment of money.” We therefore grant the motion for review. Proceedings in the lower tribunal are hereby stayed pending further order of that court.

Because of the rationale upon which we base reversal it is not necessary to determine whether, under the circumstances, bond in the amount of $35,000 constitutes an abuse of discretion per se. Nor would we be in a position to make such a determination even if it were ripe for consideration. No facts have been brought forward to this Court establishing the present fair market value of the property, the extent of other liens, if any, or waste or other damages which may be occasioned by delay. The trial court, on remand, will necessarily consider each of those factors and perhaps others in determining the amount of bond and conditions to be imposed. Our review of any subsequent order establishing bond would necessarily require examination of the trial court’s findings on each of the pertinent factors.

We reverse the order of October 14, 1981 and remand for further proceedings in accordance with the foregoing. The rationale of Fidelity & Deposit Co. of Maryland v. Atlantic National Bank, 234 So. 2d 736 (Fla.3d DCA 1970) while not necessarily controlling, may be helpful. The stay we here impose shall terminate upon entry of a further order by the trial court establishing the terms of supersedeas.

REVERSED AND REMANDED.

LETTS, C. J., and HERSEY and HURLEY, JJ., concur.


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