ROBERT MARRIOTT AND LELIA MARRIOTT, APPELLANTS,
v.
MILAN SCHULTHEIS, CHRISTINA SCHULTHEIS AND MILAN MOTORS, INC., APPELLEES
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BASKIN, Judge.
Finding that no genuine issue of material fact remains for decision, we affirm the summary judgment. See Holl v. Talcott, 191 So. 2d 40 (Fla.1966). A mortgagor, has a right of redemption of the realty until certificate of title is issued to another. See Allstate Mortgage Corp. v. Strasser, 277 So. 2d 843 (Fla. 3d DCA), aff'd, 286 So. 2d 201 (Fla.1973); Akeley v. Miller, 264 So. 2d 473 (Fla. 3d DCA), cert. denied, 269 So. 2d 369 (Fla.1972); Cooper Smith Properties, Ltd. v. Flower’s Baking Co. of Fla., Inc., 432 So. 2d 683 (Fla. 5th DCA), petition for review dismissed, 438 So. 2d 831 (Fla.1983). In this case, Marriott “sold” his home to Schultheis on February 26, 1982. Unfortunately, the Mishkins had already purchased the property in foreclosure and assigned their interest to Schultheis. The certificate of title was issued on the 21st of February, a full 5 days before the Marriott-Schultheis sale. Thus, at the time Marriott purported to sell his home to Schultheis, his right of redemption had been extinguished. The Mishkins’ purchase of the property at foreclosure sale obviates the need to decide whether Schultheis promised to pay Marriott $60,000.
Affirmed.
JORGENSON, J., concurs.
COPE, Judge
(dissenting).
With respect to a somewhat complicated commercial transaction between the parties, the plaintiff/appellant alleged, in part, that he had loaned defendant/appellee Schultheis $60,000 which Schultheis had orally promised to repay. Appellee Milan Motors, Inc. had issued compensation checks to appellant Marriott in the amount of $60,000, which Marriott endorsed to Schultheis. Appellant Marriott paid the income taxes on the $60,000 amount. Appel-lee Schultheis concedes that he used the proceeds of the endorsed checks to purchase Marriott’s former home from the buyer at a foreclosure sale.
Appellant Marriott has testified under oath that there was an oral agreement by Schultheis to repay the $60,000. Schultheis has submitted an affidavit in which he says there was no such agreement. The appel-lees position that there was no equity of redemption in the property subsequent to the foreclosure misses the point. The $60,-000 amount was used for acquisition of the property. The flow of funds corresponds to Marriott’s account of the transaction. On this record there are disputed issues of material fact with respect to the oral agreement, and alternatively a claim for unjust enrichment to the extent of income taxes paid by Marriott. I would reverse the summary judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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CCC Props., Inc. v. Kane, 582 So. 2d 159 (Fla. 4th DCA 1991)…r to exercise his right of redemption. Cooper Smith Prop. v. Flower’s Baking Co., 432 So. 2d 683 (Fla. 5th DCA 1983). The right of redemption is extinguished if not exercised prior to the issuance of the certificate of title. Marriott v. Schultheis, 553 So. 2d 1316 (Fla. 3d DCA 1989). In this case the mortgagors redeemed the property through payment to the mortgagee of the entire amount of the judgment. The satisfaction of mortgage and judgment and the deed transferring the property were recorded prior to the…
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CSB Realty, Inc. v. Eurobuilding Corp., 625 So. 2d 1275 (Fla. 3d DCA 1993)…d 620 (Fla. 4th DCA 1977), that a mortgagor does not have an absolute right to redeem its property for the foreclosure sale bid. Although the mortgagor holds a right to redeem the property prior to foreclosure sale, Marriott v. Schul- [*1276] theis, 553 So. 2d 1316, 1317 (Fla. 3d DCA 1989); § 45.031(1), Fla.Stat. (1991), it is well-settled law that the mortgagor must pay the mortgage debt.1 CCC Properties, Inc. v. Kane, 582 So. 2d 159, 161 (Fla. 4th DCA 1991); Engels v. Valdesuso, 497 So. 2d 698, 699 n. 1 (Fl…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Allstate Mortg. Corp. OF Fla. v. Strasser, 286 So. 2d 201 (Fla. 1973)
- Allstate Mortg. Corp. OF Fla. & Inca Int'l Corp. v. Strasser, 277 So. 2d 843 (Fla. 3d DCA 1973)
- Cooper Smith Props., Ltd. v. Flower's Baking Co. OF Fla., Inc., 432 So. 2d 683 (Fla. 5th DCA 1983)
- Akeley v. Elliot L. Miller, 264 So. 2d 473 (Fla. 3d DCA 1972)
- Saffir v. S. Bell Tel. & Tel. Co., 269 So. 2d 369 (Fla. 1972)
- Croteau v. Arnold, 269 So. 2d 369 (Fla. 1972)