B. THERESA PEREZ, APPELLANT,
v.
PATRICIA M. KOSSOW, APPELLEE

Fla. 3d DCA | 1992-08-04
No. 92-733
Before HUBBART, FERGUSON and COPE, JJ.
602 So. 2d 1372 Florida District Court of Appeal, Third District (1992) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In a mortgage foreclosure case, the trial court set aside a satisfaction of judgment when a foreclosure clerk's computational error resulted in Perez paying less than the full redemption amount owed. The appellate court reversed, holding that while Perez cannot benefit from the clerk's mistake, she must be given an opportunity to tender the correct redemption amount to properly exercise her right of redemption.


Holding

Perez is not entitled to benefit from the clerk's mistake at Kossow's expense, but she must be given the opportunity to pay the full correct redemption amount plus costs and attorney's fees. The trial court's orders setting aside the satisfaction of judgment and directing issuance of a certificate of title are reversed.


Headnotes

[1] A mortgagor should be permitted to tender the correct redemption amount after a foreclosure clerk erroneously calculates a lower amount due.

[2] A party should not be prevented from exercising their right of redemption due to a foreclosure clerk's error in computation.

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Key Quotes

“[T]he law favors redemption by anyone who has an interest in the mortgaged premises who would be a loser by foreclosure.”

Establishes the fundamental principle supporting Perez's right to redeem despite the clerk's error

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Facts & Procedural History

A final judgment of foreclosure was entered in favor of Kossow against Perez, the mortgagor. Perez obtained an order postponing the foreclosure sale t…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Perez claims in this appeal that the trial court interfered with her right of redemption in a mortgage foreclosure action. On a holding that the trial court should have allowed Perez to tender the correct amount owed, after a foreclosure clerk directed her to pay an incorrect redemption amount, we reverse the trial court’s orders setting aside a satisfaction of judgment and directing the clerk of court to issue a certificate of title to Kossow. We affirm the judgment insofar as it rejected Perez’s contention that she was entitled to benefit from the clerk’s mistake at Kossow’s expense.

A final judgment of foreclosure of a mortgage was entered in favor of Kossow. Perez, the mortgagor, subsequently obtained an order postponing the completion of the foreclosure sale in order to close on a pending contract for the sale of the property to a third party and to exercise her right of redemption.1 In accordance with the court’s order, Perez redeemed her mortgage and received a satisfaction of judgment. However, due to a foreclosure clerk’s error in computation, the mortgage redemption amount paid by Perez was less than the mortgage debt and costs as reflected in the judgment of foreclosure. Kossow’s attorney objected to the deficiency and filed a motion requesting the court to set aside the satisfaction of judgment and issue a certificate of title to the property to Kossow. The trial court granted Kos-sow’s motion.

On appeal, Perez argues that she should be required to pay only the amount calculated by the foreclosure clerk, even though the amount is insufficient to satisfy the debt or, in the alternative, she should be permitted to tender the correct redemption amount and obtain a satisfaction of judgment. We agree that she should be given the opportunity to pay the correct amount required to redeem the mortgage.

“[T]he law favors redemption by anyone who has an interest in the mortgaged premises who would be a loser by foreclosure.” John Stepp, Inc. v. First Fed. Sav. & Loan Ass’n, 379 So. 2d 384, 386 (Fla. 4th DCA 1980) (citing Dundee Naval Stores Co. v. McDowell, 65 Fla. 15, 61 So. 108 (1913)). Perez paid the redemption amount calculated by the foreclosure clerk and should not now be prevented from exercising her right of redemption due to the clerk’s error. Nevertheless, the litigation was protracted because of her merit-less alternative argument that Kossow was estopped to collect the $1500 deficiency owing to the clerk’s mistake. Perez is not entitled to a “bargain price” mortgage debt based on the clerk’s incorrect calculation.

A mortgage foreclosure is an equitable action. Southern Floridabanc Fed. Sav. & Loan Ass’n v. Buscemi, 529 So. 2d 303 (Fla. 4th DCA 1988); Redding v. Stockton, Whatley, Davin & Co., 488 So. 2d 548 (Fla. 5th DCA), caused dismissed, 492 So. 2d 1334 (Fla.1986). Neither party should reap unfair benefit from the foreclosure clerk’s mistake. In order to do justice between the parties, the case is remanded to allow Perez thirty days to pay the full mortgage redemption price, plus court costs and reasonable attorney’s fees.

Affirmed in part, reversed in part, and remanded for further consistent proceedings.

. Neither the final judgment of foreclosure nor the subsequent order postponing the foreclosure sale are the subject of this appeal. The appeal from the final judgment of foreclosure is pending before this court, case no. 91-2856.


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Citator

Cited By

  • CSB Realty, Inc. v. Eurobuilding Corp., 625 So. 2d 1275 (Fla. 3d DCA 1993)
    …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 (Fla. 3d DCA 1986); R.G.C., 348 So. 2d at 621; 59 C.J.S. Mortgages § 848 (1949); cf. Perez v. Kossow, 602 So. 2d 1372 (Fla. 3d DCA 1992) (mortgagor not entitled to redeem property for amount less than mortgage debt and costs due to incorrect calculation by clerk). The trial court erred in entering the order under review. Accordingly, we reverse and remand for furth…

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