SHUBH HOTELS BOCA, LLC, AND ATUL BISARIA, APPELLANTS,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR MUTUAL BANK (ILLINOIS); AND NEIL MERIN, AS COURT APPOINTED RECEIVER FOR MORTGAGED PROPERTY, APPELLEES
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The court reversed a trial court order allowing a receiver to sell mortgaged hotel property before final judgment in a foreclosure action. The court held that neither the mortgage agreement nor Florida law granted the receiver authority to sell the property prior to foreclosure judgment, absent explicit contractual authorization.
The court held that the receiver lacked authority to sell the mortgaged property before final judgment. The mortgage agreement's receivership provision explicitly limited the receiver's powers to protecting, preserving, and operating the property and collecting rents—roles that did not include a power of sale. Florida common law similarly provides that appointment of a receiver does not confer a power of sale, and recognizing such power would contravene the mortgagor's statutory right of redemption.
[1] A court-appointed receiver in a mortgage foreclosure action generally lacks the authority to sell the mortgaged property before a final judgment of foreclosure, absent sp…
[2] The powers of a receiver appointed in a mortgage foreclosure action are typically limited to protecting and preserving the property and collecting rents, unless the mortg…
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Join FLexlaw to unlock all legal intelligence“with the power to protect and preserve the Mortgaged Property, to operate the Mortgaged Property preceding foreclosure or sale, and to collect the Rents from the Mortgaged Property and apply the proceeds, over and above the cost of receivership, against the indebtedness.”
This language from the mortgage agreement's receivership provision explicitly enumerated the receiver's limited powers and demonstrated the parties' intent to exclude a power of sale before final judgment.
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Join FLexlaw to unlock all legal intelligenceIn February 2008, a lender made a $28.8 million refinancing and construction loan to the owner, secured by a mortgage on a 180-room hotel in Boca Rato…
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The owner/mortgagor (owner) and an alleged guarantor appeal a non-final order allowing a receiver to sell the mortgaged property before final judgment in the foreclosure action. The receiver was appointed in the foreclosure action at the request of the mortgagee.1 Because we conclude that the creditor and receiver have not demonstrated lawful authority for such a sale over the objection of the record owner before final judgment foreclosing the owner’s interest in the property, we reverse.
These are the pertinent facts. The mortgaged property is a 180-room hotel in Boca Raton. In February 2008, the lender made a $28.8 million refinancing and construction loan to owner secured by a mortgage on the hotel along with its rents and profits.2 The loan allocated $21 million to *165refinancing and the balance, for construction, was to be disbursed later under specified conditions.
In April 2009 lender gave owner written notice of acceleration, claiming that a January 2009 installment was missed and that the entire balance was not paid at the end of term. It also cited an installment returned for lack of sufficient funds. .Owner alleges that no default ever occurred and that the notice failed to comply with the loan requirements.
Lender filed its complaint to foreclose the mortgage in mid May 2009. All of its claims relate to liability under the debt created by the loan. Along with its initial pleading the lender moved for the appointment of a receiver. The mortgage provided for the appointment of a receiver upon default for the purpose of preserving the real property and appurtenances, to protect the property during foreclosure proceedings, and to collect rents.3 The trial court appointed the receiver and placed him in control of all assets of the owner wherever located. The order did not authorize the receiver to sell the mortgaged property before a final judgment of foreclosure.
In January 2010 the receiver reported to the court that the property was in a distressed condition, the operation of the hotel was losing $28,000 monthly, and that he was unable to raise borrowed funds to continue operation. That led to lender’s motion to sell the property as soon as a buyer could be found. In May 2010, the trial court granted lender’s motion and authorized the receiver to market the property and to cease operation of the hotel.
Simultaneously with the foregoing proceedings, the lender filed a motion for summary judgment which the court denied. Meanwhile the case has been set for trial and the lender’s right to foreclose remains at issue.
In June 2010 the receiver reported a willing buyer for $9 million. Owner objected to the sale, arguing there is no legal authority for the receiver to sell the property and that he could not convey good title. After an evidentiary hearing in July 2010 the court entered the order authorizing the sale.
We have jurisdiction to review the non-final order because it would result in the immediate transfer of possession and ownership of the subject property even though issues remain on the foreclosure claim.4 And because the issue presented is purely one of law, the correct standard of review is de novo.5
We begin the authority question by noting that lender has not cited any statute *166specifically applying to the circumstances we face here and authorizing a court appointed receiver in a foreclosure case to sell the mortgaged property before the mortgage is foreclosed by final judgment.6 In the absence of such a statute, we must find such authority in the loan agreement between the lender and borrower represented by the promissory note and mortgage.
With regard to the appointment of a receiver upon default by owner, the mortgage states as follows:
SECTION 5.04 Mortgagee in Possession; Foreclosure Proceedings and Receiver.
(a) Upon [default] Mortgagee shall have the right to be placed as mortgagee in possession or to have a receiver appointed to take possession of all or any part of the Mortgaged Property, with the power to protect and preserve the Mortgaged Property, to operate the Mortgaged Property preceding foreclosure or sale, and to collect the Rents from the Mortgaged Property and apply the proceeds, over and above the cost of receivership, against the indebtedness. The mortgagee in possession or receiver may serve without bond if permitted by law. Lender’s right to the appointment of a receiver shall exist whether or not the apparent value of the Mortgaged Property exceeds the indebtedness by a substantial amount. Employment by Mortgagee shall not disqualify a person from serving as a receiver.
As we read this provision, the critical terms respecting the power and authority of any appointed receiver are:
“with the power to protect and preserve the Mortgaged Property, to operate the Mortgaged Property preceding foreclosure or sale, and to collect the Rents from the Mortgaged Property and apply the proceeds, over and above the cost of receivership, against the indebtedness.”
It is plain to us that this receivership provision does not purport to give the receiver any power of sale of mortgaged property before the entry of judgment foreclosing the mortgage. Indeed, it explicitly limits the receiver’s powers to a caretaker role — “to protect and preserve the Mortgaged Property” — which includes the authority only to operate the property and collect rents.
Because the specification in the mortgage of only certain delimited receivership powers strongly implies the deliberate exclusion of other more extensive powers, it is apparent to us that no receiver power of sale before final judgment was ever intended in the agreement between the parties on this mortgage loan. The manifest intent of their agreement excluding such a power of sale similarly leads us to reject as inapposite those cases recognizing broad general powers in equity that could allow such a receiver to sell mortgaged property before foreclosure.7
As the contract between the parties failed to grant an explicit power to sell the mortgaged property during foreclosure proceedings before judgment, we also con*167sider Florida common law as to such general receivership powers. But as owner points out, the general Florida rule is that the mere appointment of a receiver does not itself confer any of the owner’s power or authority to sell such property.8 Also the general Florida rule is that the role of a receiver in a foreclosure action is only to preserve the property’s value.9
Moreover every mortgagor has a statutory right of redemption, made part of every mortgage, which continues even after a post-judgment foreclosure sale until issuance of a certificate of sale by the clerk of court conducting the sale.10 Recognizing a general interim power of a receiver to sell mortgaged property in a foreclosure case would contravene these statutory rights and principles.
In light of the foregoing we hold that the trial court order allowing and approving a sale by the receiver before final judgment was error. We quash the orders and remand for consistent proceedings.
Reversed.
POLEN and DAMOORGIAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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MB Plaza, LLC v. Wells Fargo Bank, 72 So. 3d 205 (Fla. 2d DCA 2011)…to a foreclosure could agree that a sale by receiver would be appropriate, a sale by a receiver is ordinarily improper and, even if authorized, should be carefully watched by the court. See, e.g., Shubh Hotels Boca, LLC v. Fed. Deposit Ins. Cotrp., 46 So. 3d 163 (Fla. 4th DCA 2010) (quashing trial court order that allowed and approved a sale by the receiver before final judgment of foreclosure); Fugazy Travel Bureau, Inc. v. State, 188 So. 2d 842, 844 (Fla. 4th DCA 1966) (recognizing that "there are instanc…
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Grand Palace View, LLC v. 5 AIF Maple 2, LLC (Fla. 3d DCA 2019)…Help Cmty. Dev. Corp. v. Ciras, LLC, 144 So. 3d 578, 581 (Fla. 4th DCA 2014) (“Because the parties’ arguments turn on an interpretation of section 702.10(2)(f), our standard of review is de novo.”); Shubh Hotels Boca, LLC v. Fed. Deposit Ins. Corp., 46 So. 3d 163, 165 (Fla. 4th DCA 2010). IV. ANALYSIS “[A]ll deeds of conveyance conveying or selling property for the purpose, or with the intention, of securing the payment of money, shall be deemed and held as mortgages, and shall be subject to the same rules…
Authorities Cited
- Degge v. The First State Bank of Eustis, 145 Fla. 438 (Fla. 1941)
- Cone-Otwell-Wilson Corp. v. Commodore's Point Terminal Co., 94 Fla. 448 (Fla. 1927)
- Indian River Farms v. YBF P'rs, 777 So. 2d 1096 (Fla. 4th DCA 2001)
- Eppes v. Dade Developers, Inc., 126 Fla. 353 (Fla. 1936)
- Vanderbilt Towers v. Summit Props., 379 So. 2d 384 (Fla. 2d DCA 1979)
- John Stepp, Inc. v. First Fed. Sav. & Loan Ass'n OF Miami, 379 So. 2d 384 (Fla. 4th DCA 1980)
- Alafaya Square Ass'n, Ltd. v. Great W. Bank, 700 So. 2d 38 (Fla. 5th DCA 1997)
- Morris v. Osteen, 948 So. 2d 821 (Fla. 5th DCA 2007)
- Harbeson v. State, 964 So. 2d 809 (Fla. 4th DCA 2007)
- Arzuman v. Shamsah Saud, 964 So. 2d 809 (Fla. 4th DCA 2007)