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.

________________

No. 3D20-1277 Lower Tribunal No. 17-8408 ________________

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.

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

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).

4

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