KENNETH D. ROSEN AND HARVEY M. ROSEN, TRUSTEES, APPELLANTS,
v.
GEORGE G. HUNTER AND BARBARA C. HUNTER, HIS WIFE; E. E. SWARTSWELTER AND MARTHA H. SWARTSWELTER, HIS WIFE, AND J. H. EARLY, APPELLEES
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The court addressed a motion concerning the issuance of a certificate of title following a foreclosure sale and a subsequent reversal of an order vacating that sale, ultimately framing the issue as one of equity of redemption.
The court determined it could not answer the certified question due to a lack of prior judicial determination but would address the issue of equity of redemption based on the appellant's motion.
Following a foreclosure sale where the Rosens were successful bidders, the Swartswelters paid the full amount due to redeem their property. The trial …
The full statement of facts, procedural history, and disposition for this case are member content.
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Kenneth D. Rosen and Harvey M. Rosen, trustees, have moved for an order on the mandate which was filed pursuant to the opinion originally rendered in this cause, Rosen v. Hunter, Fla.App.1969, 224 So.2d 371. The original position of the parties in trial was as follows: the Swartswelters, appellees herein, were the defendants in a foreclosure action brought by the Hunters as plaintiffs. The Rosens, appellants herein, were intervenors below, having been successful bidders at the judicial sale of foreclosure.
Final default judgment of foreclosure on real estate owned by the Swartswelters was entered on March 8, 1968. Within the judgment, there was no specific provision setting forth a time certain within which the equity of redemption on the property would be available and exercisable by the Swartswelters; however, the judgment did provide that the equity of redemption would be barred by confirmation of the sale. Pursuant to the court’s order, foreclosure sale was held on March 27, 1968, at which time the property was purchased by the inter-venors. Objections to the sale were filed by the Swartswelters, and after a hearing thereon the chancellor entered his order vacating the sale on May 8, 1968.
The original appeal was taken by the Rosens in their capacity as intervenors. Their appeal was successful, and this court rendered its decision, supra, on June 24, 1969. On July 8, 1969, the clerk of the lower court reported that he had received an amount from the Swartswelters representing the total amount due under the final judgment of foreclosure, and construed the payment of that amount as the satisfaction of said final judgment and redemption of the equity in the property. However, on July 11, 1969, the clerk received the mandate from this court which reversed that order of the trial court vacating the sale. Thus, the conflict was framed as between the original mortgagors, Swartswelters, who moved in the trial court for an order directing the clerk to disburse the money they had tendered for the purpose of redeeming their mortgage; and the Rosens, who as intervenors filed the motion sub judice in this court requesting that the clerk of the trial court be directed to issue the certificate of title to the subject property in compliance with the foreclosure sale proceedings.
The trial judge, being presently faced with this controversy, has certified the question to us for resolution. At the onset, we note that we cannot answer the certified question since there has been no prior judicial determination by the court certifying it to us. Jordan v. Aetna Insurance Company, Fla.App.1968, 172 So.2d 483; Rosenberg v. Ryder Leasing, Inc., Fla.App.1964, 159 So.2d 873. However, the appellant’s motion, framing the issues for our resolution, will suffice to invoke this court’s jurisdiction for purposes of settling the issue regarding equity of redemption. Eg., McCutchen v. Hillman, Fla.App.196S, 177 So.2d 893; D. E. R. Company v. Warriner, Fla.App.1963, 156 So.2d 183.
We find merit in the position taken by the Swartswelters. Initially, we recognize that the order of reversal which emanated from this court in the case contained in 224 So.Zd 371, supra, was not effective as a confirmation of the sale since the mandate in that case reached the clerk of the court at a time subsequent to the original attempt of the Swartswelters to redeem their equity. Cf. Morgan v. Williams, 85 Fla. 219, 95 So. 611, 28 A.L.R. 1020; Lehman v. Spencer Ladd’s Inc., Fla. App.1966, 185 So.2d 198. Moreover, it must first be noted that the right to redemption is an inherent incident to any mortgage. Quinn Plumbing Company v. New Miami Shores Corporation, 100 Fla. 413, 129 So. 690; 73 A.L.R. 600. In the case of Van Huss v. Prudential Insurance Company of America, 123 Fla. 20, 165 So. 896, the court *691therein held that where a foreclosure judgment does not state a particular period in which the mortgage indebtedness must be satisfied, the privilege of redemption by the mortgagor of his equity in the property may be exercised as a matter of right at any time prior to the issuance of the master’s deed to the purchaser at a foreclosure sale, unless the court should by its further decree otherwise specifically direct.
The above holding was further confirmed in the case of Holloway v. Sewell, 140 Fla. 464, 191 So. 825, wherein the court held that the right of redemption may be exercised at any time before the chancellor places his stamp of approval on the actual foreclosure sale, which approval is generally done by the entry of the order confirming the master’s report of the foreclosure sale.
The above authorities have convinced us that this court should deny the motion of the appellants. Therefore, the motion for order on the mandate is hereby denied.
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Allstate Mortg. Corp. OF Fla. & Inca Int'l Corp. v. Strasser, 277 So. 2d 843 (Fla. 3d DCA 1973)…trial court. Quinn Plumbing Company v. New Miami Shores Corporation, 100 Fla. 413, 129 So. 690; Huss v. Prudential Insurance Company of America, 123 Fla. 20, 165 So. 896; Holloway v. Sewell, 140 Fla. 464, 191 So. 825; Rosen v. Hunter, Fla.App.1969, 227 So. 2d 689. This right of redemption evolved from the [*845] common law. Connor v. Connor, 59 Fla. 467, 52 So. 727. § 45.031(1), Fla.Stat., F.S.A., as now amended is clearly in derogation of the common law and must be strictly construed. However, it will not…
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The First Nat'l Bank & Tr. Co. v. Great Am. Ins. Co., 257 So. 2d 73 (Fla. 2d DCA 1972)…842. Also, before an appellate Court may properly be called upon to answer a question certified to it by F.A.R. 4.6, there must have been a prior judicial determination by the trial Court of the question so certified. Rosen v. Hunter, Fla.App.1969, 227 So. 2d 689; Pridgeon v. Folsom, Fla.App.1965, 174 So. 2d 619. The words of the venerable Justice Glenn Terrell of the Supreme Court in Schwob Co. of Florida v. Florida Industrial Commission, 1942, 152 Fla. 203, 11 So. 2d 782, are apropos here: “The appellate…
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Dock Roberts and Lorene Roberts v. J. I. Kislak Mortg. Corp. of Fla., 257 So. 2d 599 (Fla. 4th DCA 1972)…uant to a “final determination” of Kislak’s motion, and was subsequently approved by the trial court. The trial court could have validly concluded that such issuance was authorized, and that under the rule set forth in Rosen v. Hunter, Fla.App.1969, 227 So. 2d 689, the Roberts’ right of equitable redemption had passed. The mortgagor and mortgagee are in reality here trying a second time to persuade this court to relieve them of the consequences of the failure of Kislak’s attorneys to attend the sale of the p…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Quinn Plumbing Co., Inc. v. New Miami Shores Corp., 100 Fla. 413 (Fla. 1930)
- Lucky Nation, LLC v. Al-Maghazchi (Fla. 4th DCA 2020)
- Van Huss v. The Prudential Ins. Co. of Am., 123 Fla. 20 (Fla. 1936)
- Rosen v. Hunter, 224 So. 2d 371 (Fla. 3d DCA 1969)
- Rosenberg v. Ryder Leasing, Inc., 159 So. 2d 873 (Fla. 3d DCA 1964)
- Holloway v. Sewell, 140 Fla. 464 (Fla. 1939)
- Jordan v. AETNA Ins. Co., 172 So. 2d 483 (Fla. 1st DCA 1965)
- D. E. R. Co. v. Warriner, 156 So. 2d 183 (Fla. 3d DCA 1963)
- McCUTCHEN v. Hillman, 177 So. 2d 893 (Fla. 3d DCA 1965)
- Morgan v. Williams, 85 Fla. 219 (Fla. 1922)