GORDON AKELEY, APPELLANT,
v.
ELLIOT L. MILLER, APPELLEE
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A junior mortgagee who was not a party to a senior mortgage foreclosure has the right to redeem the foreclosed property from the purchaser at the foreclosure sale before the sale is confirmed by certificate of title. The court affirmed the trial court's determination that such redemption rights existed and the sale should not be confirmed.
Yes. A junior mortgagee omitted from a foreclosure proceeding has the right of redemption against the purchaser at the senior mortgage foreclosure sale. This right exists and may be freely exercised until the sale is confirmed by execution and filing of a certificate of title.
[1] A junior mortgagee not made a party to a senior mortgage foreclosure action retains the right to redeem the property from the senior mortgage purchaser.
[2] The right of redemption in a mortgage foreclosure sale may be exercised until the sale is confirmed by the execution and filing of a certificate of title.
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Join FLexlaw to unlock all legal intelligence“When a foreclosure sale is conducted and the junior mortgagee is not a party to the proceedings, the purchaser at the foreclosure sale takes the premises sub ject to the omitted junior mortgagee's right to redeem from the senior mortgage.”
Establishes the core holding that junior mortgagees omitted from foreclosure have redemption rights against the purchaser
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Join FLexlaw to unlock all legal intelligenceAkeley purchased property at a foreclosure sale of a senior mortgage. Before the sale was confirmed and a certificate of title issued, the circuit cou…
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The appellant was the purchaser at a foreclosure sale. After the sale had been completed, but before it had been confirmed and certificate of title issued, the clerk of the circuit court accepted the payment of the sum specified in the final judgment and issued a certificate of redemption. The appellant then filed a petition in the trial court in which he prayed that the certificate of redemption be set aside and the sale be confirmed. The court denied appellant’s petition and issued an order directing that all monies paid by the appellant as purchaser be returned to him. This appeal is from that order. It is apparent that a similar situation is unlikely to arise in the future because of the change in Fla.Stat. § 45.031, F.S.A., as amended by Chapter 71-5, Laws of Florida, 1971, which eliminates the ten day period after a sale during which redemption may occur. Since the statutory change took effect. January 1, 1972, we feel that a full discussion of the facts of this case is not required. See Trawick, Real Property Law Reform in Florida, 45 Fla.B.J. 402 (1971).
The appellee is the holder of a junior mortgage on the subject property. He timely exercised a claimed right of redemption if the right existed. Therefore, the only question of law to be decided on this appeal is: Does a junior mortgagee have a right of redemption against a purchaser at a foreclosure sale upon the foreclosure of a senior mortgage when the junior mortgagee is not made a party to the foreclosure of the senior mortgage? The trial judge correctly determined that the right of redemption did exist under these circumstances, and no error has been demonstrated. When a foreclosure sale is conducted and the junior mortgagee is not a party to the proceedings, the purchaser at the foreclosure sale takes the premises sub*474ject to the omitted junior mortgagee’s right to redeem from the senior mortgage. See Quinn Plumbing Co. v. New Miami Shores Corporation, 100 Fla. 413, 129 So. 690 (1930); 2 Wiltsie on Mortgage Foreclosure § 1149 (4th ed. 1927) ; 9 Thompson on Real Property § 4822 (1958).
The right of redemption exists and may be freely exercised until the sale is confirmed by the execution and filing of a certificate of title. See Rosen v. Hunter, Fla.App.1969, 227 So.2d 689; 5 Tiffany, Real Property § 1500 (3rd ed. 1939). Cf. Roy v. Matheson, Fla.App.1972, 4th D.C.A., 263 So.2d 604.
Affirmed.
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Citator
Cited By
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Riley v. W.E. Grissett, Jr., 556 So. 2d 473 (Fla. 1st DCA 1990)…we find no authority which would permit a mortgagor, junior mortgagee, or other interested person a right of redemption after a certificate of title has issued even if the party was not named in the foreclosure suit. See generally Akeley v. Miller, 264 So. 2d 473, 474 (Fla. 3d DCA 1972) (a junior mortgagee, which was omitted from the original foreclosure suit, may exercise its right to redeem “until the sale is confirmed by the execution and filing of a certificate of title.” (citing Rosen v. Hunter, 227 .So…
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Marriott v. Milan Schultheis, 553 So. 2d 1316 (Fla. 3d DCA 1989)…91 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 ho…
Authorities Cited
- Quinn Plumbing Co., Inc. v. New Miami Shores Corp., 100 Fla. 413 (Fla. 1930)
- Lucky Nation, LLC v. Al-Maghazchi (Fla. 4th DCA 2020)
- Rosen v. Hunter, 227 So. 2d 689 (Fla. 3d DCA 1969)
- Gardner v. State, 263 So. 2d 604 (Fla. 4th DCA 1972)