MORRIS WALTERS AND JOICE WALTERS, HIS WIFE, APPELLANTS,
v.
LAWRENCE F. GALLMAN AND PATRICIA J. GALLMAN, HIS WIFE, APPELLEES
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The court addresses whether a debtor's right of redemption in a foreclosure sale must be exercised before the actual sale date or can extend until the certificate of title is issued. The court holds that redemption rights persist until the certificate of title is issued, adopting the common law rule that 'sale' is not complete until ownership transfers.
The right of redemption must be exercised before the issuance of the certificate of title, not merely before the day of the sale. The common law right of redemption prevails over a narrow statutory interpretation, and ownership does not transfer until the certificate of title is issued ten days after the sale date.
[1] A mortgagor may exercise the right of redemption at any time before the issuance of a certificate of title, even after the foreclosure sale.
[2] The common law right of redemption prevails unless a statute clearly and unambiguously changes it.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In cases when a person has an equity of redemption, the court shall not specify a time for the redemption, but the person may redeem the property at any time before the sale.”
The statutory provision at issue regarding when redemption rights must be exercised
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Join FLexlaw to unlock all legal intelligenceDefendants owned property that was foreclosed and sold pursuant to a judgment of foreclosure. Within ten days after the certificate of sale was filed …
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MAGER, Judge.
The facts pertinent to the, disposition of this appeal reflect that defendants, subsequent to the foreclosure sale of their property pursuant to a judgment of foreclosure and within ten days after the filing of a certificate of sale but prior to the issuance of a certificate of title, filed objections to said foreclosure sale and sought to exercise their right of redemption. From an order overruling defendants’ objections to the sale and the issuance of a certificate of title (and in effect precluding the exercise of the right of redemption) this appeal ensued.
Essentially, the question presented for this court’s determination is whether the right of redemption must be exercised “before the sale”, as set forth in F.S. Section 45.031(1), F.S.A., which provides, in part, as follows:
“In cases when a person has an equity of redemption, the court shall not specify a time for the redemption, but the person may redeem the property at any time before the sale.” (Emphasis added.)
The identical question was considered by the Third District in Allstate Mortgage Corp. of Florida v. Strasser, Fla.App.1973, 277 So. 2d 843. We adopt the rationale of Strasser wherein the court, in concluding that redemption may be granted subsequent to the day of sale, observed, in part:
“. . . Inasmuch as that portion of the statute pertaining to time of redemption does not clearly change the common law right of redemption up until confirmation of the sale, we must hold the common law rule prevails.
“. . .we hereby find that the Legislature intended to adopt the recognized meaning of the word ‘sale’ and that the sale did not take place until ownership of the property was transferred. Said transfer takes place according to § 45.-031(3), Fla.Stat., F.S.A., ten days after the day of the sale, upon no objections being filed thereto and issuance of the certificate of title.
“Based on the foregoing, we find the trial court had the power to grant a right of redemption up until the issuance of a certificate of title. . . .” (Emphasis added.)
Cf. Roberts v. J. I. Kislak Mortgage Corporation, Fla.App.1972, 257 So. 2d 599.
Defendants having sought to exercise their right of redemption subsequent to sale but prior to the issuance of a certificate of title, the order appealed from must be reversed and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.
WALDEN and DOWNEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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John Crescent, Inc. v. Collins E. Peterson and Margaret E. Peterson, 401 So. 2d 1150 (Fla. 4th DCA 1981)…e court shall not specify a time for the redemption, but the person may redeem the property at any time before the sale. The term “before the sale” has been interpreted to be anytime until the issuance of a certificate of title. Walters v. Gallman, 286 So. 2d 275 (Fla. 4th DCA 1973); Allstate Mortgage Corporation of Florida, supra. We are aware of one instance after adoption of the amendment in which the period of redemption was extended beyond the ten day period that separates the judi [*1152] cial sale an…
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Metroplex Invs., Inc. v. Precision Equity Invs., Inc., 647 So. 2d 304 (Fla. 5th DCA 1994)…1), Fla.Stat. (1991). This section has been interpreted to mean anytime until issuance of a certificate of title. See John Crescent, Inc. v. Peterson, 401 So. 2d 1150 (Fla. 4th DCA 1981), review denied, 412 So. 2d 469 (Fla.1982); Walters v. Gallman, 286 So. 2d 275 (Fla. 4th DCA 1973) (redemption may be granted subsequent to the day of sale, up until the issuance of a certificate of title). In this case, the property was redeemed by the Cavanaughs before the certificate of title was issued. The judicial sale…
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Done Invs. v. Forman, 369 So. 2d 650 (Fla. 3d DCA 1979)…n our opinion, the trial court could properly within its discretion extend the mortgagor’s period for redemption. Although we are unaware of any cases directly on point on this issue, we are persuaded by the reasoning set forth in Walter v. Gallman, 286 So. 2d 275 (Fla. 4th DCA 1973), and Allstate Mortgage Corporation of Florida v. Strasser, 277 So. 2d 843 (Fla. 3d DCA 1973), and Florida Rule of Civil Procedure 1.550(b) as it relates to stays. See also Rosen v. Hunter, 277 So. 2d 689 (Fla. 3d DCA 1969). Accor…
Authorities Cited
- Allstate Mortg. Corp. OF Fla. & Inca Int'l Corp. v. Strasser, 277 So. 2d 843 (Fla. 3d DCA 1973)
- Dock Roberts and Lorene Roberts v. J. I. Kislak Mortg. Corp. of Fla., 257 So. 2d 599 (Fla. 4th DCA 1972)