Third District Court of Appeal
State of Florida
Opinion filed August 2, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1162
Lower Tribunal No. 16-13956
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Coastwide Services, LLC,
Appellant,
vs.
Carolyn Goldberg,
Appellee.
An Appeal from non-final orders from the Circuit Court for Miami-Dade
County, John Schlesinger, Judge.
Robert C. Meyer, for appellant.
Jerome L. Tepps and William A. Treco (Sunrise), for appellee.
Before SUAREZ, SALTER and LOGUE, JJ.
SALTER, J.
Coastwide Services, LLC (“Coastwide”), defendant and mortgagor in a
circuit court foreclosure action, appeals orders denying its right to exercise its
statutory right of redemption (section 45.0315, Florida Statutes (2016)).1 The
mortgagee and plaintiff below, Carolyn Goldberg, and Best Investment, LLC
(“Best Investment”), a third-party purchaser at the foreclosure sale conducted by
the circuit court Clerk, opposed Coastwide’s efforts to redeem.
We affirm in part, and reverse and remand the orders in part, based on the
plain language of the redemption statute and the tangled procedural occurrences at
and after the foreclosure sale. The pertinent events were:
1. The final judgment of foreclosure specified that the encumbered property
would be sold by electronic sale beginning at 9:00 a.m. on February 15, 2017. The
trial court denied a last-ditch motion by Coastwide to reschedule the sale earlier
that morning.
1 § 45.0315. Right of Redemption.
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, or if no judgment, order, or
decree of foreclosure has been rendered, by tendering the performance
due under the security agreement, including any amounts due because
of the exercise of a right to accelerate, plus the reasonable expenses of
proceeding to foreclosure incurred to the time of tender, including
reasonable attorney's fees of the creditor. Otherwise, there is no right
of redemption.
2
2. The sale records report that the property was sold to Best Investment for
$140,300.00 at 10:08 a.m. on that date. The final judgment amount in favor of Ms.
Goldberg was $82,164.08.
3. At 10:09 a.m. on the same date, a co-owner of the encumbered property,
Blackstone Capital Strategies (“Blackstone”), filed a Chapter 7 bankruptcy in the
United States Bankruptcy Court for the Southern District of Florida. On February
23, 2017, Blackstone filed an objection to the foreclosure sale of the property to
Best Investment based on the Blackstone bankruptcy filing, alleging that the
bankruptcy filing occurred prior to the conclusion of the electronic sale.
4. The bankruptcy filing was irregular (Blackstone was a corporation and
the petition, completed in handwriting, was filed by a non-lawyer agent of
Blackstone) and the petition was later determined by the Bankruptcy Court to have
been filed in bad faith. In the order ultimately dismissing and closing the
Blackstone case, the Bankruptcy Court vacated the automatic stay, 11 U.S.C. §
362, nunc pro tunc to the date the petition was filed. In effect, this rendered the
bankruptcy a nullity insofar as the foreclosure action was concerned.
5. Meanwhile, the Clerk of Court did not issue the certificate of sale of the
property to Best Investment, presumably because the Clerk had been made aware
of the Blackstone bankruptcy. Coastwide’s officer maintains that he made
multiple efforts to vacate the sale and to redeem the property at the Clerk’s office.
3
Coastwide’s officer filed an objection to the sale and a motion to vacate the sale
and certificate of sale on February 24, 2017.
6. The trial court denied these motions and a subsequent motion by
Coastwide to exercise the right of redemption. Ms. Goldberg filed motions to
ratify the February 15, 2017, foreclosure sale to Best Investment and to award her
post-judgment interest and attorney’s fees.
The trial court denied the Coastwide motions, ratified the sale, and granted
Ms. Goldberg’s motion to direct the Clerk to issue the certificates of sale and title.
Coastwide appealed, and we stayed the trial court orders pending further order of
this Court.
Analysis
Coastwide’s co-owner, Blackstone, plainly disrupted the normally-routine
foreclosure sale process. The Clerk is alleged to have declined to allow a
redemption payment without a court order in light of the bankruptcy stay and other
concerns. But when the smoke cleared, (a) Coastwide has not yet demonstrated a
true “tender” of the redemption amount computed in accordance with the final
judgment of foreclosure, and (b) no certificate of sale has been “filed” within the
meaning of section 45.0315. On such a record, the trial court and this Court are
presently unable to apply the statute according to its plain meaning.
4
We thus affirm the trial court’s ratification of the foreclosure sale conducted
by the Clerk without knowledge of the Blackstone bankruptcy, but we reverse and
remand the orders insofar as they deny Coastwide an opportunity to redeem the
property before the certificate of sale is actually filed. See De Sousa v. JP Morgan
Chase, N.A., 170 So. 3d 928, 931 (Fla. 4th DCA 2015); In re Hill, 305 B.R. 100,
111 (Bankr. M.D. Fla. 2003). On remand, the parties may file further motions to:
(1) compute the adjusted redemption amount (awarding post-judgment interest
and, to the extent applicable, Ms. Goldberg’s attorney’s fees and costs incurred as
a result of the delays and proceedings following the sale), and (2) direct the Clerk
to issue and file the certificate of sale to Best Investment if the adjusted redemption
amount has not been paid to the Clerk within ten days after the order fixing the
adjusted redemption amount has been entered.2 We vacate our order granting
Coastwide’s emergency motion for stay pending appeal entered June 8, 2017.
Affirmed in part; reversed and remanded for further proceedings in
accordance with this opinion.
2 If the adjusted redemption amount is not timely paid, the certificate of title will
also follow as provided by section 45.031(5), Florida Statutes (2016).
5