Branch Banking & Trust Co. v. Tomblin

• Decision Date: 15 May 2015
• Docket Number: No. 5D13–3181.,5D13–3181.
• Citation: 163 So.3d 1229
• Parties: BRANCH BANKING AND TRUST COMPANY, etc., Appellant, v. Chester TOMBLIN, Individually, et al., Appellees.
• Court: Florida District Court of Appeals

163 So.3d 1229

BRANCH BANKING AND TRUST COMPANY, etc., Appellant

v.Chester TOMBLIN, Individually, et al., Appellees.

No. 5D13–3181.

District Court of Appeal of Florida, Fifth District.

May 15, 2015.

W. Glenn Jensen and Christopher D. Donovan, of Roetzel & Andress, LPA, Orlando, for Appellant.

Jacob D. Flentke and Theodore D. Estes, of Divine & Estes, P.A., Orlando, for Appellee.

Opinion

PER CURIAM.

Appellant, Branch Banking and Trust Co. (“BB & T”), appeals a final summary judgment of foreclosure that determines as the successor in interest of AmericanFirst Bank, Appellee, TD Bank, holds a first-priority equitable lien superior to any claim of BB & T and has the right to credit bid at the foreclosure sale. We affirm in most respects, but reverse that portion of the final judgment granting TD bank the right to credit bid at the foreclosure sale.

Credit bidding is a judicially created right granted to the first mortgagee upon foreclosure of the mortgage. The Florida Supreme Court explained the right in Tucker v. Crown Corp., 136 Fla. 517, 183 So. 740, 745 (1938) :

The first mortgagee should be accorded, in the decree, the right to bid at such sale to the amount ascertained to be due on the first mortgage debt, and the same (authorized in the decree) be credited to the amount of such successful bid made by such mortgagee or his privy, by contract, or estate, or of blood, if he desires to bid. If a subsequent mortgagee or lienholder is the successful bidder, he should be required to pay in cash the amount to secure or necessary to discharge all prior liens and costs before being credited with the amount of his lien on his bid.

Id. (quoting Becker Roofing Co. v. Wysinger, 220 Ala. 276, 124 So. 858, 863 (1929), overruled in part, Becker Roofing Co. v. Jones, 225 Ala. 638, 144 So. 865, 866 (1932) ). Credit bidding is allowed because “no useful purpose [is] served in requiring a bondholder or a mortgagor to pay cash to a court officer conducting a judicial sale when he would be entitled to immediately have it paid back to him under the decree authorizing the sale.” Grable v. Nunez, 66 So.2d 675, 677 (Fla.1953). However, credit bidding would not appear to be available to a senior mortgagee that has not foreclosed its mortgage. Senior mortgagees are not necessary or indispensable parties to a suit to foreclose a junior mortgage. Garcia v. Stewart, 906 So.2d 1117, 1120 (Fla. 4th DCA 2005). Moreover, the senior creditor's interest remains with the property after the...