Abdoney v. York
| Decision Date | 13 May 2005 |
| Docket Number | No. 2D04-5257.,2D04-5257. |
| Citation | 903 So.2d 981 |
| Parties | Emmett ABDONEY, Appellant, v. Janetta YORK, as Trustee with rights to manage, mortgage, or sell, Appellee. |
| Court | Florida District Court of Appeals |
Emmett Abdoney, pro se.
David A. Townsend and Anita C. Brannon of Townsend & Brannon, Tampa, for Appellee.
Emmett Abdoney seeks review of (1) the final summary judgment in favor of Janetta York in Abdoney's mortgage foreclosure action and (2) the final order that awarded York attorney's fees and costs. Because the trial court erred in determining that Abdoney's junior lien was extinguished by the filing of a certificate of sale in a prior foreclosure action concerning the same property, we reverse. In accordance with this ruling, we reverse the award of prevailing party attorney's fees and costs to York.
Emmett Abdoney, a practicing attorney, was given a second mortgage by Jason and Betty Peterson for $12,000 in attorney's fees and costs that they owed Abdoney. For personal reasons, Abdoney promised the Petersons that he would not foreclose the second mortgage. The Petersons failed to make payments on their first mortgage with Amerivest Corporation, and Amerivest instituted a foreclosure action against the Petersons and three junior lienors, one of which was Abdoney.
Abdoney entered into an agreement with Amerivest to buy out the first mortgage. Amerivest voluntarily dismissed Abdoney from the foreclosure suit, and the parties filed a joint stipulation for substitution of plaintiff. The court ordered the substitution, and Abdoney amended the foreclosure complaint but did not include himself in his capacity as a junior lienor.
The trial court entered a final judgment of foreclosure awarding Abdoney $11,269.27, and ordered a judicial sale. The final judgment did not specify a deadline for redemption. York was the successful bidder with a bid of $15,100, and the clerk filed a certificate of sale.
Shortly thereafter, Abdoney sent York a letter demanding satisfaction of his junior lien. In response, York filed a motion to declare junior lienor with notice barred in Abdoney's foreclosure action, which the court denied as premature. Abdoney subsequently made an offer and tendered a payment to York to either buy York out for her interest in the property or for her to buy Abdoney out. Additionally, Abdoney tendered payment as an offer of settlement in an attempt to preclude York from instituting foreclosure proceedings. York did not respond to Abdoney's offers.
Abdoney then filed a foreclosure action under a new case number. Abdoney's complaint sought (1) foreclosure against the Petersons, (2) foreclosure against York, (3) redemption, and (4) lien foreclosure. York filed an answer and counterclaim for (1) declaratory judgment, (2) quiet title, and (3) slander of title.
York subsequently filed a renewed motion to declare junior lienor with notice barred in the first foreclosure action. Abdoney moved to strike the motion to declare junior lienor barred for lack of standing, but the court denied the motion. The two cases were consolidated.
After a hearing, the court entered an order granting York's motion to declare junior lien barred. The court determined that Abdoney's junior lien was extinguished by the filing of the certificate of sale in the first foreclosure action. Both parties thereafter filed motions for summary judgment, and Abdoney filed a motion for rehearing of the court's order granting York's motion to declare junior lienor barred. York voluntarily dismissed her slander counterclaim. The court granted York's motion for final summary judgment and denied Abdoney's. The court also awarded York attorney's fees and costs pursuant to sections 57.041 and 57.105(1), Florida Statutes (2003), and an attorney's fee provision in the foreclosed mortgage.
On appeal, Abdoney argues that the trial court erred in granting York's motion for summary judgment and denying his motion for summary judgment because his junior lien was unaffected by the foreclosure sale. We agree and reverse and remand for further proceedings in Abdoney's foreclosure action.
Under the common law, the foreclosure of a senior mortgage extinguishes the liens of any junior mortgagees listed in the final judgment. Pinellas County v. Clearwater Fed. Sav. & Loan Ass'n, 214 So.2d 525, 527 (Fla. 2d DCA 1968). Thus, a junior mortgagee's right of redemption ceased at the entry of the final judgment of foreclosure if the junior mortgagee was made a party to the foreclosure of a senior mortgage. Shipp Corp., Inc. v. Charpilloz, 414 So.2d 1122, 1123 (Fla. 2d DCA 1982); Credithrift, Inc. v. Knowles, 556 So.2d 775, 777 (Fla. 1st DCA 1990); Islamorada Bank v. Rodriguez, 452 So.2d 61, 63 (Fla. 3d DCA 1984); Glendale Fed. Sav. & Loan Ass'n v. Guadagnino, 434 So.2d 54, 54 (Fla. 4th DCA 1983). In 1993, the legislature enacted section 45.0315, Florida Statutes, which lengthened the time for redemption by a junior mortgagee to "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." This statute abrogated the common law on the issue of the availability of redemption. Emanuel v. Bankers Trust Co., 655 So.2d 247, 249 (Fla. 3d DCA 1995).
When a junior mortgagee is omitted as a party to the foreclosure of a senior mortgage, the lien of the junior mortgagee is unaffected by the judgment. Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690, 692 (1930); Hollingsworth v. Arcadia Citrus Growers Ass'n, 154 Fla. 399, 18 So.2d 159, 162 (1944); T-R Indian River Orange Co. v. Keene, 124 Fla. 343, 168 So. 408, 409 (1936). This is so because Grant S. Nelson, Real Estate Finance Law, § 7.15, at 573 (4th ed. 2001). The...
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...Co., 719 So. 2d 999, 1001 (Fla. 5th DCA 1998) (citing Riley v. Grissett, 556 So. 2d 473, 475 (Fla. 1st DCA 1990)).[36] Abdoney v. York, 903 So. 2d 981, 984 (Fla. 2d DCA 2005) (citing Burns v. Bankamerica Nat'l Trust Co., 719 So. 2d 999, 1001 (Fla. 5th DCA 1998)).[37] Fla. Stat. § 45.0315. H......
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...and who will be directly affected by an adjudication in such an action, are necessary parties to the suit"); see also Abdoney v. York, 903 So. 2d 981, 983 (Fla. 2d DCA 2005) (finding that "when a junior mortgagee is omitted as a party to the foreclosure of a senior mortgage, the lien of the......