In a Nutshell The Foreclosure Process in Florida by xln10969

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									             In a Nutshell: The Foreclosure Process in Florida

Stage I. The Note & Mortgage
Every foreclosure case starts at the closing table when the owner of the real property
in question takes title. Usually, the property is bought at this time with funds that
are borrowed by the new owner. In other situations the owner pays cash to buy the
property and later borrows money using the property as collateral, or the owner
might refinance the loan used to purchase the property, or might take out a second
loan or equity line, repayment of which is secured by the title to the property.
Regardless of which situation applies in a given case, the result is the same: the
person or persons who own the property (takes title to it) signs a note promising to
repay a loan of money (a “Promissory Note”). Repayment of the note is secured
with collateral: the real property in question. This security in the collateral is called a
“Mortgage”. Because the person borrowing the money is using the property as
collateral that person is the “Mortgagor”. The lender is the “Mortgagee”.


Stage II. The Loan Goes Into Default
At some point in the foreclosure process the borrower does not make a payment
required under the Promissory Note, and may begin to miss a number of payments.
Usually the Mortgagee (the lender) will attempt to get the borrower to catch up with
the amount owed. If this proves unsuccessful there are measures that might be
taken, such as a Short Sale, a Loan Modification to make the loan more
affordable, re-structuring payments, and other ways to avoid a foreclosure. When
these do not work soon enough for the lender, the note and mortgage are turned
over to an attorney or law firm to begin the formal process of Foreclosure.


Stage III. The Complaint
The lender files a Complaint to Foreclose with the court where the property in
question is located. The attorney prepares the complaint and attaches the note and
mortgage as exhibits. The complaint names the lender as the Plaintiff and the
owner of the property and everyone who signed the note (usually these are one and
the same) as well as every person who has a lien or some other interest in the
property, as Defendants. The defendants would include any second (or even third)
mortgage holder, anyone holding title to the property, contractors who filed liens for
work done, homeowner or condo associations, and tenants. The complaint alleges
facts concerning the note and that a mortgage was recorded against the property,
and asks the court to determine how much is owed for principal and interest under
the Promissory Note, as well as other costs the borrower has Liability to pay by
virtue of the note, such as legal fees, insurance and taxes paid by the lender.
The complaint also asks the judge to order that the property in question be sold to
satisfy the amount owed, and might ask the judge to enter a money judgment,
sometimes called a deficiency judgment, if the amount the lender realizes from the
sale of the property does not cover the full amount owed under the Promissory Note.
When the complaint is filed the attorney also files a paper called a Lis Pendens
which is recorded by the clerk of court. This paper acts as a notice to any interested
party that litigation is pending that concerns the property in question and that any
rights the interested party might attempt to obtain to the property will be subject to
the outcome of the litigation. In this case, the outcome is the transfer of title to the
property, either to the lender or some other person who bids at the foreclosure sale.

BRET SHAWN CLARK, PA ▪121 North McCall Road Englewood Florida 34223
              (941) 460-9100 ▪ bret.clark@comcast.net
             In a Nutshell: The Foreclosure Process in Florida
Stage IV. The Foreclosure Litigation
After the complaint and Lis Pendens are filed with the court, a Summons is issued
that explains to the borrower and all the other people named as defendants that a
lawsuit has been filed – which is attached to the summons – and that they have 20
days to file a written response to the complaint. The summons and complaint are
“Served” on each defendant. This usually means a sheriff or process server hands
these papers to the defendant, or they are left at the place where the defendant lives
in the care of a person who lives there also that was present when the papers were
delivered. The defendant then has 20 days from that date to file an answer.
If a defendant does not answer the complaint the attorney for the lender files a
paper with the court to enter a “Default” against that defendant. If a default is
entered, that defendant is deemed to have consented to the facts stated in the
foreclosure and waives any rights they have to contest the foreclosure as well as the
right to be notified of any further steps that are taken in the case.
If a defendant files an answer to the complaint and there is a dispute as to facts that
are relevant to the case, the case is set for a trial. The parties to the case also get
to conduct an investigation of the facts, called “Discovery”, to prepare for trial. At
the trial a judge hears the evidence and then decides the facts and the outcome of
the case. Usually this does not happen - rarely is there a trial in foreclosure cases.
If no defendant files an answer and they are all defaulted, or if the answers do not
raise a valid defense, papers are submitted to the judge by the attorney for the
lender to enter a judgment of foreclosure. The judgment is either by default (when
no one answers) or by Summary Judgment (when answers are filed but there is no
valid defense). In the case of a summary judgment, there will be a hearing with the
judge, and everyone who was not defaulted in the case is notified of the hearing.


Stage V. The Foreclosure Judgment
Except in very unusual and extremely rare cases, the judge enters either a default or
summary judgment of foreclosure, or enters the judgment after a trial. The
judgment determines how much is owed to the lender under the Promissory Note,
including principal, interest, advances made to protect the property (such as
insurance and taxes), and the legal costs incurred by the lender for the case.
The Judgment of Foreclosure then directs the clerk to set a date for the sale of
the property and to advertise the sale at least one time a week for two weeks in a
local newspaper. The judgment states that the property in question will be offered
to the highest cash bidder at the sale. This is sometimes called an “auction” by lay
persons but to avoid confusion it is better to refer to this as a “Foreclosure Sale”.


Stage VI. The Foreclosure Sale
At the appointed hour the property in question is offered to anyone in attendance
who wishes to bid over and above the dollar amount the judgment states is owed to
the plaintiff (the lender). If no one bids the property is, in effect, “sold” to the
plaintiff essentially for the dollar amount stated in the judgment. If not, the property
is sold by the clerk to the person who has the highest bid above the dollar amount
stated in the judgment. When this happens, the excess is called a “Surplus” that
the judge will later disburse to the defendants who filed an answer in the case in
accordance with their rights as provided by law and as decided by the judge.

BRET SHAWN CLARK, PA ▪121 North McCall Road Englewood Florida 34223
              (941) 460-9100 ▪ bret.clark@comcast.net
              In a Nutshell: The Foreclosure Process in Florida
Stage VII. Certificate of Title is Issued
After the sale the clerk collects the money from the highest bidder (if there is one)
and issues a document called a Certificate of Sale. This is a paper that certifies
that the sale was conducted in accordance with the judgment, identifies the person
to whom the property was sold, and has other information. If no objections are filed
to the sale within 10 days of the filing of the certificate of sale, the clerk issues a
Certificate of Title to the person identified in the certificate (the highest bidder at
the sale) – which has the legal effect of transferring title to the property.


Stage VIII. Post-Foreclosure Proceedings & Issues
For the most part, once the sale is complete, the case is closed. Any interest in the
property that any named defendant had or might have had is extinguished or, as the
phrase implies, is “foreclosed”. Sometimes there are other issues that might arise.
For example, at any time before the Certificate of Sale is filed (or a longer period of
time if the judgment of foreclosure so states), the owner, or any other defendant (or
other junior lien holder) may exercise a Right of Redemption – meaning they can
pay the amount of the judgment and take title to the property. There may also be a
surplus that one or more of the defendants may ask the court to be disbursed to
them. There may also be a request for a Deficiency Judgment.
A deficiency judgment is where the lender received title to the property in question
at the foreclosure sale. After the sale the lender might go before the judge and
prove that the value of the property in question was less than the amount stated in
the judgment of foreclosure – that there was a deficiency. The lender in this case
has the right to ask the judge to enter a judgment against the borrower for the
difference between the value of the property and the amount owed.
If this happens, the lender can then execute on the judgment by attaching assets
owned by the borrower. But there are a number of assets that are not subject to
attachment and other difficulties in collecting on a deficiency judgment. For these
and other reasons, many times the lender will not pursue a deficiency judgment.


Post-Script
This is a very brief, thumb-nail sketch of the foreclosure process. Obviously a
foreclosure is a legal process and, as you might expect, there are many, many issues
that can arise in such cases and each person faced with a foreclosure, either as an
owner, third party or even a bidder at a foreclosure sale is foolish to do so without
consulting an attorney. Many attorneys offer consultations at affordable rates, and
those who can not afford even these modest rates can seek help from a Legal Aid
Society, or can seek low-cost or free guidance from legitimate organizations
sponsored by the federal Department of Housing & Urban Development (HUD).


If you have questions about this publication, or wish to schedule a consultation about
your rights in a pending or potential foreclosure case, please contact the author,
attorney Bret Clark, at (941) 460-9100 or bret.clark@comcast.net.


Also, attached is a sample case, Morris v. Osteen, which shows the interplay of
foreclosure issues and the foreclosure process in an actual foreclosure case.


BRET SHAWN CLARK, PA ▪121 North McCall Road Englewood Florida 34223
              (941) 460-9100 ▪ bret.clark@comcast.net
              In a Nutshell: The Foreclosure Process in Florida
               948 So.2d 821                  term and included an option for Morris
    Jeanne MORRIS and Chuck Pate,             to purchase the property for $275,000.
                 Appellant,                   Morris and Pate made improvements to
                     v.                       the property and operated a restaurant
 Arthur J. OSTEEN, etc. et al., Appellee.     and lounge on the premises.
               No. 5D06-871.
 District Court of Appeal of Florida, Fifth
                                                    On July 8, 2004, Osteen assigned
                  District.                   the mortgage he had against the
             January 19, 2007.                Gaglianos' property to the Barzanos for
 Rehearing Granted in Part and Denied in      value. The Gaglianos' bankruptcy action
          Part February 19, 2007.             was later dismissed, and the Barzanos
              [948 So.2d 822]                 renewed the foreclosure action against
                                              the property. On June 22, 2005, the
    Jonathan M. Smith, and Michael            circuit court issued an Amended Final
Bowlus of Ford, Bowlus, Duss, Morgan,         Judgment of Foreclosure. According to
Kenney, Safer & Hampton, P.A.,                this amended judgment, the Barzanos
Jacksonville, for Appellant.                  were due $282,500.25, plus interest. If
     William A. Post, Dunnellon, for          that amount were not paid, along with
Appellee.                                     interest and all costs accruing after the
     GRIFFIN, J.                              judgment, the clerk of the court was to
     Jeanne Morris and Chuck Pate             sell the land on July 21, 2005, by public
["Morris and Pate"] appeal the trial          sale, and the proceeds applied to satisfy
court's order granting Appellees', Neil T.    the Barzanos' foreclosure judgment
and Lisa M. Barzano ["Barzanos"],             against the Gaglianos. As is typical, the
summary final judgment on their claim         foreclosure judgment recited:
for     ejectment,     foreclosure     and          6. At the conclusion of the public
reasonable rental value. We reverse.          sale, upon the filing of the certificate of
[948 So.2d 823]                               sale, defendant and all persons claiming
     This case is about rights to a single    under or against defendant since the
piece of property, initially owned by         filing of the notice of lis pendens shall
Ronald       and      Carla      Gagliano     be foreclosed of all estate or claim in the
["Gaglianos"]. The Gaglianos mortgaged        property and the purchaser at the sale
the property to Arthur Osteen. The            shall be let into possession of the
Gaglianos later defaulted on the              property.
mortgage and, on January 15, 2004,                  On July 14, 2005, the circuit court
Osteen obtained a Final Judgment of           granted Morris and Pate's motion to
Foreclosure. The foreclosure judgment         intervene in the foreclosure proceedings
ordered the court clerk to sell the           to protect their interests under the lease.
property by public sale, but the              Then, before the date of the scheduled
Gaglianos were in Chapter 13                  sale, the Gaglianos and the Barzanos
bankruptcy proceedings. The automatic         entered into an agreement for a deed in
stay associated with that proceeding          lieu of foreclosure, whereby the
apparently interfered with a sale on the      Barzanos agreed to release the Gaglianos
scheduled date.                               from any personal liability under the
     On May 17, 2004, with the                foreclosure judgment in exchange for a
approval of the bankruptcy court, the         quitclaim deed to the property. Title was
Gaglianos entered into an agreement to        conveyed to the Barzanos on about July
lease a portion of the property to Morris     7, 2005. At the Barzanos' request, the
and Pate. The lease was for a two-year
BRET SHAWN CLARK, PA ▪121 North McCall Road Englewood Florida 34223
              (941) 460-9100 ▪ bret.clark@comcast.net
              In a Nutshell: The Foreclosure Process in Florida
court subsequently cancelled the               with option was given by Gagliano while
foreclosure sale.                              he was the foreclosure judgment debtor
     On August 4, 2005, the Barzanos           and the debtor in his bankruptcy
filed an action for ejectment and              proceeding. As determined by this court
foreclosure against Morris and Pate.           in its November 7, 2005 order, the lease
Morris and Pate admitted that their            with option could not grant any right to
leasehold interest was subject to the          occupancy, use or ownership greater
January 15, 2004, foreclosure judgment.        than Gagliano's equity of redemption.
However, Morris and Pate contend that          By executing the July 7, 2005 deed, Mr.
their rights under the lease are valid as      and Mrs. Gagliano deeded all their,
against the Barzanos' ejectment claim          right, title, interest in the subject
because that claim is based on the             property to the Barzano's. [sic]
Barzanos' title and not on their                     The lease with option was subject
foreclosure judgment. Morris filed an          to the operation of 695.01 F.S. because it
affidavit stating that she made proper         was given for a term of two years, but it
rent payments to the Gaglianos or their        was not recorded at the time the
bankruptcy trustee throughout the term         Barzano's obtained the deed from the
of the lease, up until the time that the       Gagliano's. The Barzano's [sic] as
Gaglianos transferred over their rights in     assignees from Osteen, stood in Osteen's
the property to the Barzanos. Morris           shoes as creditors of the Gagliano's [sic],
asserted that she tendered rent to the         with a valid lien on the subject property.
Barzanos and honored all other terms of              Thus, the trial court appears to have
the lease agreement and exercised her          concluded       that,    subsequent      to
option to purchase under it, but the           foreclosure judgment, the Gaglianos
Barzanos have refused to honor the             could not have conveyed a lease superior
agreement.                                     to the Barzanos' rights in the property.
     On November 21, 2005, the                 Alternatively, the court appears to have
Barzanos filed a motion for summary            reasoned that the Barzanos subsequent
judgment on the ejectment claim, and           quitclaim title took priority over the
later filed a motion to determine and          lease under section 696.01, because the
award reasonable                               lease was not recorded. After making the
[948 So.2d 824]                                above findings, the court concluded that
rental value to the Barzanos for Morris        the Barzanos were entitled to immediate
and Pate's use of the property. The trial      possession of the property. We disagree
court subsequently issued a summary            and reverse.
judgment granting ejectment and                      On appeal, Morris and Pate argue
reasonable rental value, ruling that the       that the Gaglianos did have the power to
lease was not binding on the Barzanos.         convey a valid lease. Also, because the
     In deciding in favor of the               Barzanos' ejectment claim is based upon
Barzanos, the trial court made several         the title they received through the
findings. In pertinent part, the court said:   quitclaim deed1 and because the
     The      original     Judgment       of   Barzanos had actual notice of Morris and
Foreclosure, entered January 15, 2004,         Pate's lease when they accepted the
which      foreclosed     the     mortgage     quitclaim deed, their title is subject to
encumbering the real property subject to       that lease.
this dispute, was prior in time to the               The Barzanos contend that "the
lease with option asserted by Intervenors      lease and the option rights claimed by
which was dated May 4, 2004. The lease         [Morris and Pate]" have always been
BRET SHAWN CLARK, PA ▪121 North McCall Road Englewood Florida 34223
              (941) 460-9100 ▪ bret.clark@comcast.net
              In a Nutshell: The Foreclosure Process in Florida
"subject to the pre-existing rights of the   the holder of any subordinate interest,"
[Barzanos] as owners of the Osteen           including lessees. § 45.0315, Fla. Stat.
mortgage and as judgment creditors."         (2005); Dundee Naval Stores Co. v.
They urge that because the lease is          McDowell, 65 Fla. 15, 61 So. 108, 112
subject to the Barzanos' foreclosure         (1913); Burns v. Bankamerica Nat'l
judgment, it is also subject to the          Trust Co., 719 So.2d 999, 1001 (Fla. 5th
Barzanos' title under the quitclaim deed.    DCA 1998); Riley v. Grissett, 556 So.2d
They rely on section 695.01(1), Florida      473, 475 (Fla. 1st DCA 1990). As
Statutes, to support their contention that   explained       in    FLORIDA         REAL
their rights as judgment creditors defeat    PROPERTY LITIGATION,
Morris and Pate's rights under the lease.          [t]he phrase "right of redemption"
     In Florida, a mortgage is simply a      has a twofold meaning. When used with
lien on the property to which it relates,    respect to a mortgagor, it refers to the
and not "a conveyance of the legal title     right of a mortgagor, before being
or of the right of possession." § 697.02,    foreclosed from that right, to satisfy the
Fla. Stat. (2005). To enforce the            mortgage indebtedness and thus clear the
mortgage lien, the mortgagee must file a     property from the encumbrance of the
foreclosure suit and obtain a judgment of    mortgage. When used with reference to a
foreclosure.                                 junior lienor, it refers to the right of the
[948 So.2d 825]                              junior lienor, before being foreclosed
Bowman v. Saltsman, 736 So.2d 144,           from it, to satisfy a prior mortgage by
146 (Fla. 5th DCA 1999). Upon                payment of the debt secured by such
obtaining a foreclosure judgment, the        prior mortgage, thereby becoming
mortgagee is "entitled to have the           equitably subrogated to all rights of the
property sold and the proceeds applied       prior mortgagee.
against the foreclosure judgment."                 ANTONIO MARTINEZ, JR.,
Bankers Trust Co. v. Edwards, 849            GEOFFREY L. TRAVIS, AND BRAD
So.2d 1160, 1162 (Fla. 1st DCA 2003);        REDLEIN,            FLORIDA           REAL
see also Cain & Bultman, Inc. v. Miss        PROPERTY LITIGATION § 5.47 (4th
Sam, Inc., 409 So.2d 114, 118 (Fla. 5th      ed.2005). The right to redeem the
DCA 1982). In the foreclosure process,       property terminates when the certificate
the mortgagee only acquires rights of        of sale is filed by the clerk or at the time
possession and title in the mortgaged        specified in the foreclosure judgment,
property if there has been "default, court   whichever is later. § 45.0315, Fla. Stat.
foreclosure, and sale to the mortgagee       (2005).3
and transfer of title to him according to          While the law clearly defines when
law." Martyn v. First Fed. Sav. & Loan       the mortgagor's right of redemption
Ass'n, 257 So.2d 576, 580 (Fla. 4th DCA      ends, it is less clear how the mortgagor's
1971).                                       other ownership rights in the property
     During the foreclosure process, the     are affected by foreclosure. It appears
mortgagor retains a right of redemption.     that, under Florida law, the mortgagor's
The right of redemption is a common          rights of ownership,
law and statutory right incident to every    [948 So.2d 826]
mortgage. Quinn Plumbing Co. v. New          including the right of alienation,
Miami Shores Corp., 100 Fla. 413, 129        continues as long as the mortgagor's
So. 690, 692 (1930); § 45.0315, Fla.         right of redemption exists. In John
Stat. (2005).2 The right of redemption       Stepp, Inc. v. First Federal Savings &
may be exercised by the "mortgagor or        Loan Ass'n, 379 So.2d 384 (Fla. 4th
BRET SHAWN CLARK, PA ▪121 North McCall Road Englewood Florida 34223
              (941) 460-9100 ▪ bret.clark@comcast.net
              In a Nutshell: The Foreclosure Process in Florida
DCA 1980), the mortgagor defaulted on              the mortgagee's attorney must
his mortgage and a foreclosure judgment       examine the abstract since the date of the
was entered in favor of the mortgagee.        mortgage to determine whether there are
After the foreclosure sale, the mortgagor     any junior encumbrances. If so, they will
transferred legal title of the property to    have to be satisfied. If it is not possible
the appellant by warranty deed. The           to get them satisfied, the mortgagee will
appellant then paid into the court registry   have no choice but to foreclose to
the amount required to redeem the             acquire a clear title.
property. The transfer of the deed and             Parties can agree to preserve the
the payment of the redemption amount          mortgagee's lien and thus prevent it from
occurred prior to the time redemption         merging with the acquired title.
rights were cut off.4 The issue on appeal     THOMAS E. BAYNES, JR., FLORIDA
was whether or not the appellant had the      MORTGAGES § 8-2 (1999). Preserving
right to exercise the equity of               the lien would preserve the mortgagee's
redemption. The Fourth District court         priority with respect to junior
said that "the law favors redemption by       encumbrances.
anyone who has an interest in the                  Generally, competing interests in
mortgaged premises who would be a             land have priority in the order in which
loser by foreclosure." Id. at 386. The        they are created. Cain & Bultman, Inc.,
court then held that since the "appellant     409 So.2d at 117. The important caveat
held legal title, it was no stranger to the   to this rule is that those acquiring rights
property" and directed the trial court to     later will have priority if they took
grant the motion for redemption in favor      without "notice of the first created
of appellant. Essential to the Fourth         rights." F.J. Holmes Equip., Inc. v.
District court's holding is the conclusion    Babcock Bldg. Supply, Inc., 553 So.2d
that the mortgagor retained the right to      748, 750 (Fla. 5th DCA 1989). In
transfer valid title of the property until    pertinent part, Florida's recording statute
some time after the foreclosure judgment      states:
and sale.                                          (1) No conveyance, transfer, or
     Applied to this case, the analysis of    mortgage of real property, or of any
John Stepp tells us that the Gaglianos        interest therein, nor any lease for a term
could convey a lease to Morris and Pate.      of 1 year or longer, shall be good and
The lease was subject to elimination          effectual in law or equity against
upon sale in foreclosure, but no sale ever    creditors or subsequent purchasers for a
took place. It is often the case that a       valuable consideration and without
mortgagee is willing to accept the deed       notice, unless the same be recorded
to the mortgaged property in exchange         according to law . . .
for not foreclosing against the mortgagor          (2)     Grantees      by     quitclaim,
in circuit court. These "deed in lieu of      heretofore or hereafter made, shall be
foreclosure" transactions allow the           deemed and
mortgagor to escape the possibility of a      [948 So.2d 827]
deficiency judgment. The problem              held to be bona fide purchasers without
facing the mortgagee in these                 notice within the meaning of the
transactions is that the title may be         recording acts.
encumbered by interests other than their           § 695.01, Fla. Stat. (2005). Thus,
own. As explained in FLORIDA REAL             "successors to legal title take title subject
PROPERTY LITIGATION § 5.61:                   to those equitable interests of which they
                                              have notice." Kroitzsch v. Steele, 768
BRET SHAWN CLARK, PA ▪121 North McCall Road Englewood Florida 34223
              (941) 460-9100 ▪ bret.clark@comcast.net
              In a Nutshell: The Foreclosure Process in Florida
So.2d 514, 517 (Fla. 2d DCA 2000).            Notes:
Forms of notice include possession,           1. "[I]t is well established that a quitclaim deed
actual notice, and constructive notice of     only conveys such title or interest as possessed
                                              by the grantor at the time of the making of the
publicly recorded matters. Cain &             deed . . . and `one who accepts a quitclaim deed
Bultman, Inc., 409 So.2d at 117. In           is conclusively presumed to have agreed to take
particular, with regard to possession, the    the title subject to all risks as to defects and
Second District court has said that           incumbrances [sic].'" Florida E. Coast Ry. v.
"[a]ctual possession . . . when open,         Patterson, 593 So.2d 575, 577 (Fla. 3d DCA
                                              1992) (quoting St. Clair v. City Bank & Trust
visible, and exclusive, will put upon         Co., 175 So.2d 791, 792 (Fla. 2d DCA 1965))
inquiry those acquiring any title to or a     (citations omitted).
lien upon the land so occupied to             2. Section 45.0315, Florida Statutes (2005)
ascertain the nature of the rights the        provides:
occupants really have in the premises."             At any time before the later of the filing of a
                                              certificate of sale by the clerk of the court or the
Kroitzsch, 768 So.2d at 517. In this case,    time specified in the judgment, order, or decree
it is abundantly clear that, at the time      of foreclosure, the mortgagor or the holder of
they took the quitclaim deed, the buyers      any subordinate interest may cure the
were aware of the Morris and Pate lease.      mortgagor's indebtedness and prevent a
Apart from Morris and Pate's operation        foreclosure sale by paying the amount of moneys
                                              specified in the judgment, order, or decree of
of a business on the property, the            foreclosure, or if no judgment, order, or decree
existence of the lease had been the basis     of foreclosure has been rendered, by tendering
for the Morris/Pate motion to intervene       the performance due under the security
filed and served in this case, and the        agreement, including any amounts due because
consequent order allowing intervention.       of the exercise of a right to accelerate, plus the
                                              reasonable expenses of proceeding to foreclosure
      We agree that the Barzanos' rights      incurred to the time of tender, including
under the foreclosure judgment are            reasonable attorney's fees of the creditor.
distinct from their rights as titleholders.   Otherwise, there is no right of redemption.
As judgment creditors, the Barzanos           3. The redemption provision was amended in
have no right of possession or title in the   1993. Before the amendment, the redemption
                                              rights of junior lienors ended when the final
property; only "to have the property sold     judgment of foreclosure was entered, and the
and the proceeds applied against the          redemption rights of the mortgagor ended when
foreclosure judgment." Bankers Trust          the clerk issued the certificate of title. Now, the
Co., 849 So.2d at 1162. Because no            redemption rights of all parties are cut off at the
foreclosure sale ever took place, the         filing of the certificate of sale. FLORIDA REAL
                                              PROPERTY LITIGATION § 5.141.
Gaglianos' right to convey a leasehold        4. At the time John Stepp was decided, the state
interest in their property was never cut      of the law was such that the mortgagor's right of
off. The rights the Barzanos acquired         redemption did not terminate until the sale was
under the subsequent quitclaim deed           confirmed by the court, or if no objection, until
were subject to the lease. In concluding      the certificate of title was issued. John Stepp,
                                              379 So.2d at 386.
otherwise, the trial court erred. This
                                              ---------------
being so, the summary final judgment is
reversed in its entirety and remanded for
further proceedings consistent with this
opinion.
      REVERSED and REMANDED.
      PLEUS, C.J., and ORFINGER, J.,
concur.
---------------

BRET SHAWN CLARK, PA ▪121 North McCall Road Englewood Florida 34223
              (941) 460-9100 ▪ bret.clark@comcast.net

								
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