Karam v. Greentree Corp.

783 S.W.2d 78, 1990 Ky. App. LEXIS 7, 1990 WL 4400
CourtCourt of Appeals of Kentucky
DecidedJanuary 26, 1990
DocketNos. 87-CA-1324-MR, 88-CA-0742-MR and 88-CA-0772-MR
StatusPublished
Cited by6 cases

This text of 783 S.W.2d 78 (Karam v. Greentree Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karam v. Greentree Corp., 783 S.W.2d 78, 1990 Ky. App. LEXIS 7, 1990 WL 4400 (Ky. Ct. App. 1990).

Opinion

HOWARD, Judge.

Edmond A. Karam and Greentree Corporation have both appealed decisions and findings of the Fayette Circuit Court. The appeals and cross-appeal have been consolidated and will all be addressed in this opinion.

Both parties were in agreement as to the essential facts of this case. Greentree Corporation owned the Hagerman Apartments, a historic two-story structure located at 431 West Second Street in Lexington, Kentucky. On January 24, 1984, Fayette Circuit Judge Charles Tackett entered an Agreed Judgment and Order of Sale setting forth the terms of a public sale of the property listed above. The property was to be sold by the master commissioner of the Fayette Circuit Court. The property was appraised for $290,000.00.

Prior to the sale date, Greentree Corporation filed a petition for relief under Chapter 11 in the United States Bankruptcy Court for the Eastern District of Kentucky. Following this, the automatic stay regarding this property was lifted, and the mortgagees and lienholders were allowed to pursue their relief in state court. A new order of sale was entered and the property was reappraised for $296,000.00.

The master commissioner conducted the sale on October 22, 1984. The opening and only bid was by Edmond A. Karam for $195,000.00. The bid was only 65.878% of the second appraisal. This established the right of redemption for Greentree Corporation. This sale was confirmed on February 11, 1985, and a deed conveying the property to Karam was recorded, but it contained a provision that the property might be subject to a right of redemption.

The mortgage liens of the parties to this action and the delinquent property tax bills were paid out of the sale proceeds, but the 1983 ad valorem property taxes and a mechanic’s lien for $53,062.23 of a company not a party to this lawsuit were not included in these amounts paid out of the sale proceeds. Karam did not file any exceptions to the sale report concerning these items. Karam paid $2,677.11 to extinguish the 1983 tax lien and $300.00 to settle the mechanic’s lien.

Greentree found two businessmen willing to purchase the corporation’s right to redeem the property. The premium amount offered would have been sufficient to pay all of Greentree’s creditors. Karam contended that Greentree did not have a right of redemption, because by adding the additional amounts Karam paid to extinguish the other claims to the amount bid, this amounted to more than two-thirds of the property’s appraised value. As a result, he argues that this extinguished any redemption right. If a redemption right did exist, the parties also disagreed as to the redemption price.

On May 14, 1985, Greentree filed a motion for an order establishing the proper amount for redeeming the property pursuant to KRS 426.530. A hearing was held by the deputy master commissioner on June 25, 1985. On January 8, 1987, the deputy master commissioner filed his report. He recommended that Greentree be allowed to redeem the property for the original purchase price plus 10% per annum interest from the date of the sale’s confirmation, but it had to reimburse Karam for the $300.00 and $2,677.11 paid to extinguish the claims against the property.

On May 15, 1987, the Fayette Circuit Court adopted the master commissioner’s [80]*80report and ruled over Karam’s objection that the redemption period had not expired. Karam has since filed his appeal and Greentree filed a CR 60.02 motion asking the court that the redemption period be stayed during the appeal of this action. Greentree, for the first time, also requested that it be allowed to offset from the redemption price the net rents and profits that Karam received from owning the property. Karam argued that since no superse-deas bond had been filed, the redemption period was still running. The Fayette Circuit Court ruled that the redemption period would be stayed during the appeal, and that four months would remain for Green-tree to redeem the property. The court also ruled that Greentree was not entitled to offset Karam’s net rents or profits against the redemption price.

Karam appealed the court’s ruling on the 60.02 motion, and Greentree Corporation filed a cross-appeal stating that it should have been allowed to offset the rents and profits.

We first address Karam’s contention that no right of redemption exists under the present facts. Karam claims that he should be allowed to add the amounts paid to extinguish the other claims against the property to the amount he bid and thus defeat any redemption right that Greentree Corporation might have. The applicable law and facts of this case do not support Karam’s assertion.

KRS 426.530 addresses the right of redemption. It states:

If real property sold in pursuance of a judgment or order of a court, other than an execution, does not bring two thirds of its appraised value, the defendant and his representatives may redeem it within a year from the day of the sale, by paying the original purchase money and ten percent (10%) per annum interest thereon.

The trial court correctly held that the statute clearly controls and provides that a purchaser like Karam must purchase the property for two-thirds of its appraised value. Nowhere does the statute provide for tacking on amounts paid later to extinguish other claims against the property. In this case the amount bid by Karam was only 65.878% of the most recent appraisal of the property’s value. Karam did not meet the two-thirds requirement. The doctrine of caveat emptor applies to his purchase.

The case law cited by Karam does not state that a purchaser can add amounts paid to extinguish other claims against the property to the amount bid to meet the two-thirds redemption requirement. Hardwick v. Fitzpatrick, 279 Ky. 53, 129 S.W.2d 1006 (1939) does not address the situation currently before this Court. It primarily concerned the sale of a debtor’s equity in property by a junior lienholder when a senior lienholder’s claim was not yet due. It does not support Karam’s theory. Columbia Life Insurance Co. v. Smith, 271 Ky. 133, 111 S.W.2d 618 (1937) addresses the issue of allowing a purchaser credit toward his purchase price for amounts paid to extinguish other claims. It does not concern the redemption issue.

Mr. Karam in this case failed to file any exceptions to the sale before accepting the commissioner’s deed. In cases involving questions such as these, the purchaser, in order to be given credit for amounts paid, must file exceptions to the sale’s confirmation either before its confirmation or during the term of the court at which the order of confirmation was made, and while control of the sale proceeds of the sale bond remained in the hands of the court. City of Irvine v. Kirby, 276 Ky. 634, 124 S.W.2d 1029 (1939); Columbia Life Insurance Co., supra, 111 S.W.2d at 621. By failing to do so in this case, Kar-am has waived his right to now argue that these extra amounts paid should be added to the bid price. His argument is misplaced here.

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Bluebook (online)
783 S.W.2d 78, 1990 Ky. App. LEXIS 7, 1990 WL 4400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karam-v-greentree-corp-kyctapp-1990.