Kirklevington Associates, Ltd. v. Kirklevington North Associates, Ltd.

848 S.W.2d 453, 1993 Ky. App. LEXIS 35, 1993 WL 47965
CourtCourt of Appeals of Kentucky
DecidedFebruary 26, 1993
DocketNo. 92-CA-000920-MR
StatusPublished
Cited by4 cases

This text of 848 S.W.2d 453 (Kirklevington Associates, Ltd. v. Kirklevington North Associates, Ltd.) 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
Kirklevington Associates, Ltd. v. Kirklevington North Associates, Ltd., 848 S.W.2d 453, 1993 Ky. App. LEXIS 35, 1993 WL 47965 (Ky. Ct. App. 1993).

Opinion

JOHNSON, Judge.

This is an appeal from an Order entered March 16, 1992 in Fayette Circuit Court which stated that the former owner of property sold in a foreclosure action possessed the sole right to redeem the property from the sale pursuant to KRS 426.530. We agree with the interpretation of the circuit court and affirm.

Appellant, Kirklevington Associates, Ltd. (hereinafter “Associates”) sold to Appellee, Kirklevington North Associates, Ltd. (hereinafter “Kirklevington North”) an apartment complex located in Lexington, Kentucky known as Kirklevington North Apartments. The property was purchased subject to a nonrecourse first mortgage in the amount of $2,000,000 held by Appellees East Coast Savings Bank (hereinafter “East Coast”) and Steve Rayman (hereinafter “Rayman”). Kirklevington North paid $600,000 as a down payment and granted Associates what in effect was a second mortgage to secure two nonrecourse notes for the remaining $1,250,000 of the $3,850,-000 purchase price.

Kirklevington North defaulted on the second mortgage and Associates filed suit in Fayette Circuit Court on September 5, 1990. Associates requested that the court sell the property to satisfy its lien, subject to the first mortgage of East Coast and Rayman.

Subsequently, East Coast and Rayman filed a separate foreclosure action seeking a judgment and an order of sale to satisfy their mortgage. The court entered its judgment and order of sale on January 2, 1992, and the matter was referred to the Master Commissioner. The court-appointed appraisers determined that the value of the property was $3,950,000. The property was sold on January 27, 1992 at an advertised auction, free and clear of all encumbrances, to the first mortgage holders, East Coast and Rayman for $1,950,000, who then assigned their rights under the bid to KLN Associates, Ltd. (hereinafter “KLN”).

On January 28, 1992, the Master Commissioner filed a Report of Sale which indicated that the property had been sold for less than two-thirds of its appraised value. The report noted that the defendants could redeem the property pursuant to KRS 426.-530. East Coast and Rayman filed objections to the report on February 7, 1992, contesting — among other things — the determination that a right to redemption existed in all of the defendants. Associates filed an exception to the report noting that it would object to any order confirming the sale which did not recognize its right of redemption under KRS 426.530.

On March 16, 1992, the circuit court entered an Order which held that Kirkleving-ton North, as title holder of the property, possessed an exclusive statutory right of redemption. It is from this Order that Associates appeals.

KRS 426.530 provides:

(1) 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 sale, by paying the original purchase money and ten percent per annum interest thereon.
(2) The defendant shall pay the redemption money to the clerk of the court in which the judgment was rendered or the order of sale was made. Upon payment by the defendant, the master commissioner shall convey the real property to the defendant.
(3) When the right of redemption exists, the purchaser shall receive an immediate writ of possession and a deed containing a lien in favor of the defendant, reflecting the defendant’s right to redeem during the statutory period.

The meaning of the term “defendant” in the above statute is the central issue of this appeal. Associates insists that junior mortgagees or lienholders are included in the class of those entitled to redeem under KRS 426.530. Associates comes to this conclusion by way of KRS 426.006, which states in part:

[455]*455The plaintiff in an action for enforcing a lien on property shall state in his petition the liens held thereon by others, making them defendants....

In a nutshell, Associates claims that it should be entitled to redeem as a defendant under KRS 426.530 because it has been made a defendant to the foreclosure action pursuant to KRS 426.006. Associates contends that since the term “defendant” in KRS 426.530 is not limited by any exceptions, this Court should infer that the Legislature did not intend to omit a party which would be included in the term under KRS 426.006.

Associates suggests that additional support for such a construction can be found in the predecessors of the two statutes. Associates notes that the language contained in KRS 426.006 dates back to Section 692 of the 1883 Civil Code. In addition, Associates asserts that Kentucky Statute 2364,. a predecessor of KRS 426.-530, was enacted in 1893, ten years after the enactment of Civil Code Section 692. Associates thereby concludes that the Legislature intended the term “defendant” as used in the 1893 redemption statute to have the same meaning as used in the earlier statute, which required that all lienholders be named defendants.

However, the more sound construction of KRS 426.530 is one which limits the right to redemption to the owner of the property. As noted by Kirklevington North, the term “defendant and his representatives” can be found in the 1852 predecessor to KRS 426.-530, Revised Statutes ch. 36, art. 13, § 4 (Wickliffe 1852). Accordingly, this Court cannot presume that the Legislature intended to grant a right to redemption to all lienholders. In fact, the highest court of this state seemed to place limits on the remedies available to the mortgagee as early as 1889. In Makibben v. Arndt, 88 Ky. 180, 10 S.W. 642 (1889), the Court stated:

The redemption is a recovery of the legal title; and it, by reason of it, repass-es to the mortgagor....
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Bluebook (online)
848 S.W.2d 453, 1993 Ky. App. LEXIS 35, 1993 WL 47965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirklevington-associates-ltd-v-kirklevington-north-associates-ltd-kyctapp-1993.