Nationstar Mortgage v. Roque

252 So. 3d 342

• Court: District Court of Appeal of Florida
• Decided: July 25, 2018
• Docket: 18-0613
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 25, 2018.

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No. 3D18-0613 Lower Tribunal No. 14-31275

Nationstar Mortgage LLC, etc., Appellant,

vs.

Felicita Roque, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.

Albertelli Law, and Teodora Siderova and Shannon T. Sinai (Tampa), for appellant.

Jose M. Cervera, for appellees Ysabel Ynoa De De Leon and CUV087 Corp.

Before ROTHENBERG, C.J., and SUAREZ, and LINDSEY, JJ.

ON CONFESSION OF ERROR LINDSEY, J.

Nationstar Mortgage LLC DBA Champion Mortgage Company

(“Nationstar”) appeals the trial court’s Order Denying [Nationstar’s] Objection to

Sale and Motion to Vacate November 8, 2017 Foreclosure Sale and Certificate of

Sale, To Prevent the Clerk From Issuing Certificate of Title, and To Return the

Third Party’s Sale Proceeds (“Objection to Sale and Motion to Vacate”) entered on

January 29, 2018 and the trial court’s Order Denying [Nationstar’s] Motion for

Rehearing (“Motion for Rehearing”) entered on March 2, 2018.

The Final Judgment of Foreclosure was entered by the trial court on October

20, 2016 and provided that Felicita Roque (the “Borrower”)’s right of redemption

“terminated upon issuance of the Certificate of Sale.” On November 7, 2017, the

trial court denied Nationstar’s emergency motion to cancel the November 8, 2017

foreclosure sale. The foreclosure sale proceeded on November 8, 2017, and third

party purchaser Ysabel Ynoa De De Leon and CUV087 Corp. (“Appellee-

Purchasers”) submitted the highest bid. The Certificate of Sale was issued on

November 14, 2017. Nationstar filed the Objection to Sale and Motion to Vacate

on November 20, 2017, objecting to the foreclosure sale because timely

reinstatement funds necessary to cure the default were received on November 8,

2017—six days before the Certificate of Sale was issued.

2 After the trial court denied the Objection to Sale and Motion to Vacate on

January 29, 2018, Nationstar filed the Motion for Rehearing and again reiterated

that it had received the requisite reinstatement funds prior to the Certificate of Sale

being issued. The trial court subsequently denied the Motion for Rehearing and

Nationstar filed a timely Notice of Appeal on March 22, 2018. The Appellee-

Purchasers filed a Confession of Error on June 29, 2018, conceding that the trial

court erred in denying Nationstar’s Objection to Sale and Motion to Vacate

because the Borrower properly exercised her right of redemption “within the time,

manner, and procedure set forth” in paragraph seven of the Final Judgment of

Foreclosure and in compliance with section 45.0315, Florida Statutes (2016). We

agree.

Florida courts have consistently held that section 45.0315 affords the trial

court authority to set a time in the final judgment by which the mortgagor must

exercise their right of redemption or forfeit that right.1 See Emanuel, 655 So. 2d at

1 “In 1993, the legislature enacted Florida Statutes section 45.0315, codifying the mortgagor's right of redemption and specifying that the mortgagor may cure the indebtedness and prevent a foreclosure sale at ‘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 of foreclosure.’ The Third District observed that ‘the common law rule announced in Allstate v. Strasser, with respect to redemption, has been displaced by the enactment of section 45.0315, Florida Statutes, which exclusively governs the time, manner, and procedure for the claimed exercise of redemptive rights.’” Straub v. Wells Fargo Bank, N.A., 182 So. 3d 878, 881 (Fla. 4th DCA 2016) (first quoting § 45.0315, Fla. Stat. (2014); and then quoting Emanuel v. Bankers Trust Co., 655 So. 2d 247, 250 (Fla. 3d DCA 1995) (emphasis in original)).

3 249 (“[S]ection 45.0315, Florida Statutes (1993), explicitly empowers a court in

the final judgment of foreclosure to fix the time in which the mortgagor may

redeem”); see also Saidi v. Wasko, 687 So. 2d 10, 11 (Fla. 5th DCA 1996) (“This

section empowers a court to fix a time in the final judgment, before which the

mortgagor must exercise his right of redemption or forfeit that right.”).

Here, it is undisputed that the Borrower reinstated and cured the default on

the subject loan on the same day as the foreclosure sale, which was six days prior

to the issuance of the Certificate of Sale. Accordingly, the Borrower properly

exercised her right of redemption as outlined in the Final Judgment of Foreclosure.

Based upon the record before us and the confession of error filed by Appellee-

Purchasers, we reverse the trial court’s order denying Nationstar’s Objection to

Sale and Motion to Vacate and the trial court’s order denying Nationstar’s Motion

for Rehearing. We further remand with directions that the trial court enter an order

consistent with this opinion and granting Nationstar’s Objection to Sale and

Motion to Vacate.

REVERSED AND REMANDED.