Neely v. Firstplus Financial, Inc. (In re Neely)

256 B.R. 322, 14 Fla. L. Weekly Fed. B 115, 2000 Bankr. LEXIS 1490
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedAugust 24, 2000
DocketBankruptcy No. 00-01819-BKC-3F3; Adversary No. 00-184
StatusPublished
Cited by2 cases

This text of 256 B.R. 322 (Neely v. Firstplus Financial, Inc. (In re Neely)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neely v. Firstplus Financial, Inc. (In re Neely), 256 B.R. 322, 14 Fla. L. Weekly Fed. B 115, 2000 Bankr. LEXIS 1490 (Fla. 2000).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JERRY A. FUNK, Bankruptcy Judge.

This Proceeding came before the Court for a Final Pretrial Conference on August 8, 2000. The Court also considered Jerry L. Neely’s and Victoria E. Neely’s (“Plaintiffs”) Objection to Firstplus Financial’s (“Defendant”) Claim # 2 (Doc. 80) and Defendant’s Motion for Relief from Stay as to Claim # 2 (Doc. 20) filed in the underlying Bankruptcy Case. In a Joint Pretrial Statement the parties stipulated to consolidation of all pending issues between the parties in the form of a mutual ore tenus Motion for Summary Judgment. Upon review of the stipulated facts and applicable Florida law, the Court finds that Defendant is entitled to summary judgment. The Court will also grant Defendant adequate protection payments as stipulated to in the Joint Pretrial Statement.

FINDINGS OF FACT

On September 9,1983, Plaintiffs granted American Home Funding, Inc. a first mortgage on their homestead property located in Duval County, Florida. American Home Funding subsequently assigned this mortgage to Norwest Mortgage, Inc. (“Norwest”). On June 11, 1997, Plaintiffs granted a junior mortgage on their homestead to Banc One Financial Services, Inc. Banc One subsequently assigned this junior mortgage to Defendant. This junior mortgage constitutes the basis for the claim at issue.

In 1999, Norwest instituted foreclosure proceedings on the property. On February 28, 2000, the Circuit Court of Duval County issued a Final Summary Judgment of Mortgage Foreclosure on the property and scheduled a judicial sale for March 27, 2000. The Final Summary Judgment of Mortgage Foreclosure provides in pertinent part that:

On filing of the Certificate of Title with respect to the property described in paragraph 4 above, the Defendants named herein, and all persons claiming by, through, under or against them since the filing of the Notice of Lis Pendens in this action, are foreclosed of all estate, interest or claim in the property described in paragraph 4, and the purchaser or purchasers at the sale shall be let into possession of the property.

(Defendant’s Exh. 4).

On March 9, 2000, Plaintiffs filed a voluntary Chapter 13 petition and their proposed Chapter 13 Plan. The Plan did not account for Defendant’s junior mortgage, except to allege that “[t]he lien of this mortgage has been extinguished by the foreclosure of the first mortgage.”

Having agreed to the above facts, the parties submit to the Court a single decisive question: Whether or not Defendant’s junior mortgage was extinguished by the Final Summary Judgment of Mortgage Foreclosure. Plaintiffs contend that the mortgage was extinguished by the judgment. Defendants contend that the mortgage survives until the foreclosure sale is complete.

CONCLUSIONS OF LAW

Because the parties stipulated to the facts as outlined above, no genuine issues of material fact exist. Therefore, the Court will proceed to dispose of the sole legal question at hand: whether a junior mortgage is extinguished by the entry of a judgment of foreclosure.

The foreclosure action in Florida consists of three essential steps. First, the validity of claimed interests are determined. Second, the extent (amount) and priority of valid liens are determined. Finally, there is a window of opportunity during which junior lienholders may redeem the newly adjudged senior interests in order to protect themselves. Plaintiffs request that the Court eliminate the third [324]*324step of the foreclosure process. Such a holding directly contradicts the plain language of Florida Statutes § 45.0315. To hold that junior interests are extinguished upon judgment of foreclosure would defy a long line of Florida case law to the contrary. Additionally, Plaintiffs are collaterally estopped from asserting that the judgment extinguished Defendant’s mortgage when the judgment provides for exactly the opposite result.

Under Florida law, a junior mortgagee maintains a right to redeem its interest in mortgaged property being foreclosed by a senior mortgagee up until the issuance of a certificate of sale to a judicial sale purchaser by the clerk of the court. See § 45.0315 Fla. Stat. (West 2000). The existence of this right of redemption logically demands the concurring existence of the interest itself. Therefore, § 45.0315 stands for the proposition that a junior mortgage is not extinguished by the entry of a foreclosure judgment but survives until the completion of the judicial sale.

Florida case law supports this interpretation of § 45.0315. See e.g. Glendale Fed. Savings and Loan v. Guadagnino, 434 So.2d 54 (Fla. 4th DCA 1983) (holding untimely the attempt of junior mortgagee to exercise right of redemption after sale). Only the issuance of a certificate of sale extinguishes junior mortgages. See Id.

The Court will not allow Plaintiffs to assert that the Summary Judgment of Foreclosure extinguishes junior mortgages when the face of the Judgment says exactly the opposite. The terms of a judgment of foreclosure may modify or reinforce the provisions in § 45.0315 relating to the extinguishing of junior liens. See Saidi v. Wasko, 687 So.2d 10 (Fla. 5th DCA 1996). In the instant case the Judgment provides that Defendant’s lien is not extinguished until the filing of a certificate of title on Plaintiffs’ homestead. (See Defendant’s Exh. 4).1 The Defendant’s junior mortgage cannot be extinguished at judgment if the Judgment itself provides for the mortgage to be extinguished upon the filing of a certificate of title subsequent to foreclosure sale. Plaintiffs are collaterally es-topped from going behind the Judgnent by the plain language of the Judgment.

Plaintiffs rely on Acosta v. Marion County (In re Acosta), 200 B.R. 57 (Bankr.M.D.Fla.1996) to support their contention that junior mortgages are extinguished by a judgment of foreclosure. In Acosta, a homeowner facing foreclosure sale by the primary mortgagee filed a voluntary Chapter 13 petition to prevent the judicial sale of his home. See Id. at 58. The homeowner then objected to a secured claim filed against the estate by the holder of a junior mechanics’ lien on the grounds that the lien had been extinguished by the judgment of foreclosure. See Id. at 58. Based on Florida Statutes § 713.21(5), the Court found that the lienholder’s interest was extinguished by the foreclosure judgment. See Id. at 59. Section 713.21 provides in relevant part:

A lien properly perfected under this chapter [a mechanics’ hen] may be discharged by any one of the following methods...
... (5) By recording in the clerk’s office the original or a certified copy of a judgment or decree of a court of competent jurisdiction showing a final determination of the action.

§ 713.21, Fla. Stat. (West 2000).

The Acosta Court interpreted § 713.21(5) as standing for the proposition that all junior interests, including junior mortgages as well as mechanics’ liens, are extinguished at the entry of a foreclosure [325]*325judgment rather than at the time a judicial sale is complete. See Acosta at 58. Additionally, the Acosta Court mistakenly cited Glendale Savings as supporting the proposition that junior interests were extinguished by a judgment of foreclosure. See Id. at 58.

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Bluebook (online)
256 B.R. 322, 14 Fla. L. Weekly Fed. B 115, 2000 Bankr. LEXIS 1490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neely-v-firstplus-financial-inc-in-re-neely-flmb-2000.