YEMC Construction & Development, Inc., appeals Order on Defendani/Tenants Motion to Set Terms of Redemption and Order Upon Defendant/Tenants Compliance with the October 29, 2003, Order Granting Defendant/Tenants Motion to Set Terms of Redemption. We reverse. ...
Mortgagee Wells Fargo filed an action to foreclose on Nelly Chiongs three-acre farm property. Wells Fargo also named as defendants John Doe and Jane Doe, as unknown tenants in possession. The return of service on Jane Doe indicated that the premises were vacant; John Does return of service indicated that the main house was vacant but that the stalls were rented out to keep livestock. Ramon Torres, who collected the stall rents, was served with the John Doe papers. However, Wells Fargo did not serve tenants Inter Ser, USA, Inc., and Flor De Alelí Nursery, Inc. [collectively “Tenants”]. These Tenants run a plant nursery business on the property. There is a large
The March 27, 2003, summary final foreclosure judgment required the mortgagor to pay $215,004.20 and set an April 30, 2003, sale date, if the mortgagor did not remit the requisite payment. The judgment also provided that the right of redemption terminated “upon confirmation of the sale of the property by the clerk filing the Certificate of Sale.” No motion for rehearing was filed. On April 30, the property was sold to the highest bidder, and the clerk filed a Certificate of Sale. On May 5, the court approved assignment of the high bidders interest to YEMC.
On May 9, the Tenants filed an Objection and Motion for Relief from Foreclosure Sale and Motion to Vacate Default Final Judgment. They asserted that they were tenants in possession under an unrecorded lease, contract vendees to purchase the property, and that they were not served with process. The Tenants asserted that the sale did not close but that they had paid the owner a deposit.
On September 4, the Tenants filed a Motion to Set Terms of Redemption. The court entered an order finding that it had the power to extend the time to redeem because the Tenants had filed a facially valid objection before issuance of the Certificate of Title. The court denied the motion to set aside the foreclosure judgment and to vacate the default as to the unknown tenant except that the court substituted the Tenants for Jane Doe, stated that the Tenants had a right of redemption through the mortgagor, and ordered the Tenants to place the requisite funds and costs in their counsels trust account. The court subsequently entered an order setting aside the Certificate of Sale and finding that the Tenants had complied with the previous order.
We agree with YEMC that the orders must be reversed. Assuming there was a basis to vacate the foreclosure judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(4), see Dor Cha, Inc. v. Hollingsworth,
In addition, the trial court was without authority to extend the period of redemption. Here, it is undisputed that the Tenants’ right of redemption expired upon filing of the certificate of sale. § 45.0315, Fla. Stat. (2003). The Tenants’ redemption rights could have revested had the court set aside the judicial sale. “If a party files an objection to the foreclosure sale and the court determines there is a valid basis for the objection, the property is readvertised and resale begins anew. Upon the readvertisement and resale, a mortgagor’s lost redemptive rights temporarily revest.” JRBL Dev., Inc. v. Maiello,
Reversed and remanded.
Notes
. We express no opinion whether the lease or the option to purchase contract survives the foreclosure. See Burns v. Bankamerica Nat'l Trust Co.,
