                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

WATERVIEW          TOWERS            NOT FINAL UNTIL TIME EXPIRES TO
YACHT    CLUB      -  THE            FILE MOTION FOR REHEARING AND
ULTIMATE,          OWNERS'           DISPOSITION THEREOF IF FILED
ASSOCIATION, INC.,

      Appellant,

v.                                   CASE NO. 1D14-3478

SAEID C. GIVIANPOUR; FIRST
CITY BANK OF FLORIDA AND
HANCOCK             BANK,
SUCCESSOR IN INTEREST TO
PEOPLES FIRST COMMUNITY
BANK,

      Appellees.


_____________________________/

Opinion filed February 5, 2015.

An appeal from the Circuit Court for Okaloosa County.
Keith Brace, Judge.

John Cottle and Jay Roberts of Becker & Poliakoff, P.A., Fort Walton Beach, for
Appellant.

Richard M. Colbert, Gulf Breeze, for Appellees.
ROBERTS, J.

      The Appellant, homeowners’ association Waterview Towers Yacht Club,

appeals the trial court’s order granting the property owner’s motion to enforce

redemption of property. The property owner filed the motion to enforce redemption

after a certificate of sale was filed and the property in question was sold. The

Appellant argues that the right to redemption was extinguished when the certificate

of sale was filed. We agree and reverse.

                                      FACTS

      On April 9, 2013, the Appellant filed a suit to foreclose a claim of lien for

condominium assessments owed by the property owner. On March 7, 2014, a final

judgment was entered ordering the property owner to pay the total amount owed or

the property would be sold at public auction. The final judgment specifically

provided that the property owner would be foreclosed of all claims on the property

once the certificate of sale was filed. One month later, on April 11, 2014, the clerk

of court filed a certificate of sale, and the property in question was sold at public

auction to the Appellant. On April 16, 2014, the property owner obtained a loan for

the full amount of the judgment and sought to tender the amount to the Appellant.

The Appellant refused the tender, and the property owner filed a motion to enforce

redemption of the property. Without explanation, the trial court granted the motion

to enforce redemption.

                                           2
                                       MERITS

      “The right of redemption is a valued and protected equitable right of the

mortgagor to reclaim his estate in foreclosed property after it has been forfeited, at

law, by paying the amount of the debt, interests and costs.” Indian River Farms v.

YBF Partners, 777 So. 2d 1096, 1099 (Fla. 4th DCA 2001). Section 45.0315, Florida

Statutes, governs the right of redemption and provides:

      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 mortgagor or the holder of any subordinate interest
      may cure the mortgagor's indebtedness and prevent a foreclosure sale
      by paying the amount of moneys specified in the judgment, order, or
      decree of foreclosure, or if no judgment, order, or decree of foreclosure
      has been rendered, by tendering the performance due under the security
      agreement, including any amounts due because of the exercise of a right
      to accelerate, plus the reasonable expenses of proceeding to foreclosure
      incurred to the time of tender, including reasonable attorney's fees of
      the creditor. Otherwise, there is no right of redemption.

      This    section   applies   to   foreclosures of     homeowners’ association

liens. See Chase Fin. Servs., LLC v. Edelsberg, 129 So. 3d 1139, 1141 n. 2 (Fla. 3d

DCA 2013) (citing to section 720.3085(1)(c), Florida Statutes (2013) (providing that

an “association may bring an action in its name to foreclose a lien for assessments

in the same manner in which a mortgage of real property is foreclosed”)).

      Where a final judgment provides that a right of redemption would be

terminated upon the filing of the certificate of sale, any payment made after the filing

of the certificate of sale does not entitle the owner to have the foreclosure sale set

                                           3
aside. See id. at 1142 (holding that the owner was not entitled to have the foreclosure

sale set aside on the basis of his purported tender of payment to the association

because that payment was made a month after the certificate of sale was filed). Here,

in accordance with section 45.0315, Florida Statutes, the final judgment provided

that the property owner’s right of redemption in the property was extinguished upon

the filing of the certificate of sale. As such, the right to redeem was extinguished

when the certificate of sale was filed on April 11, 2014. There is no evidence that

the property owner tendered payment to the Appellant at any time before April 11,

2014. In fact, the property owner admits he did not obtain the money to satisfy the

judgment until April 16, 2014.        At this point, the right of redemption was

extinguished.

      The trial court did not provide its reasoning for granting the property owner’s

motion to enforce redemption. The property owner argued in a memorandum of law

to the court that he was not owed a right of redemption, but that under the equitable

concepts of fairness and justice, he was entitled to the equity of redemption. The

property owner also makes this argument in his Answer Brief and cites to a Fourth

District Court of Appeal case for the proposition that the equity of redemption differs

from the right of redemption. Hoffman v. Semet, 316 So. 2d 649 (Fla. 4th DCA

1975). However, the Fourth District does not make this statement. The court states:

      Under Florida law, which has adopted the lien theory of mortgages, a
      mortgagor holds legal title to the mortgaged property while the
                                          4
      mortgagee's interest is merely that of a lienor. However, as in many
      areas of the law, historical vestiges of another era persist. The strict
      common law view of the mortgage was as a conditional conveyance of
      land vesting legal title in the mortgagee. Upon default, the mortgagor
      forfeited all right and interest in the property; the mortgagee could
      simply reenter and assume full ownership. In time the equity courts
      responded to this harsh result by granting the mortgagor the right to
      redeem his property upon satisfying the outstanding debt. This right
      was termed the mortgagor's ‘equity of redemption’. The equity of
      redemption eventually came to be regarded as an actual estate in land,
      i.e., the mortgagor's estate or interest in the mortgaged property.

Id. at 651-52 (internal citations omitted). From this language, the court appears to

merely be explaining the history of redemption and not demarcating a difference

between equity of redemption and the right of redemption. As explained by the

Fourth District, the equity of redemption is the mortgagor’s right to redemption. Id.

      Thus, the property owner fails to cite any authority for its proposition that the

trial court properly acted when it granted the motion to enforce redemption after the

time period for redemption had expired.

      REVERSED AND REMANDED.

RAY and MAKAR, JJ., CONCUR.




                                          5
