05-1304_JurisIni.PDF

IN THE SUPREME COURT OF FLORIDA

CASE NUMBER: SC05-1304

Lower Tribunal Case Number: 2D04-5257

JANETTA YORK,

Petitioner,

v.

EMMETT ABDONEY,

Respondent.

PETITIONER’S AMENDED INITIAL BRIEF ON JURISDICTION IN

SUPPORT OF NOTICE TO INVOKE DISCRETIONARY JURISDICTION

TO REVIEW A DECISION

OF THE SECOND DISTRICT COURT OF APPEAL

___________________________________________________________________

DAVID A. TOWNSEND

Florida Bar No. 149560

ANITA C. BRANNON

Florida Bar No.: 318434

TOWNSEND & BRANNON

608 W. Horatio Street

Tampa, Florida 33606-2228

(813) 254-0088 - Telephone

(813) 254-0093 - Fax

Attorneys for Petitioner, JANETTA

YORK.

ii

TABLE OF CONTENTS

Page

TABLE OF CITATIONS ii

STATEMENT OF THE CASE AND OF THE FACTS 1

ISSUE INVOKING THIS COURT’S JURISDICTION 3

SUMMARY OF ARGUMENT ON JURISDICTION 3

ARGUMENTS ON JURISDICTION 4

CONCLUSION 10

CERTIFICATE OF SERVICE 10

CERTIFICATE OF COMPLIANCE 10

APPENDIX

Abdoney v. York, (reported at 903 So. 2d 981 (Fla. 2d DCA 2005))

Order Denying rehearing

iii

TABLE OF CITATIONS

Cases Page

Burns v. BankAmerica, 3, 4, 5, 8

719 So. 2d 999 (Fla. 5

th

DCA 1998)

Cicoria v. Gazi, 3, 8, 9

901 So. 2d 282 (Fla. 5

th

DCA 2005)

Donato v. American Telephone & Telegraph Co., 7

767 So. 2d 1146 (Fla. 2000)

Dundee Naval Stores Company v. McDowell, 5

61 So. 108 (Fla. 1913)

Emanuel v. Bankers Trust Co., 7

655 So. 2d 247 (Fla. 3d DCA 1995)

rev. denied 663 So. 2d 629 (1995)

Hayes v. State, 7

750 So. 2d 1 (Fla. 1999)

Holly v. Auld, 7

450 So. 2d 217 (Fla. 1984)

Knowles v. Beverly Enterprises, 7

898 So. 2d 1 (Fla. 2005)

Posnansky v. Breckenridge, 3, 8, 9

621 So. 2d 736 (Fla. 4

th

DCA 1993)

Riley v. Grissett,

556 So. 2d 473 (Fla. 1

st

DCA 1990) 9

Quinn Plumbing Co. v. New Miami Shores Corp., 3, 8, 10

129 So. 690 (Fla. 1930)

iv

YEMC Construction & Development, Inc. v. Inter ser 3, 4, 6

USA, Inc et. al.,

884 So. 2d 446 (Fla. 3d DCA 2004)

Statutes and Laws

Section 45.0315, Florida Statutes 1, 2, 3, 4, 5, 6,

7, 9

Rules

Rule 9.210(a)(2), Florida Rules of Appellate Procedure 10

1

STATEMENT OF THE CASE AND OF THE FACTS

This case involves the interpretation and application of Section 45.0315,

Florida Statutes .

Emmett Abdoney was given a second mortgage by Jason and Betty

Peterson.

1

Abdoney promised the Petersons that he would not foreclose the second

mortgage. The Petersons failed to make payments on their first mortgage with

Amerivest Corporation, and Amerivest instituted a foreclosure action against the

Petersons and three junior lienors, one of which was Abdoney.

Abdoney entered into an agreement with Amerivest to buy out the first

mortgage. Amerivest voluntarily dismissed Abdoney from the foreclosure suit, and

the parties filed a joint stipulation for substitution of plaintiff now with him as

Plaintiff. The trial court entered a final judgment of foreclosure awarding

Abdoney $11,269.27, and ordered a judicial sale. The final judgment specified a

deadline for redemption of the issuance of the certificate of sale. Janetta York was

the successful bidder with a bid of $15,100, and the clerk issued and filed a

certificate of sale.

Shortly thereafter, Abdoney sent York a letter demanding satisfaction of his

junior lien. In response, York filed a motion to declare junior lienor with notice

1

This statement of the case and facts is taken from the

opinion of the Second District Court of Appeal.

2

barred in the foreclosure action, which the trial court denied as premature.

Abdoney then filed a new foreclosure action for his junior lien.

York also renewed her motion to declare junior lienor with notice barred in

the first foreclosure action. Abdoney moved to strike her motion arguing lack of

standing in the first case by York, the successful purchaser at sale, which the trial

court denied. The two cases were consolidated.

After an evidentiary hearing the trial court entered an order making extensive

findings of fact, which granted York’s motion to declare junior lienor barred on the

basis of Section 45.0315, Florida Statutes. The court determined that Abdoney’s

right to foreclose his junior lien was extinguished upon the by the filing of the

certificate of sale in the first foreclosure action. Both parties thereafter filed

motions for summary judgment. The court granted York’s motion for final

summary judgment based upon its factual findings made at the evidentiary hearing

and denied Abdoney’s.

Abdoney appealed. No competent substantial evidence argument was made

to challenge the trial court’s findings. The Second District reversed and remanded

the trial court with the opinion attached to this petition. York filed a timely motion

for rehearing which was denied on June 24, 2005. The Notice to Invoke

Discretionary Jurisdiction was filed with the Second District on July 22, 2005.

3

ISSUES INVOKING THIS COURT’S JURISDICTION

The Second District’s opinion held that:

(1) Notice of and participation in the foreclosure sale is irrelevant to

application of Section 45.0315, Florida Statutes, which holding expressly and

directly conflicts with the opinions of the fifth and third districts in Burns v.

Bankamerica Nat’l Trust, 719 So. 2d 999 (Fla. 5

th

DCA 1998) and YEMC

Construction & Development v. Inter ser, USA, Inc., 884 So. 2d 446 (Fla. 3d DCA

2004), respectively; and

(2) Deliberate omission of a junior lienholder in a foreclosure suit has no

legal significance which expressly and directly conflicts with the opinion of this

court in Quinn Plumbing Co. v. New Miami Shores, 129 So. 690, 692-693 (Fla.

1930) and the third district in Posnansky v. Breckenridge, 621 So. 2d 736 (Fla. 4

th

DCA 1993) and Cicoria v. Gazi, 901 So 2d 282 (Fla. 5

th

DCA 2005)

SUMMARY OF ARGUMENT ON JURISDICTION

The Second District Court of Appeal has departed from previously consistent

foreclosure law as it pertains to notice and equity, both before and after the passage,

in 1993, of Section 45.0315, Florida Statutes.

This departure has created express and direct conflict which must be resolved

by this court.

4

ARGUMENTS ON JURISDICTION

I. NOTICE OF AND PARTICIPATION IN THE

FORECLOSURE SALE IS IRRELEVANT TO

APPLICATION OF SECTION 45.0315, FLORIDA

STATUTES WHICH HOLDING EXPRESSLY AND

DIRECTLY CONFLICTS WITH THE OPINIONS OF

THE FIFTH AND THIRD DISTRICTS IN BURNS V.

BANKAMERICA NAT’L TRUST, 719 SO. 2D 999

(FLA. 5

TH

DCA 1998) AND YEMC CONSTRUCTION

& DEVELOPMENT V. INTER SER, USA, INC., 884

SO. 2D 446 (FLA. 3D DCA 2004), RESPECTIVELY.

This case concerns whether a foreclosing party who owns two mortgages on

a parcel and only forecloses the superior mortgage and who fails to exercise the

right of redemption, may then sue the successful purchaser to foreclose on the

junior lien. The Second District’s interpretation and application of Section

45.0315, Florida Statutes, is in direct conflict with the opinions of other districts.

Section 45.0315, Florida Statutes, provides, in part,

At any time before the later of the filing of a certificate of sale by the clerk

of the court ... 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 ... Otherwise there is no right of

redemption.

The Second District ruled:

This case presents an unusual set of facts in that Abdoney, in his

capacity as the senior mortgagee, omitted himself as a junior

mortgagee from the original foreclosure action. Abdoney has

admitted that this omission was intentional, but we cannot find any

5

authority that would justify departing from the general rule that the

lien of a junior mortgagee is not affected by a judgment of foreclosure

to which he was not a party. Although Abdoney had notice of, and

participated in, the judicial sale, he did so in his capacity as senior

mortgagee and not as a junior mortgagee.

Opinion at page 6.

It is puzzling that the appellate court committed such tortuous logic in its

effort to conclude, contrary to the trial court, that Abdoney was not a party for

purposes of Section 45.0315, Florida Statutes, even though he was a party plaintiff

and participated fully in the foreclosure proceedings. No authority is provided to

support this conclusion, and it is contrary to the law as expressed in Dundee Naval

Stores v. McDowell, 61 So. 108, 113 (Fla. 1913), which holds:

[W]here different persons have rights or interests in specific land, the

foreclosure of a mortgage upon the land affects the rights and interests

of only such persons as are made parties actually or constructively to

the foreclosure proceeding.

The Second District is creating a concept of being a little bit of a party. Abdoney

was indeed a party to the case, as Plaintiff, for all of his right title and interest in

the property.

Previous rulings by other districts have consistently addressed the concepts

of notice and clean hands before redemption rights are lost when one is not a party.

In Burns v. BankAmerica Nat’l Trust, 719 So. 2d 999, 1001 (Fla. 5

th

DCA

1998) the Fifth District was presented with parties claiming they were not properly

6

served and sought to exercise their rights of redemption after the certificate of sale

was issued. The court held that the tenants with an option to purchase who alleged

they were not properly served should have been allowed by the trial court to

present evidence about the service of process issue and went on to hold:

[E]ven if . . . the judgment against them was void for lack of service, . . . . that

would not end our inquiry. . . . Under Section 45.0315, Florida Statutes (1995) ‘the

mortgagor or the holder of any subordinate interest’ may redeem the property any

time before the issuance of a certificate of title following foreclosure sale. . . .

However, once the certificate is issued, redemption is precluded, even if the

party asserting the right was not made a party to the foreclosure proceedings.

. . . [T]he Burnses received the final judgment of foreclosure and notice of sale. . . .

Issuance of the certificate of title precluded any further exercise of the mortgagee’s

redemption right.” (Emphasis added.)

More recently, in YEMC Construction & Development v. Inter se, USA,

Inc., 884 So. 2d 446, 448 (Fla. 3

rd

DCA 2004), the third district examined the

situation when tenants in possession/contract vendees who were not served with

the suit and were not parties, but filed an objection and motion for relief from

foreclosure sale nine days after the certificate of sale was issued. That motion was

granted by the trial court which allowed the redemption, but was reversed by Third

District which held:

[T]he trial court was without authority to extend the period of

redemption. Here, it is undisputed that the tenants’ right of

redemption expired upon filing the certificate of sale, § 45.0315, Fla.

Stat. (2003).

If one has a lien on property in the Third District or Fifth District the issue

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will be if you had notice to determine whether your lien rights were extinguished

upon foreclosure. As the Third District held, in one of the earliest cases decided

after the 1993 statute was enacted:

Section 45.0315, Florida Statutes, ... exclusively governs the time,

manner and procedure for the claimed exercise of redemptive rights.

Otherwise, as the statute so plainly states, there are no redemptive

rights.

Emanuel v. Bankers Trust Company, 655 So. 2d 247, 250 (Fla. 3d DCA 1995)

rev. den. 663 So. 2d 669 (Fla. 1995).

If the property lies in the Second District, the rights of subordinate

lienholders are greater and are not affected by Section 45.0315, Florida Statutes,

even if they had notice and were the foreclosing party. No announcements need to

be made at sale that a lien held by a party to the case is excluded.

The Second District has improperly modified the statute with its

interpretation. “Courts are not at liberty to add words to statutes that were not

placed there by the legislature.” Knowles v. Beverly Enterprises, 898 So. 2d 1,

(Fla. 2005) (Cantero concurring) citing Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999);

Donato v. American Telephone & Telegraph Co., 767 So. 2d 1146, 1150 (Fla.

2000) (It is an abrogation of legislative power for courts to add words to statutes);

Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (courts are “without power to

construe an unambiguous statute in a way which would extend, modify or limit its

8

express terms.”)

The Second District has modified the last sentence of the statute to now

read:

Otherwise there is no right of redemption, however if you had notice

and attended the sale and still did not exercise a right of redemption

you may continue to retain your right of redemption if your interest

in the property though a matter of public record was not fully

identified in the foreclosure case and you did not disclose it at the

sale.

The Second District acknowledges the Burns holding and concedes that

Abdoney could not exercise redemption in the first case, but then allows him

foreclosure and redemption in a new case. This rewriting of the statute has created

conflict among the districts which requires resolution by this court.

II. THE HOLDING THAT DELIBERATE

OMISSION OF A JUNIOR LIENHOLDER IN A

FORECLOSURE HAS NO LEGAL SIGNIFICANCE

EXPRESSLY AND DIRECTLY CONFLICTS WITH

THE OPINION OF THIS COURT IN QUINN

PLUMBING CO. V. NEW MIAMI SHORES, 129 SO.

690 (FLA. 1930) , THE THIRD DISTRICT IN

POSNANSKY V. BRECKENRIDGE, 621 SO. 2D 736

(FLA. 4

TH

DCA 1993) AND THE FIFTH DISTRICT IN

CICORIA V. GAZI, 901 SO. 2D 282 (FLA. 5

TH

DCA

2005).

The Second District’s statement (Opinion, page 6) after recognizing

Abdoney intentionally omitted his junior lien. that it “cannot find any authority that

9

would justify departing from the general rule that the lien of a junior mortgage is

not affected by a judgment of foreclosure to which he was not a party”, is

unfounded. There is authority on that issue which is expressed in this court’s

opinion in Quinn Plumbing Co. v. New Miami Shores Corp., 129 So. 690, 692-693

(Fla. 1930):

If any fraud or mala fides was practiced in connection with the failure

to make the second mortgagee a party, that might constitute a

countervailing equity which would place the matter in an entirely

different light, ... If it were shown that the second mortgage was

deliberately omitted as a party ... , an entirely different question might

be presented.

Prior to the adoption of Section 45.0315, Florida Statutes, which does not

expressly require that those holding an interest be parties, the First District and the

Fourth District had ruled that an exception to a junior lien or interest surviving

foreclosure is “unclean hands.” For the Fourth District, a factor indicating unclean

hands was “the failure to intervene in a prior foreclosure of which [the junior

lienor] had notice” Posnansky v. Breckenridge, 621 So. 2d 736, 738 (Fla. 4

th

DCA

1993). In Riley v. Grissett, 556 So. 2d 473, 476 (Fla. 1

st

DCA 1990), which was

prior to the adoption of Section 45.0315, Florida Statutes, the First District held

that a leasehold interest held by a P.A. which was not a party but had notice and

participated in the case was barred from redemption based upon estoppel and clean

10

hands.

The concept of clean hands still has applicability after Section 45.0315,

Florida Statutes. In Cicoria v. Gazi, 901 So. 2d 282, (Fla. 5

th

DCA 2005), the

Fifth District reversed a judgment which allowed redemption after the foreclosure

sale and certificate of sale to a third party and remanded the case for more fact

finding after mortgagor/defendant questioned service of process with the Fifth

District holding “A party seeking justice in a court of equity must have ‘clean

hands’. Here someone has misled the court.”

The Second District’s finding that intentional omission of a junior lienholder

was of no consequence has created conflict with these decisions and this court

should resolve the conflict.

CONCLUSION

The opinion of the Second District is in express and direct conflict with the

opinions of other district courts of appeal and of this court. This court should take

jurisdiction based upon the conflicts so that the issues raised by the conflicts may

be resolved.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been served

by United States Mail, this 15th day of August 2005, upon Emmett Abdoney,

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Esquire, Emmett Abdoney P.A., 2506 W. Platt Street, Tampa, Florida 33609.

CERTIFICATE OF COMPLIANCE

I hereby certify that the Petitioner’s Amended Initial Brief in Support of

Notice to Invoke Discretionary Jurisdiction complies with the font requirements of

Rule 9.210(a)(2), Florida Rules of Appellate Procedure. The foregoing brief is in

Times New Roman 14 point font.

Respectfully submitted,

___________________________________

DAVID A. TOWNSEND

Florida Bar No.: 149560

ANITA C. BRANNON

Florida Bar No.: 318434

TOWNSEND & BRANNON

608 W. Horatio Street

Tampa, FL 33606-2228

(813) 254-0088 - Telephone

(813) 254-0093 - Fax

Attorneys for Petitioner, JANETTA

YORK.

12

APPENDIX

1. Copy of opinion from Second District Court of Appeal in Abdoney v.

York (reported at 903 So. 2d 981 (Fla. 2d DCA 2005)).

2. Copy of Order Denying Rehearing.