CLARENCE REDDING, SR., APPELLANT,
v.
STOCKTON, WHATLEY, DAVIN & CO., APPELLEE
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Redding appeals an order granting a writ of possession after foreclosure of property he occupied as a tenant. The court affirmed, holding that a foreclosure action terminates a tenant's leasehold interest when the tenant is joined as a party, and the mortgagee-purchaser need not follow separate landlord-tenant eviction procedures.
The court held that a foreclosure action terminates a tenant's leasehold interest when the tenant is joined as a party, and the mortgagee-purchaser need not follow separate county court eviction procedures under Chapter 83. The writ of possession is a proper ancillary remedy in the foreclosure action itself.
[1] A foreclosure action, in which a tenant is joined as a party, terminates the tenant's leasehold interest.
[2] A writ of possession is an appropriate remedy for a purchaser of foreclosed property to remove a former tenant who occupied the property under a lease derived from the fo…
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Join FLexlaw to unlock all legal intelligence“possession, as well as title, is at issue in a foreclosure action in respect to all parties to the action”
Establishes that foreclosure actions determine both possession and title, rejecting the tenant's argument that only title is at issue
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Join FLexlaw to unlock all legal intelligenceStockton, as mortgagee, sued to foreclose property occupied by Redding, naming Redding and his landlord as defendants and seeking to foreclose any rig…
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COBB, Chief Judge.
Appellant, Clarence Redding, Sr., timely appeals an order granting appellee, Stockton, Whatley, Davin & Co. (Stockton), a writ of possession after a judgment of foreclosure, which evicted Redding from foreclosed property.
On September 25, 1984, Stockton, as mortgagee, sued Redding’s landlord, Red-ding and all potential lien claimants, to foreclose the property occupied by Red-ding. Specifically, Redding was sued for “any right, title or interest [he] may claim in the subject property by virtue of a lease or rental agreement.” Redding answered the complaint on October 23, 1984. The lease, apparently an oral one, was entered into subsequent to the mortgage. On March 11, 1985, a final judgment of foreclosure was entered against Redding and all other defendants. The property was then sold to Stockton at a public auction. A notice of the sale was sent to all defendants. On May 24, 1985, Stockton moved for a writ of possession, asking that Red- ding be removed from the subject property. The writ was granted on the same day by the circuit court which granted the original foreclosure. A stay of the writ was denied, and this appeal ensued.
Redding first contends that the foreclosure did not terminate his tenancy because it did not track the landlord-tenant act provisions of Chapter 83, Florida Statutes (1983). He argues that “a foreclosure action does not concern the possession interest of a tenant, but only the ownership and security interest of the mortgagor, mortgagee and other lien holders.” Therefore, according to Redding, the mortgagee, after obtaining a certificate of title following foreclosure, was obligated to commence a separate eviction proceeding against him in county court pursuant to Chapter 83.
This contention is clearly erroneous. It ignores Florida case law, which shows that possession, as well as title, is at issue in a foreclosure action in respect to all parties to the action. See Ray v. Hooker, 65 Fla. 265, 61 So. 500 (1913); Dundee Naval Stores Co. v. McDowell, 65 Fla. 15, 61 So. 108 (1913); Wilmott v. Equitable Building & Loan Assn., 44 Fla. 815, 33 So. 447 (1903); see also Florida Rule of Civil Procedure 1.580. The foreclosure action terminated the leasehold of Redding, since he was joined as a party, and the purchaser at sale (Stockton) did not step into a landlord-tenant relationship with Redding. The relationship at that point was owner and trespasser — the exact situation for which a writ of possession is required. Redding’s lease was extinguished simultaneously with his landlord’s title, from whence it was derived.
The appellant’s second argument is also without substance. He contends that section 34.011(2), Florida Statutes (1983), gives exclusive jurisdiction to the county court in regard to landlord-tenant possessory actions. The argument fails for two reasons: (1) Redding was never Stockton’s tenant, as explained in the preceding paragraph, and (2) section 34.011 relating to the county court’s jurisdiction in possessory actions against real property expressly recognizes and excepts from county court jurisdiction the exclusive jurisdiction of the circuit court in all cases in equity. See § 26.012, Fla.Stat. (1983). Foreclosure is a case in equity, and a writ of possession is ancillary to it.
AFFIRMED.
DAUKSCH and SHARP, JJ., concur.
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Citator
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Herrell v. Seyfarth, 491 So. 2d 1173 (Fla. 1st DCA 1986)…d DCA 1983) (circuit court had jurisdiction over a landlord and tenant action because tenant’s claim for damages in excess of $5,000 met the good faith test to invoke the jurisdiction of the circuit court); Redding v. Stockton, Whatley, Davin & Co., 488 So. 2d 548 (Fla. 5th DCA 1986) (section 34.011(2), relating to the county court's jurisdiction in possessory actions, excepts from that court’s jurisdiction all cases in equity). . Count III of sublessor's amended counterclaim, filed on August 3, 1984, allege…
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Sher v. Countrywide Home Loans, Inc., 848 So. 2d 1246 (Fla. 4th DCA 2003)…w and shall not be reversed absent competent record support. See generally Marcus v. Miller, 663 So. 2d 1340 (Fla. 4th DCA 1995). In filing the complaint for civil theft, appellants relied upon the case of Redding v. Stockton, Whatley, Davin & Co., 488 So. 2d 548 (Fla. 5th DCA 1986). That case suggests that even though a property has been foreclosed on and sold, a writ of possession is nevertheless required for the owner to remove the lessee from the property. Appellants also relied upon the language of the…
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Perez v. Kossow, 602 So. 2d 1372 (Fla. 3d DCA 1992)…n price” mortgage debt based on the clerk’s incorrect calculation. A mortgage foreclosure is an equitable action. Southern Floridabanc Fed. Sav. & Loan Ass’n v. Buscemi, 529 So. 2d 303 (Fla. 4th DCA 1988); Redding v. Stockton, Whatley, Davin & Co., 488 So. 2d 548 (Fla. 5th DCA), caused dismissed, 492 So. 2d [*1374] 1334 (Fla.1986). Neither party should reap unfair benefit from the foreclosure clerk’s mistake. In order to do justice between the parties, the case is remanded to allow Perez thirty days to pay t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dundee Naval Stores Co. v. McDowell, 65 Fla. 15 (Fla. 1913)
- Ray v. Hocker, 65 Fla. 265 (Fla. 1913)
- Wilmott v. The Equitable Bldg. & Loan Ass'n, 44 Fla. 815 (Fla. 1902)