ELLIOT L. MILLER, APPELLANT,
v.
MANELOUS STAVROS, TRUSTEE IN BANKRUPTCY OF EDWARD J. KUBAY AND PATRICIA KUBAY, APPELLEES
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A foreclosure purchaser sought reimbursement from the surplus proceeds of a second mortgage foreclosure sale for payments he made on the first mortgage after the foreclosure decree. The court affirmed the denial of reimbursement, holding that a foreclosure purchaser cannot recover payments made to protect a senior mortgage from the mortgagor's surplus.
The court held that a foreclosure purchaser cannot recover payments made to reduce an indebtedness on a prior (senior) mortgage from the surplus proceeds. Amounts paid by a foreclosure purchaser after the decree and sale to protect a senior mortgage are not recoverable from the mortgagor or the mortgagor's trustee in bankruptcy.
“A purchaser at a mortgage foreclosure sale, who is not a named party in the cause, becomes a quasi party.”
Establishes that Miller, though not originally a party, had standing to appeal as a quasi party to the foreclosure action.
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Join FLexlaw to unlock all legal intelligenceMiller was the successful bidder at a foreclosure sale of a second mortgage held on July 8, 1964, bidding $3,025 on a property with a foreclosure judg…
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This is an appeal by a purchaser at foreclosure sale from an order relating to disbursement of a resulting surplus.
The foreclosure was of a second mortgage. The final decree of foreclosure was entered on March 11, 1964 for $2,426.89. An ensuing bankruptcy proceeding involving the defendant mortgagor delayed foreclosure sale some four months.
The appellant Elliot L. Miller, not otherwise a party, was the successful bidder at the foreclosure sale held July 8, 1964. Certificate of title was issued to him on July 21, 1964. His bid of $3,025, left a surplus of $488.97. The sale was subject to the unpaid balance on a first mortgage. Shortly after the foreclosure sale Miller paid $302.-30 on the first mortgage, representing amounts which fell due thereon for the months of April, May, June and July 1964, subsequent to the final decree prior to the foreclosure sale. Miller filed a motion for reimbursement of $302.30 out of the surplus, contending he was subrogated to the right of the second mortgagee therefor. However, the chancellor ordered disbursal of the surplus to the trustee in bankruptcy of the mortgagor, and Miller appealed.
At the outset we are met with the contention of the appellee that the appellant has no standing to appeal. The contention is not well founded. A purchaser at a mortgage foreclosure sale, who is not a named party in the cause, becomes a quasi party. 59 C.J.S. Mortgages § 754. Here, having presented a motion in the cause for relief growing out of his status as purchaser and being aggrieved by an adverse ruling thereon he was entitled to seek review by appeal. See 19 Fla.Jur., Judicial Sales § 40.
On the merits of the appeal, the appellant has failed to demonstrate reversible error. Amounts paid by the holder of the second mortgage to protect his security are properly included in a decree foreclosing the second mortgage. Waring v. O’Doniel, 102 Fla. 354, 135 So. 850, 853. Payments in reduction of an indebtedness on a prior mortgage, made by a foreclosure purchaser after decree and foreclosure sale, are not recoverable from the mortgagor. We hold, therefore, that the chancellor was eminently correct in denying the foreclosure purchaser’s motion for reimbursement out of the surplus to which the mortgagor or his trustee in bankruptcy was entitled.
For the reasons stated the order appeaieu from should be and hereby is affirmed.
Affirmed.
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Horne v. Smith, 368 So. 2d 392 (Fla. 1st DCA 1979)…tiffs repurchased the property at the foreclosure sale, plaintiffs acquired title subject to the first mortgage. A purchaser at a mortgage foreclosure sale is presumed to have made allowances for prior liens in making his bid. In Miller v. Slav-ros, 174 So. 2d 48 (Fla.3d DCA 1965), the court held: “Amounts paid by the holder of a second mortgage to protect his security are properly included in a decree foreclosing the second mortgage. . . . Payments in reduction of an indebtedness on a prior mortgage, made…
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Patron v. Am. Nat'l Bank of Jacksonville, 382 So. 2d 156 (Fla. 5th DCA 1980)…uce indebtedness on a prior mortgage by a foreclosure purchaser cannot be recovered by the purchaser from the mortgagor. Horne v. Smith, 368 So. 2d 392 (Fla. 1st DCA 1979); Provident National Bank v. Thunderbird Associates, supra; Miller v. Stavros, 174 So. 2d 48 (Fla. 3d DCA 1965). The mortgagee purchaser could have considered the outstanding tax lien on the property at the time of sale and reduced its bid commensurately, but did not do so. It could have paid the taxes between November 1 and November 10 and…
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Loralee Buchanan v. Gaines, 545 So. 2d 311 (Fla. 3d DCA 1989)…PER CURIAM. “Payments in reduction of an indebtedness on a prior mortgage, made by foreclosure purchaser after decree and foreclosure sale, are not recoverable from the mortgagor.” Miller v. Stavros, 174 So. 2d 48 (Fla. 3d DCA 1965);1 see Patron v. American Nat’l Bank of Jacksonville, 382 So. 2d 156 (Fla. 5th DCA 1980); Horne v. Smith, 368 So. 2d 392 (Fla. 1st DCA 1979); Provident Nat’l Bank v. Thunderbird Assoc., 364 So. 2d 790 (Fla. 1st DCA 1978). We there…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Waring v. O'Doniel, 102 Fla. 354 (Fla. 1931)