03-0916 CARROLL & ASSOC. V. GALINDO

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State: Florida

Court: Florida Third District Court

Docket No: 03-0916 CARROLL & ASSOC. V. GALINDO

Case Date: 11/19/2003

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2003 CARROLL & ASSOCIATES, P.A. Appellant, vs. RAFAEL GALINDO, ETC., ET AL., Appellees. ** ** ** ** ** CASE NO.: 3D03-916 CONSOLIDATED: 3D02-1345 LOWER TRIBUNAL NO.99-22568

Opinion filed November 19, 2003. An appeal from the Circuit Court for Miami-Dade County, Florida, Alan L. Postman, Judge and Ronald Dresnick, Judge. Linda L. Carroll for appellant. Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer and Norman S. Segall, for appellees. Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ. ON REHEARING WELLS, Judge. We have for consolidated review Carroll & Associates, P.A.'s appeal from a final summary judgment of foreclosure in favor of

Rafael and Nelly Galindo1 and Carroll's motion for rehearing in Carroll's earlier appeal from an order granting summary final judgment on Carroll's cross-complaint against the Galindos. For

the following reasons, we deny rehearing in Case Number 3D02-1345 regarding the summary judgment on Carroll's cross-complaint,

substituting this opinion for our earlier opinion in that matter, and reverse the final summary judgment of foreclosure which is the subject of Case Number 3D03-916. I Facts Relevant to Both Appeals In 1995, Philip Feigenblatt acquired a fee simple interest in a condominium located in Bal Harbor, Florida. He subsequently

conveyed a life estate interest in this condominium to his mother, Flora Rojas Parks, retaining the remainder interest for himself. In early 1998, Carroll obtained a $9,381 final judgment against Feigenblatt for unpaid legal fees. That judgment was recorded in

the property records of Miami-Dade County on May 28, 1998. Less than a month later, on June 17, 1998, the Galindos entered into an agreement to lease Feigenblatt's and Parks' Bal Harbor condominium until June 16, 1999 (or, if extended, until June 2000) with an option to purchase upon the Galindos' sale of another unit in the building. That agreement accorded exclusive occupancy

These actions were prosecuted by and against the Galindos individually and as trustees of the Rafael and Nelly Galindo Revocable Inter Vivos Trust. 2

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of the Feigenblatt/Parks condominium to the Galindos in exchange for the Galindos' agreement to pay, among other things,

Feigenblatt's and Parks' mortgage payments to EMC Mortgage Company. The Galindos also agreed to "satisfy the outstanding mortgage with EMC" upon closing of the sale. The Galindos thereafter timely exercised the option to

purchase the unit paying $25,000 (as required by the parties' agreement) to Feigenblatt and Parks. But before a closing could

take place, Carroll acted to protect its interest in the property by foreclosing its recorded judgment lien against Feigenblatt's remainder interest. A writ of execution was issued and a notice of levy recorded against the condominium. Sheriff's sale of Feigenblatt's In addition, a notice of interest in the

remainder

condominium was advertised, served on Feigenblatt and provided to the Galindos. Feigenblatt and the Galindos unsuccessfully sought

court intervention to cancel the public sale of Feigenblatt's remainder interest, and on February 10, 1999, with the Galindos' attorney present, the Sheriff conducted a public auction of

Feigenblatt's remainder interest in the condominium. The Galindos' attorney did not bid on their behalf, and Carroll, the highest bidder, purchased Feigenblatt's remainder interest for $4,500 and received a Sheriff's deed conveying the remainder interest to it. The Galindos continued to live in the condominium following the Sheriff's sale and made monthly mortgage payments to EMC as 3

agreed until April 1999 when they ceased making payments. In September 1999, Independent National Mortgage Corporation, claiming to be the holder of a note secured by a mortgage on this property, brought suit to foreclose the mortgage.2 Feigenblatt,

Parks, the Galindos, and Carroll were joined as defendants in the foreclosure action as having some right, title or interest in the property. One month later, the Galindos brought a separate suit against Feigenblatt, Parks, and Sally Sawh, their prior attorney, seeking (1) title to Parks' life estate via specific performance of the Feigenblatt/Parks agreement; (2) damages against Feigenblatt and Parks for the diminished value of the condominium sale contract (due to Carroll's ownership of the remainder interest); and (3) damages against Sawh for failing to bid on Feigenblatt's remainder interest at the Sheriff's sale. In that action, the Galindos

expressly elected to be bound by their agreement with Feigenblatt and Parks, and although they had failed to make monthly mortgage payments as agreed and had been joined as defendants in an action to foreclosure that mortgage, they affirmatively alleged that they had "fully performed all that was to be done on their part [under the agreement]" and stood "ready, willing and able to do any and all further things which . . . may be required of them." On this appeal, the parties do not dispute that this was the mortgage referred to in the Feigenblatt/Parks-Galindo agreement as the EMC mortgage. 4
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In the meantime, the Galindos asked the court in the mortgage foreclosure action to permit them, "as contract purchasers and tenants of the [Feigenblatt/Parks] property," to redeem the

mortgage and to enter an order subrogating them to the mortgagee's rights in the foreclosure action. February 2000, while this request Carroll objected. was pending, the In late Galindos

obtained the "payoff figures" for, and paid off, the loan secured by the Independent National mortgage

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