TAGGED OPINION

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

www.flsb.uscourts.gov

In re:

KARLENE S. PARKER Case No. 21-10619-SMG

Debtor. Chapter 13

_____________________________/

MEMORANDUM OPINION AND ORDER DETERMINING ESTATE’S 

INTEREST IN PROPERTY SOLD AT PREPETITION EXECUTION SALE

Karlene S. Parker filed this Chapter 13 bankruptcy case after a sheriff’s 

execution sale of real property she owned, but before the sheriff delivered a sheriff’s 

deed to the purchaser. Because the deed had not been delivered as of her bankruptcy 

petition date, she contends the real property is property of her bankruptcy estate, and 

that the automatic stay prevented the sheriff from issuing the deed to the purchaser 

postpetition. Creditor Financial Asset Recovery Corp (“FARC”) and purchaser 

Patrick’s Custom Painting, however, both argue that the real property is not property 

Scott M. Grossman, Judge

_____________________________________________________________________________ United States Bankruptcy Court

ORDERED in the Southern District of Florida on June 7, 2021.

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of the estate because the execution sale was completed – and title passed to Patrick’s 

Custom Painting – at the conclusion of the execution sale, upon payment of the 

purchase price. To determine the estate’s interest in the real property as of the 

petition date – and the effect of the issuance of a sheriff’s deed postpetition – the 

Court must examine Florida law on execution sales and Federal bankruptcy law on 

property of the estate and the automatic stay, as applied to the facts of this case.

I. Facts.

The material facts are undisputed. On June 21, 2001, creditor First Select, Inc. 

(“First Select”) obtained a default final judgment for $7,006.90 against Ms. Parker in 

the County Court in and for Broward County, Florida (the “County Court”), bearing 

interest at 11 percent per annum (the “Default Final Judgment”). First Select 

recorded the Default Final Judgment in the official records of Broward County, 

Florida on July 18, 2001. The Default Final Judgment has since been re-recorded and 

assigned to FARC.

On June 14, 2018, the County Court issued a writ of execution in respect of the 

Default Final Judgment. A few months later, then-Broward County Sheriff Scott J. 

Israel issued a Notice of Sheriff’s Levy (“Notice of Levy”). The Notice of Levy stated 

that on October 23, 2018, a deputy sheriff levied upon all of the rights, title, and 

interest of Ms. Parker in and to the real property located at 2861 SW 88 Avenue, 

Miramar, FL 33025 (the “Real Property”), in order to satisfy the Default Final 

Judgment. The Notice of Levy also indicated that if the Default Final Judgment was 

not satisfied, the sheriff would sell the Real Property.

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Sheriff Israel then issued a Notice of Sheriff’s Sale, which scheduled an 

execution sale of the Real Property for January 8, 2019. For reasons not clear from 

the record, that sale never occurred. Then on November 30, 2020, new Broward 

County Sheriff Gregory Tony issued a second Notice of Sheriff’s Sale (the “Second 

Sale Notice”), scheduling an execution sale for January 12, 2021. This execution sale 

went forward as scheduled, and Patrick’s Custom Painting was the highest bidder for 

the Real Property at $45,000.00, which it paid at the conclusion of the auction. After 

payment in full of FARC’s Default Final Judgment (with all accrued interest), as well 

as all costs and expenses associated with the execution sale, a surplus of $21,711.06

was returned to Ms. Parker.1

Ms. Parker then filed this bankruptcy case on January 25, 2021 (the “Petition 

Date”). Two days later – on January 27, 2021 – Sheriff Tony issued a sheriff’s deed to 

Patrick’s Custom Painting (the “Sheriff’s Deed”) relating back to the date of the 

execution sale, January 12, 2021. The Sheriff’s Deed states, in relevant part, that the 

sheriff “hath granted, bargained, sold and conveyed, and by these presents doth 

grant, bargain, sell and convey unto Patrick’s Custom Painting . . . all the estate, 

right, title and interest, which [Ms. Parker] had on the day of 12th day of January 

A.D., 2021, or at any time afterwards, of, in and to” the Real Property. Shortly 

thereafter, Ms. Parker filed her Motion for Clarification that 88th Avenue is Property 

of the Bankruptcy Estate2 (the “Motion”).

 

1 ECF No. 40, ¶ 22. 2 ECF No. 15.

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II. Arguments.

Ms. Parker argues that the Real Property is property of her bankruptcy estate 

under 11 U.S.C. § 541 because the Sheriff’s Deed was not issued until after she filed 

for bankruptcy, and issuance of the deed therefore violated the automatic stay of 11 

U.S.C. § 362(a). The bulk of her argument that the sale occurred postpetition is by 

analogy to Florida foreclosure sales and several cases holding that a foreclosure sale 

is not complete under Florida law until the state court clerk files a certificate of sale.3

FARC filed an initial response4 in which it argued that the sale occurred on 

January 12, 2021, when Patrick’s Custom Painting paid the $45,000 purchase price 

to the sheriff at the execution sale. Unlike a foreclosure sale, an execution sale is not 

subject to a debtor’s right of redemption, according to FARC. Thus, the sale is 

completed upon the conclusion of the auction and payment of the purchase price, and 

not when the sheriff issues a sheriff’s deed.

After a preliminary hearing, the Court requested further briefing and entered 

a briefing order.5 Ms. Parker then timely filed a memorandum of law6 in which she 

expounded upon the arguments raised in her Motion. FARC and Patrick’s Custom 

Painting timely filed memoranda in opposition to the Motion.7 Both argued the sale 

was completed at the conclusion of the auction when Patrick’s Custom Painting paid 

 

3 In a footnote to her Motion, Ms. Parker also raised an issue as to service of the Second Sale Notice, 

but then “concede[d] that is not an issue to be decided by the Court.” Id. at 2, n.2. 4 ECF No. 29. 5 ECF No. 31. 6 ECF No. 32.

7 ECF Nos. 40, 41.

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the bid price, that title passed to Patrick’s Custom Painting at that time, and that 

the subsequent issuance of the Sheriff’s Deed was a ministerial act that related back 

to the auction date and therefore did not violate the automatic stay. Although the 

Court’s briefing order did not require a reply brief, Ms. Parker nevertheless filed one.8

Her reply included many of the same arguments from her Motion and her 

memorandum of law. But this time she also added a substantive argument

challenging service of the Second Sale Notice. As discussed below, however, the Court 

will not consider this argument because Ms. Parker previously waived it, and then 

impermissibly raised it for the first time in a reply brief.

III. Analysis.

The commencement of a bankruptcy case creates an estate comprised of all 

legal or equitable interests of the debtor in property as of the commencement of the 

case.9 Those property interests, though, “are created and defined by state law,” unless 

a federal interest requires a different result.10 To determine what interest (if any) 

Ms. Parker’s bankruptcy estate had in the Real Property as of her Petition Date, the 

Court must look to Florida law – the law of the state where the Default Final 

Judgment was entered and enforced, and where the Real Property is located.11 If the 

Court determines Ms. Parker had an interest in the Real Property as of the Petition 

Date, then Federal bankruptcy law would determine whether that interest 

 

8 ECF No. 42. 9 11 U.S.C. § 541(a)(1).

10 Butner v. U.S., 440 U.S. 48, 55 (1979); Southtrust Bank of Ala. v. Thomas (In re Thomas), 883 F.2d 

991, 995 (11th Cir. 1989).

11 In re Caldwell, 457 B.R. 845, 851 (Bankr. M.D. Fla. 2009).

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constituted property of the estate.12 And if that interest constituted property of the 

estate, bankruptcy law would likewise dictate whether the postpetition issuance of 

the Sheriff’s Deed violated the automatic stay of Bankruptcy Code section 362(a), 

which stays, among other acts, (1) the commencement or continuation of a prepetition

legal proceeding against the debtor; (2) the enforcement of a prepetition judgment 

against the debtor or against property of the estate; (3) acts to obtain possession of 

property of the estate or to exercise control over property of the estate; (4) acts to 

create, perfect, or enforce a lien against property of the estate; (5) acts to create, 

perfect, or enforce a prepetition lien against property of the debtor; and (6) acts to 

collect on prepetition claims against the debtor.13

A. Judgment Collection Under Florida Law.

A determination of what interest (if any) Ms. Parker had in the Real Property 

as of the Petition Date requires an understanding of Florida judgment collection 

procedures. Under Florida law, there are multiple ways to collect a money 

judgment,14 including by writ of garnishment,15 by proceedings supplementary,16 and 

by execution.17

 

12 In re Daugherty, 261 B.R. 735, 738 (Bankr. M.D. Fla. 2000).

13 11 U.S.C. § 362(a)(1) – (6). 14 See Fla. R. Civ. P. 1.570(a) (“Final process to enforce a judgment solely for the payment of money 

shall be by execution, writ of garnishment, or other appropriate process or proceedings.”).

15 Fla. Stat. §§ 77.01 – 77.28.

16 Fla. Stat. § 56.29.

17 Fla. Stat. §§ 56.0101 – 56.28.

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1. Judgment Liens.

One of the first steps is usually to obtain a judgment lien on the judgment 

debtor’s real18 or personal property.19 To obtain a judgment lien on real property, the 

judgment creditor must record a certified copy of the judgement in the official records 

or judgment lien records of the county in which a judgment debtor’s real property is 

located.20 To obtain a judgment lien on personal property, a judgment creditor must 

file a judgment lien certificate with the Florida Department of State.21 Upon 

recording, a judgment lien on real property will be valid for an initial period of ten 

years.22 That lien may be extended for an additional ten years if it is re-recorded in 

accordance with Florida Statute § 55.10(2).23 The judgment lien will expire twenty 

years after the judgment was entered, or earlier upon satisfaction of the judgment.24

Once a judgment creditor obtains a judgment lien, it then has a number of 

ways to enforce that lien to seek payment of its judgment. One option is to take no 

action and simply wait for the property to be sold, in which case the judgment lien 

would be paid if there are sufficient proceeds from the sale to satisfy the lien. Another 

choice is for the judgment lien creditor to file a new lawsuit to foreclose its judgment 

 

18 See Fla. Stat. § 55.10.

19 See Fla. Stat. §§ 55.202, 55.203. 20 Fla. Stat. § 55.10(1). 21 Fla. Stat. § 55.202. 22 Fla. Stat. § 55.10(1).

23 The record is not clear whether the Default Final Judgment was timely re-recorded and therefore 

extended for an additional ten years. But Florida Statute § 55.205(1) states that even if the judgment 

lien had lapsed, the judgment creditor may still “proceed against the judgment debtor’s property 

through any appropriate judicial process.” Fla. Stat. § 55.205(1).

24 Fla. Stat. §§ 55.10(3); 55.081. See Park Fin. of Broward, Inc. v. Jones, 94 So. 3d 617, 619 (Fla. 4th 

DCA 2011) (“a judgment becomes a lien on real property in any county where it is properly recorded 

for an initial period of 10 years, with the possibility of it being extended for up to 10 years.”).

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lien and ultimately seek a judicial sale of the property. Yet another method is to 

attempt collection through execution.25

2. Executions.

Execution is a type of final process under Florida law used to enforce a 

judgment.26 Florida courts have described “execution” as “‘[t]he act of carrying into 

effect the final judgment or decree of a court; the writ which directs and authorizes 

the officer to carry into effect such judgment.’”27 To obtain an execution, a judgment 

creditor must first record its final judgment,28 after which it then “may request that 

the clerk of court issue a writ of execution to satisfy the amount of a judgment.”29 An 

execution may issue any time during the 20-year life of the judgment on which it is 

based.30 Once issued, an execution is valid for the life of the judgment.31 The writ of 

execution issued by the clerk of court is “‘directed to all and singular sheriffs of the 

state,’ in order to satisfy the amount of the judgment.”32 It may then be used to levy 

 

25 Fla Stat. §§ 56.0101 – 56.28.

26 Burshan v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 805 So. 2d 835, 839 (Fla. 4th DCA 2001) 

(citing Fla. R. Civ. P. 1.570).

27 Raulerson v. Peeples, 81 Fla. 206, 208, 87 So. 629, 630 (1921) (quoting Bouvier’s Law Dictionary).

28 Fla. R. Civ. P. 1.550(a).

29 Rodriguez v. Supersonic of Fla., Inc., No. 20-23459-CIV, 2021 WL 633215, at *2 (S.D. Fla. Jan. 29, 

2021), report and recommendation adopted, No. 20-23459-CIV, 2021 WL 619467 (S.D. Fla. Feb. 17, 

2021) (citing Fla. Stat. § 56.021); see also Fla. R. Civ. P. 1.550(a) (“Executions on judgments shall issue 

during the life of the judgment on the oral request of the party entitled to it or that party’s attorney 

without praecipe.”).

30 Park Fin. of Broward, 94 So. 3d at 619; Corzo Trucking Corp. v. West, 61 So. 3d 1285, 1288-89 (Fla. 

4th DCA 2011).

31 Burshan, 805 So. 2d at 839 (citing Fla. Stat. § 56.021; Fla. R. Civ. P. 1.550(a)). 32 Newman v. Ormond, No. 09-21435-CIV, 2011 WL 2160803, at *2 n.4 (S.D. Fla. June 1, 2011), aff’d, 

456 F. App’x 866 (11th Cir. 2012) (citing Fla. Stat. § 56.021); Moss v. Am. Priv. Equity, LLC, No. 8:18-

CV-587-T-23JSS, 2020 WL 7414397, at *2 (M.D. Fla. Oct. 28, 2020).

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on different types of property, including real property, goods and chattels, equities of 

redemption, and stock in corporations.33

3. Levies.

After a judgment creditor obtains an execution, the next step is for the sheriff 

to levy on the judgment debtor’s property. A sheriff is obligated to levy on any 

property specifically described in a writ of execution.34 Where no property is 

specifically described in the writ, the sheriff must levy upon any property in the 

defendant’s possession that is described in instructions for levy, or upon specific 

instructions from the plaintiff or its attorney, any property registered to the 

defendant either on current county tax rolls or under any law of the United States or 

of the state.35 Levy instructions delivered to the sheriff must state the balance due 

on the writ.36 When making a levy request, the levying creditor must deliver to the 

sheriff an affidavit required by Florida Statute § 56.27(4) (the “Execution Affidavit”). 

For a levy on real property, the Execution Affidavit must include:

an attestation by the levying creditor or the levying creditor’s attorney 

of record that he or she has reviewed the records of the clerk of the court 

of the county where the property is situated, or that he or she has 

performed or reviewed a title search, and that the information contained 

in the affidavit, including a disclosure of all judgment liens, mortgages, 

financing statements, tax warrants, and other liens against the real 

property, based on that review or title search is true and correct.37

 

33 Fla. Stat. § 56.061. 34 Fla. Stat. § 30.30(1).

35 Id.

36 Fla. Stat. § 30.30(1)(b).

37 Fla. Stat. § 56.27(4)(a).

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4. Execution Sales.

After the sheriff levies on the judgment debtor’s property, the sheriff (or his 

deputy) will then conduct an execution sale of the levied property.38 Execution sales 

in Florida take place without judicial supervision,39 and with the sheriff acting only 

“in a ministerial capacity.”40 Florida Statute § 56.21 sets forth the procedures for an 

execution sale. The statute requires that notice of an execution sale must be given by 

advertisement once each week for four successive weeks in a newspaper published in 

the county in which the sale is to take place.41 The sale date for real or personal 

property must be not more than 30 days after the first advertisement appears.42 On 

or before the date of the first publication or posting of the notice of an execution sale, 

the sheriff must also provide a copy of the notice by certified mail to the judgment 

debtor’s attorney of record or, if there is no attorney of record, then to the judgment 

debtor at his or her last known address.43 The Execution Affidavit must be provided 

to the sheriff before the first publication or posting of the sale notice.44 And when 

levying on real property, notice of the levy and execution sale, as well as a copy of the 

Execution Affidavit, must be provided to the property owner of record, plus each other 

 

38 See State ex rel. Raulerson v. Sloan, 134 Fla. 632, 634–35, 184 So. 128, 130 (1938) (“An execution 

sale is a sale of property by a sheriff or his deputy, in virtue of his authority as an officer holding 

process.”).

39 In re King, 463 B.R. 555, 566 (Bankr. S.D. Fla. 2011); Sloan, 134 Fla. at 635.

40 See McAlice v. Andersen, 403 So.2d 563, 565 (Fla. 3d DCA 1981) (citing Camp v. Moseley, 2 Fla. 171 

(1848)).

41 Fla. Stat. § 56.21. 42 Id.

43 Id. This requirement applies even in the case of judgments entered by default. Id. 44 Fla. Stat. § 56.27(4).

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person holding a mortgage or other lien against the real property as disclosed in the 

Execution Affidavit.45

The execution sale must take place at the time, date, and place advertised in 

the notice of the sheriff’s sale, on any day of the week except Saturday and Sunday.46

At the sale, the sheriff will sell the property to the highest bidder, who “acquires no 

title to the thing purchased until payment of the purchase price.”47 Upon payment of 

the purchase price and the cost of the deed or bill of sale, Florida Statute § 56.25 then 

requires the officer making the sale to execute and deliver to the purchaser a deed or 

bill of sale to the property.48 There is a presumption under Florida law that a sheriff 

has properly conducted an execution sale.49 But, a bill of sale may be set aside if a 

sheriff gives it to the purchaser without receiving payment of the purchase price,50 or 

if the statutory notice requirements have been “ignored.”51

5. No Right of Redemption in Execution Sales.

An important aspect of execution sales under Florida law is that there is no 

right of redemption. A right of redemption – which is sometimes called an “equity of 

redemption” – “generally refers to the right of an entity that has granted or suffered 

a lien on its property to pay off the debt and recover or redeem the property.”52 Under 

 

45 Fla. Stat. § 56.21.

46 Fla. Stat. § 56.22(1).

47 Flagship State Bank of Jacksonville v. Carantzas, 352 So. 2d 1259, 1262–63 (Fla. 1st DCA 1977) 

(citing 33 C.J.S. Executions s 289 (1942)).

48 Fla. Stat. § 56.25.

49 Quinn R. Barton, Inc. v. Johnson, 143 Fla. 245, 249, 196 So. 489, 491 (1940).

50 Carantzas, 352 So. 2d at 1262–63 (citing 30 Am. Jur. 2d, Executions, section 382 (1967)).

51 Wofford v. Dykes, 67 Fla. 118, 120, 64 So. 451, 452 (1914).

52 5 COLLIER ON BANKRUPTCY ¶ 541.04 (16th ed. 2021). A right of redemption – if one exists under 

applicable non-bankruptcy law – is a property interest that becomes property of the bankruptcy estate 

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Florida law, that right is codified in Florida Statute § 45.0315, which provides that a 

mortgagor (or any subordinate interest holder) may cure a mortgagor’s indebtedness 

and prevent a foreclosure sale by paying the judgment amount, before the later of the 

filing of a sale certificate or a court-ordered deadline in the foreclosure judgment.53

But, the right of redemption applies only with respect to a judicial sale (e.g., a 

foreclosure sale);54 it does not apply to an execution sale.55

6. Other Differences Between Execution Sales and Judicial Sales.

Execution sales differ from judicial sales in several other ways as well.56 In an 

execution sale, “the sheriff gets his authority by virtue of the execution and is guided 

in the sale by the law rather than by the court.”57 An execution sale also requires no 

confirmation unless required by statute.58 A judicial sale, on the other hand, is 

conducted by the clerk of the court by court order, disposes of specifically described 

property as a result of judicial proceedings,59 and must be confirmed by the court.60

After the foreclosure sale, the clerk must complete and file a certificate of sale.61

Importantly, once the clerk files a certificate of sale, the right of redemption under 

 

under 11 U.S.C. § 541 upon the filing of a bankruptcy petition. But, importantly, the underlying real 

property itself that is subject to the redemption right would not be property of the estate. Id.

53 Fla. Stat. § 45.0315.

54 Id. (“Otherwise, there is no right of redemption.”).

55 Fla. Stat. § 45.031(9) (“This section shall not apply to property sold under executions.”).

56 See Sloan, 134 Fla. at 634–35; see also Bankers Tr. Co. v. Edwards, 849 So. 2d 1160, 1162 (Fla. 1st 

DCA 2003) (Ervin, J., dissenting) (describing the differences between judicial sales and execution sales

in a comprehensive chart). 57 Sloan, 134 Fla. at 634-35.

58 Id.

59 Bankers Tr., 849 So. 2d at 1162.

60 Sloan, 134 Fla. at 634-35; Fla. Stat. § 45.031.

61 Fla. Stat. § 45.031(4).

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Florida Statute § 45.0315 is extinguished.62 If no objections to the sale are filed within 

10 days after the certificate of sale is filed, then the clerk must complete and file a 

certificate of title.63 Upon filing the certificate of title, “the sale shall stand confirmed, 

and title to the property shall pass to the purchaser named in the certificate without 

the necessity of any further proceedings or instruments.”64 The clerk must then 

record the certificate of title.65

B. Conveyance of Real Property Under Florida Law.

With this explanation of Florida judgment collection procedures, the next step 

to determine what interest (if any) Ms. Parker had in the Real Property as of the 

Petition Date is to understand how real property is conveyed under Florida law. 

Florida Statute § 689.01 sets forth the following requirements:

No estate or interest of freehold, or for a term of more than 1 year, or 

any uncertain interest of, in, or out of any messuages, lands, tenements, 

or hereditaments shall be created, made, granted, transferred, or 

released in any manner other than by instrument in writing, signed in 

the presence of two subscribing witnesses by the party creating, making, 

granting, conveying, transferring, or releasing such estate, interest, or 

term of more than 1 year, or by the party’s lawfully authorized agent, 

unless by will and testament, or other testamentary appointment, duly 

made according to law; and no estate or interest, either of freehold, or of 

term of more than 1 year, or any uncertain interest of, in, to, or out of 

any messuages, lands, tenements, or hereditaments, shall be assigned 

or surrendered unless it be by instrument signed in the presence of two 

subscribing witnesses by the party so assigning or surrendering, or by 

the party’s lawfully authorized agent, or by the act and operation of law; 

provided, however, that no subscribing witnesses shall be required for a 

lease of real property or any such instrument pertaining to a lease of 

real property. No seal shall be necessary to give validity to any 

 

62 Fla. Stat. § 45.0315; Garcia v. Rivas, Case No. 15-Civ-21274-COOKE, 2016 WL 11549646, at *2 

(S.D. Fla. Mar. 30, 2016) (citing In re Jaar, 186 B.R. 148, 154 (Bankr. M.D. Fla 1995)).

63 Fla. Stat. § 45.031(5).

64 Fla. Stat. § 45.031(6).

65 Id.

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instrument executed in conformity with this section. Corporations may 

execute any and all conveyances in accordance with the provisions of 

this section or ss. 692.01 and 692.02.66

In addition to these statutory provisions, Florida courts have identified certain other 

requirements to validly convey real property under Florida law.67 First, the deed or 

other conveyance instrument “must be supported by at least nominal 

consideration.”68 Next, the deed or other instrument must identify or describe the 

real property.69 And finally, the deed or other instrument must be delivered to the 

grantee.70 Thus, the requirements to validly convey real property under Florida law 

can be distilled down to the following five elements:71

(1) a written instrument conveying ownership of the real property;

(2) the written instrument must be executed by the grantor and 

witnessed by two subscribing witnesses;

(3) the written instrument must be supported by consideration;

(4) the written instrument must sufficiently describe the real property; 

and

(5) the written instrument must be delivered to the grantee.

Under Florida law a deed takes effect upon delivery, and nothing passes until 

delivery.72 Indeed, Florida cases hold that “[a] deed is essentially worthless as an 

 

66 Fla. Stat. § 689.01(1); see also U.S. v. Viomar Co., 616 F. Supp. 24, 26 (S.D. Fla. 1985) (“It is, of 

course, black letter law that title to land may not be transferred orally.”) (citing Watrous v. Morrison, 

33 Fla. 261, 14 So. 805 (1894)).

67 Caldwell, 457 B.R. at 851-52. 68 Id. at 852 (citing Kingsland v. Godbold, 456 So. 2d 501, 502 (Fla. 5th DCA 1984)). A recitation of 

consideration in the deed raises a presumption of supporting consideration. Id. (citing Kingsland, 456 

So. 2d at 502).

69 Id. (citing Simons v. Tobin, 89 Fla. 321, 104 So. 583, 584 (1925)).

70 Id. (citing McCoy v. Love, 382 So. 2d 647, 649 (Fla. 1979) (“Without delivery, nothing passes to the 

grantee.”)).

71 Id. at 849.

72 Berry v. Berry, 992 So. 2d 898, 900 (Fla. 2d DCA 2008) (citing McCoy, 382 So.2d at 649).

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instrument of title without delivery, even if delivery may have been intended but 

failed due to an accident.”73 But, Florida law does recognize constructive delivery of 

a deed; actual manual delivery is not always required.74 To determine whether a deed 

has been delivered, Florida courts look to “whether the grantor retained the ‘locus 

poenitentiae,’ or opportunity to change his or her mind.”75 If the grantor retained the 

opportunity to change his or her mind, then there is no delivery.76 But if the grantor 

“parts with the control of the deed, or evinces an intention to do so, and to pass it to 

the grantee, though he may retain the custody or turn it over to another, or place it 

upon record, the delivery is complete.”77 The grantor’s intention is therefore the 

determining factor.78 Did the grantor intend to reserve the right to change his or her 

mind?79 If not, then constructive delivery of a deed may suffice to transfer title under 

Florida law.

One reported decision applying Florida law, albeit in the context of a federal 

habeas corpus proceeding, demonstrates how courts have applied the concept of 

constructive delivery. In Frances v. Tucker,80 a defendant convicted of burglary 

argued he was not criminally liable because he owned the condominium units he was 

accused of burglarizing at the time of the crime. The state court record from which 

 

73 Sargent v. Baxter, 673 So. 2d 979, 980 (Fla. 4th DCA 1996) (citing Lance v. Smith, 123 Fla. 461, 468, 

167 So. 366, 369 (1936); Parramore v. Parramore, 371 So.2d 123, 124 (Fla. 1st DCA 1978)).

74 Id.

75 Id. (citing Smith v. Owens, 91 Fla. 995, 1002, 108 So. 891, 893 (1926)).

76 Id.

77 Id.

78 Id.; Howarth v. Moreau, 430 So. 2d 576, 578 (Fla. 5th DCA 1983).

79 Sargent, 673 So. 2d at 980 (citing Parramore, 371 So.2d at 124).

80 No. 3:09CV411/MCR/EMT, 2012 WL 3887516, at *23 (N.D. Fla. Feb. 6, 2012), report and 

recommendation adopted, No. 3:09CV411/MCR/EMT, 2012 WL 3888222 (N.D. Fla. Sept. 6, 2012).

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the Magistrate Judge quoted in her Report and Recommendation noted that although 

the purchaser at the sheriff’s execution sale did not receive a sheriff’s deed until the 

day after the execution sale, the purchaser purchased the condominiums “[a]t the 

conclusion of the Sheriff’s sale on December 6, 2006 . . . and became entitled to a 

deed.”81 “In other words, once the [purchaser] paid the purchased [sic] price of $1,000, 

any ownership interest the Defendant had in the condominiums was extinguished. 

All of the Defendant’s interest in the properties had been conveyed to the 

[purchaser].”82 The defendant was therefore not the owner of the property at the time 

of the burglary.83 Although this decision did not use the term “constructive delivery,” 

its analysis is consistent with the notion that there may be constructive delivery of a 

sheriff’s deed at the conclusion of an execution sale, even if the actual, physical deed 

was not delivered until later.

C. Application of Florida Law.

In Ms. Parker’s case, there was a written instrument conveying ownership of 

the Real Property: the Sheriff’s Deed. The Sheriff’s Deed was executed by the grantor 

(Sheriff Gregory Tony) and was subscribed by two witnesses. The Sheriff’s Deed was 

also supported by consideration – the $45,000 purchase price paid by Patrick’s 

Custom Painting – as recited in the Sheriff’s Deed. And the Sheriff’s Deed included 

the specific legal description of the Real Property. So the only issue here is as to 

 

81 Id. (emphasis in original) (citing Fla. Stat. § 56.25).

82 Id.

83 Id.

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delivery of the Sheriff’s Deed to Patrick’s Custom Painting, which occurred on 

January 27, 2021 – two days after the Petition Date.

But Florida Statute § 56.25 requires a sheriff to execute and deliver a deed to 

the purchaser at an execution sale after payment of the purchase price and the cost 

of the deed. The sheriff has no discretion under the statute to not issue the deed, and 

therefore, as a matter of law, he cannot change his mind. The mandate of Florida 

Statute § 56.25 thus leads to the conclusion that the Sheriff’s Deed here was 

constructively delivered to Patrick’s Custom Painting at the conclusion of the 

execution sale, upon payment of the purchase price and related costs. Therefore, 

under Florida law, Ms. Parker had no legal or equitable interest in the Real Property 

as of the Petition Date, because all steps necessary to convey title to Patrick’s Custom 

Painting under Florida law had already been accomplished.

D. Federal Bankruptcy Law.

Having determined that under Florida law Ms. Parker had no legal or 

equitable interest in the Real Property as of the Petition Date, the Court must now 

turn to Federal Bankruptcy law to determine whether any interest in the Real 

Property was property of her bankruptcy estate under 11 U.S.C. § 541, and whether 

issuance of the Sheriff’s Deed violated the automatic stay of 11 U.S.C. § 362(a).

Several reported bankruptcy decisions with similar facts offer helpful guidance to 

determine these issues.

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1. Case Law Under the Bankruptcy Code.

a. In re Pulcini.

In The Chase Manhattan Bank v. Pulcini (In re Pulcini),84 Chase Manhattan 

Bank (“Chase”), which held a mortgage on the debtors’ property, obtained a 

foreclosure judgment and scheduled a sheriff’s sale of the property. The debtors then 

filed a chapter 7 bankruptcy petition, staying the sale. After converting their case to 

chapter 13, it was dismissed a few months later. The sheriff’s sale was rescheduled. 

This time, the sale occurred and Chase was the highest bidder. It paid the sale price 

and related costs to the sheriff. But before the sheriff delivered the sheriff’s deed to

Chase, the debtors filed another chapter 7 bankruptcy case. Chase then moved for 

relief from the automatic stay to permit it to receive and record the sheriff’s deed, and 

to initiate ejectment proceedings against the debtors, who continued to reside on the 

property without paying rent.

The court in Pulcini began its analysis by noting that “[u]nder Pennsylvania 

law, the purchaser of real property at a sheriff’s sale acquires a vested equitable 

interest in the property ‘at the fall of the auctioneer’s hammer.’”85 Once the sheriff 

accepts the high bid, “the purchaser acquires a right to a deed upon compliance with 

the terms of the sale and assumes an obligation to comply with the terms.”86 At that 

point the purchaser had an “inchoate title” in the real property – an equitable interest 

 

84 261 B.R. 836 (Bankr. W.D. Pa. 2001).

85 Id., 261 B.R. at 840 (citing Butler v. Lomas and Nettleton Co., 862 F.2d 1015, 1019 (3d Cir.1988); Pa.

Co. for Insurances on Lives & Granting Annuities v. Broad St. Hosp. 354 Pa. 123, 128, 47 A.2d 281, 

283 (1946)).

86 Id., 261 B.R.at 841 (citing Pa. Co. for Insurances, 354 Pa. at 127, 47 A.2d at 282).

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that would become a “complete title” upon complying with the terms of the sale and 

issuance of the sheriff’s deed.87 When the deed is later acknowledged and delivered, 

it merely provides “evidence of the purchaser’s title,” and “relates back to and takes 

effect as of the sale date.”88 Applying those legal concepts to the facts of Pulcini, the 

court held that Chase had legal title to the real property as of the conclusion of the 

auction (and before the second bankruptcy case was filed), because it had fully 

complied with all the terms of the sheriff’s sale as of that time.89 The court then 

concluded that the debtors “had neither an equitable interest nor legal title to the 

property as of the commencement of their bankruptcy case and that it consequently 

was not included in their bankruptcy estate by virtue of § 541(a)(1) of the Bankruptcy 

Code.”90

Having determined the property was not property of the bankruptcy estate, 

the Pulcini court then ruled that the postpetition acknowledgement and delivery of 

the sheriff’s deed was not a violation of the automatic stay.91 Rather, these “were at 

most ministerial acts,”92 which “arose out of laws and/or judicial decrees with such 

‘crystalline clarity’ that nothing was left to the sheriff’s discretion or judgment.”93

Because Chase “had fully complied with the terms of sale at which it had purchased

 

87 Id. (citing Pa. Co. for Insurances, 354 Pa. at 132, 47 A.2d at 285).

88 Id.

89 Id.

90 Id.

91 Id.

92 Id.; see also Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 973–74 (1st Cir. 1997) (“A 

ministerial act is one that is essentially clerical in nature. Thus, when an official’s duty is delineated 

by, say, a law or a judicial decree with such crystalline clarity that nothing is left to the exercise of the 

official’s discretion or judgment, the resultant act is ministerial.”). 93 Id. (citing Soares, 107 F.3d at 974).

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the property, the sheriff had no discretion and no judgment to exercise before

acknowledging and delivering the deed to” Chase.94 The court then concluded that

“[m]inisterial acts, even if undertaken postpetition within the context of a judicial or

other court proceeding do not violate the automatic stay.”95 But even if the automatic 

stay did apply, the court held that cause existed under Bankruptcy Code section 

362(d) to lift the stay to permit the purchaser to obtain legal title to the real 

property.96

b. In re Rodgers.

Another similar case is In re Rodgers,97 a case under New York law, where a 

county taxing authority sold the debtor’s real property at a prepetition tax foreclosure 

sale. Under the terms of the sale, the buyer had to place a ten percent deposit and 

pay the balance a month later and, upon payment, he would receive a deed. The 

debtor then filed a chapter 13 petition before the deed was issued. But because the 

county taxing authority concluded that the debtor’s right to redeem the property had 

expired under New York law, the county accepted the remaining balance due from 

the buyer, and issued the deed postpetition. The debtor sought to hold the county in 

contempt for violating the automatic stay and to set aside the transfer of the property

to the buyer. The bankruptcy court denied the debtor’s motion. On appeal, the district 

 

94 Id.

95 Id. (citing McCarthy, Johnson & Miller v. North Bay Plumbing, Inc. (In re Pettit), 217 F.3d 1072, 

1080 (9th Cir. 2000); Soares, 107 F.3d at 973–74; Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 

527 (2d Cir. 1994)).

96 Id. at 841–42 (citing Bundy v. Donovan (In re Donovan), 183 B.R. 700, 702 (Bankr. W.D. Pa. 1995); 

In re Golden, 190 B.R. 52, 58 (Bankr. W.D. Pa. 1995)). 97 333 F.3d 64 (2d Cir. 2003).

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court affirmed that denial. The debtor appealed again, and the Second Circuit framed 

the issue as “whether, after the sale at public auction, but before completion of 

payment and delivery of the deed, [the debtor] possessed ‘legal or equitable interests’

in the property, so that it became part of the bankruptcy estate.”98

In affirming once again, the Second Circuit noted that under New York law “a 

tax foreclosure sale occurs when the property is ‘struck down’ at auction, rather than 

when the deed is conveyed to the purchaser.”99 The court noted that the sale 

“extinguishes the debtor’s interests in the property, unless a right to redeem

exists.”100 But under New York law, the debtor’s right to redeem expired at the 

conclusion of the auction.101 Because the ability to redeem had therefore been lost 

before the debtor filed her bankruptcy petition, the Second Circuit quoted the 

bankruptcy court below and held that “the foreclosed property sold at a public sale is 

no longer property of the estate for purposes of Section 541.”102

The debtor had argued that her possession of title as of the petition date was 

sufficient to find the property to be property of the estate, but the Second Circuit 

rejected this argument. The “critical inquiry” – according to the Second Circuit – was 

whether the debtor “had, under state law, any legal or equitable ownership interest 

that survived the auction.”103 The Second Circuit concluded that “the estate’s legal 

 

98 Id. at 66.

99 Id.

100 Id.

101 Id.

102 Id. at 68 (quoting Jan. 10, 2002, Order (No. 01–24220) at 15).

103 Id.

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and equitable interests in property rise no higher than those of the debtor,” and that 

her estate included only “property to which the debtor would have a right if the debtor 

were solvent.”104 Because under New York law she had no legal or equitable interest 

in the property after the conclusion of the auction, she did not have any legal or 

equitable ownership in the property as of the petition date.105

c. In re Foskey.

In re Foskey106 is yet another case with similar facts, this time under District 

of Columbia law. In Foskey, the District of Columbia sold a debtor’s property at a 

prepetition tax sale, and the purchaser then obtained a default judgment foreclosing 

the debtor’s right of redemption. About two months later, the debtor filed a chapter 

13 petition. After the petition was filed, the purchaser paid the taxes owed on the 

property and sought and obtained a deed in accordance with D.C. law. The purchaser 

then recorded the deed.

The debtor contended that the purchaser’s actions violated the automatic stay 

and filed a motion seeking authority to sell this property free and clear of any liens. 

The purchaser responded by filing its own motion for annulment of the automatic 

stay or a declaration that the stay did not apply to its payment of the taxes, issuance 

of the deed, or recording of the deed. The bankruptcy court determined that whether 

the automatic stay was violated depended on what interest, if any, the estate had in 

 

104 Id. at 68–69 (citing First Fidelity Bank v. McAteer, 985 F.2d 114, 117 (3d Cir. 1993) (citing In re La. 

World Exposition, Inc., 832 F.2d 1391, 1401 (5th Cir.1987))).

105 Id. at 69.

106 417 B.R. 836 (Bankr. D.D.C. 2009), aff’d sub nom. Foskey v. Plus Properties, LLC, 437 B.R. 1 

(D.D.C. 2010).

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the property as of the petition date, and whether the postpetition acts were acts to 

collect a prepetition debt.107

Under D.C. law the purchaser did not immediately acquire title after the 

auction, and the debtor had a six-month right of redemption, during which he 

retained ownership and use of the property. But after expiration of that six-month 

period, the purchaser could foreclose the right of redemption, which was what the 

purchaser did in Foskey. Even that step, though, did not vest legal title in the 

purchaser under D.C. law. To acquire legal title, the purchaser had to pay the taxes, 

and then the mayor had to execute and deliver a deed to the purchaser.108 Thus, under 

D.C. law the debtor still held legal title (and the right to use of the property) until the 

deed was delivered to the purchaser. 

But, that legal title was “subject to divestment upon payment of the purchase 

price and issuance of a deed.”109 Importantly, because the bankruptcy estate “cannot 

possess greater rights or interest in the property than those held by the debtor upon 

filing, the bankruptcy estate possesses only that limited bundle of post-sale rights.”110

Having lost the right of redemption prepetition, this limited bundle of post-sale rights 

did not include the ability to prevent the purchaser from acquiring legal title. 

Accordingly, the purchaser did not violate the automatic stay by exercising its right 

 

107 Id. at 838.

108 Id. at 839.

109 Id.

110 Id. at 841 (citing In re Alpine PCS, Inc., No. 08–00543, 2008 WL 5076983, *4 (Bankr. D.D.C. Oct.10, 

2008) (“A debtor’s property rights do not expand upon the commencement of a case.”); Moody v. Amoco 

Oil Co., 734 F.2d 1200, 1213 (7th Cir. 1984) (“[W]hatever rights a debtor has in property at the 

commencement of the case continue in bankruptcy—no more, no less.”)).

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to pay the taxes, and the District of Columbia did not violate the automatic stay by 

fulfilling its “ministerial” duty to issue the deed.111

2. Cases Under the Bankruptcy Act.

Although predating the modern Bankruptcy Code, a 1942 Supreme Court 

decision and a 1935 Fifth Circuit112 decision – both under the Bankruptcy Act of 1898

(the “Bankruptcy Act”) – also offer helpful guidance. In State Bank of Hardinsburg v. 

Brown,113 the debtor petitioned for relief under the Bankruptcy Act after his property 

was sold at a foreclosure sale, but before the sheriff executed and delivered a deed to 

the purchaser. Because the debtor’s right of redemption had expired before he 

petitioned for relief, the Supreme Court held that the property was not within the 

jurisdiction of the bankruptcy court114 (the equivalent of not being property of the 

estate). The Supreme Court also noted that under Indiana law, the sheriff’s delivery 

of a deed to the purchaser was “a ministerial act which he can be compelled to 

perform.”115

In Glenn v. Hollums,116 a decision that actually involved two cases, both 

debtors petitioned for relief under the Bankruptcy Act after foreclosure sales but 

before issuance of sheriff’s deeds (although in one case the sheriff issued a deed the 

day after the debtor petitioned for relief). Applying Texas law, the Fifth Circuit held 

 

111 Id. 112 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the United States 

Court of Appeals for the Eleventh Circuit adopted as binding precedent all decisions of the former 

Fifth Circuit handed down before October 1, 1981).

113 317 U.S. 135 (1942). 114 Id. at 141–142.

115 Id. at 141.

116 80 F.2d 555 (5th Cir. 1935).

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that a valid judgment, issuance of an execution thereon, a sale thereunder, 

acceptance of a bid by the sheriff, payment of the costs, and payment of the purchase 

price in either cash or by credit bid at the execution sale, vested “equitable and 

superior” title in the purchasers.117 And, importantly, the court held that “[a] deed 

from the sheriff is a ministerial act not essential to the investiture of title.”118

E. Application of Bankruptcy Law.

Relying primarily on Jaar,119 Ms. Parker argues that under “settled law in 

Florida,” filing a bankruptcy petition before a certificate of sale is filed establishes 

that the Real Property is property of the debtor’s bankruptcy estate and subject to 

the automatic stay. Ms. Parker is correct that with respect to a judicial sale – where 

there is a statutory right of redemption before a certificate of sale is filed120 – the 

right of redemption is property of a debtor’s bankruptcy estate. She is also correct 

that courts in Florida (both federal and state) follow Jaar’s holding “that a debtor 

could cure a default in a home mortgage and reinstate that mortgage through a 

chapter 13 plan until the clerk of the state court files a certificate of sale.”121 But, she 

is incorrect that Jaar applies here. Jaar is based upon the statutory right of 

redemption set forth in Florida Statute § 45.0315. As discussed above, however, the 

 

117 80 F.2d at 556.

118 Id.

119 186 B.R. at 154.

120 Fla. Stat. § 45.0315. 121 In re Rodriguez, No. 16-14608-BKC-LMI, 2016 WL 8504994, at *2 (Bankr. S.D. Fla. July 12, 2016) 

(citing Iskandar v. Carrera, 550 B.R. 589, 590 (S.D. Fla. 2015); In re Fothergill, 293 B.R. 263, 264 

(Bankr. S.D. Fla. 2003); Shlishley the Best, Inc. v. CitiFinancial Equity Services, Inc. 14 So.3d 1271, 

1275 (Fla. 2d DCA 2009)).

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judicial sale procedures that provide for a right of redemption do not apply to 

execution sales like the sheriff’s sale of the Real Property here.

Thus, based on the analyses in Pulcini,122 Rodgers,123 and Foskey124 (as well as

State Bank125 and Glenn126), the Court concludes that the Real Property is not 

property of Ms. Parker’s bankruptcy estate under 11 U.S.C. § 541. Under Florida law, 

Ms. Parker had no legal or equitable interest in the Real Property as of her Petition 

Date, even though the Sheriff’s Deed had not yet been physically delivered to 

Patrick’s Custom Painting. Moreover, because Florida Statute § 56.25 required the 

sheriff to undertake the purely ministerial act of delivering the Sheriff’s Deed (as to 

which he had no legal right to “change his mind”), Patrick’s Custom Painting had a

legal entitlement to issuance of the Sheriff’s Deed as of the Petition Date. As such, 

delivery of the Sheriff’s Deed two days after the Petition Date did not violate the 

automatic stay.127 Accordingly, with the execution sale having been completed 

prepetition and FARC having collected in full on its Default Final Judgment, neither 

the sheriff in discharging his statutory duties, nor Patrick’s Custom Painting in 

accepting the deed to which it was legally entitled, nor any action or inaction by 

judgment creditor FARC, in any way violated the automatic stay.

 

122 261 B.R. 836. 123 333 F.3d 64. 124 417 B.R. 836. 125 317 U.S. 135. 126 80 F.2d 555. 127 See Rodgers, 333 F.3d at 68-69; Foskey, 417 B.R. at 843; Pulcini, 261 B.R. at 841; see also State 

Bank, 317 U.S. at 141-42; Glenn, 80 F.2d at 556; cf. Frances, 2012 WL 3887516, at *23. But even if 

delivery of the sheriff’s deed did violate the automatic stay, retroactive annulment of the stay would 

be warranted here to approve issuance of the deed. Pulcini, 261 B.R. at 842.

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F. Challenge to the Execution Sale.

Finally, the Court notes that in each of her three briefs, Ms. Parker raised an 

issue as to service of the Second Sale Notice, contending it was not proper under 

Florida Statute § 56.21. But in each brief, she also clearly stated that it was “not an 

issue to be decided by this court.”128 Having three times raised this issue, and then 

three times stated that the Court need not decide it, Ms. Parker clearly waived this 

argument. Notwithstanding these waivers, at the end of her reply brief, Ms. Parker

then actually proceeded – through three pages of argument – to attack the validity of 

the sale for allegedly violating the notice provisions of Florida Statute § 56.21. But as 

an issue substantively raised for the first time in a reply brief (after having been 

thrice waived), the Court will not entertain this argument.129

IV. Conclusion.

Because Sheriff Tony’s obligation to deliver the Sheriff’s Deed to Patrick’s 

Custom Painting was a ministerial act mandated by statute, over which the sheriff 

had no discretion, the Court holds that the Sheriff’s Deed had been constructively 

delivered to Patrick’s Custom Painting before Ms. Parker filed her bankruptcy 

petition. Ms. Parker’s bankruptcy estate therefore had no legal or equitable interest 

in the Real Property as of the Petition Date, and the Real Property is therefore not 

property of her bankruptcy estate under 11 U.S.C. § 541. 

 

128 ECF No. 15 at 2, n.2; ECF No. 32 at 2, n.2; ECF No. 42 at 2, n.2.

129 See Novoferreiro v. Israel, No. 14-CIV-62674, 2015 WL 2152682, at *5 (S.D. Fla. May 6, 2015) 

(collecting cases). The Court does note, however, that if there was a basis to attack the sale, only a 

trustee – and not a chapter 13 debtor – could bring an action to avoid a transfer under Chapter 5 of 

the Bankruptcy Code. See 11 U.S.C. §§ 544–553, 1303; see also In re Richardson, 311 B.R. 302 (Bankr. 

S.D. Fla. 2004), amended (June 21, 2004).

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Patrick’s Custom Painting, on the other hand, had a legal entitlement to 

issuance of the Sheriff’s Deed as of the Petition Date. By delivering the deed – a 

statutory, ministerial act over which the sheriff had no discretion – neither Sheriff 

Tony nor Patrick’s Custom Painting nor FARC violated the automatic stay of 11 

U.S.C. § 362(a). Delivery of the Sheriff’s Deed was not an act to exercise control over 

property of the estate, because the estate had no legal or equitable interest in the 

Real Property. Likewise, the sheriff’s issuance of the deed was not an act to collect a 

prepetition debt or to enforce a prepetition lien. All acts by FARC to collect its 

prepetition debt were completed upon conclusion of the execution sale and Patrick’s 

Custom Painting’s payment of the purchase price and related costs. And, having 

constructively received the deed at the conclusion of the execution sale, and having 

properly received the actual, physical Sheriff’s Deed without running afoul of the 

automatic stay, Patrick’s Custom Painting has complete legal and equitable title to 

the Real Property.

Accordingly, for the reasons discussed above, it is ORDERED that:

1. The Motion is DENIED.

2. The Real Property located at 2861 SW 88th Avenue, Miramar, Florida 

33325 is not property of the bankruptcy estate of Debtor Karlene S. Parker.

3. Neither FARC, Patrick’s Custom Painting, nor Broward County Sheriff 

Gregory Tony, violated the automatic stay with respect to the issuance of the Sheriff’s 

Deed to Patrick’s Custom Painting on January 27, 2021.

# # #

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Copies furnished to:

All interested parties by the Clerk of Court 

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