Friday, September 3, 2010

Denial of Motion To Vacate Foreclosure Sale Reversed

In U.S. Bank v. Bjeljac (5D09-2809), the Fifth District held that the trial court did not error when refusing to cancel a foreclosure sale, however, reversed the trial court's denial of the appellant's motion to set aside the foreclosure sale.  A prior appeal in the same case was discussed HERE.  

With regard to the motion to cancel foreclosure sale, the court stated:
U.S. Bank’s motion to cancel and reset the foreclosure sale alleged only that it “requests that the foreclosure sale . . . be cancelled and reset.” The trial court denied the motion, finding that it set forth no basis on which the court could intelligently exercise its discretion. Florida Rule of Civil Procedure 1.100(b) requires that motions “state with particularity the grounds therefor . . . .” U.S. Bank’s motion failed to satisfy this basic requirement.
However, with regard to the motion to set aside the sale the Court stated:
U.S. Bank next contends that the trial court erred in failing to set aside the foreclosure sale and vacate the certificate of title because the bid price was inadequate and it mistakenly failed to send a representative to the sale....The third party purchasers concede that the price they paid for the foreclosed property was grossly inadequate. Consequently, we need only determine if the inadequacy resulted from some mistake, fraud or other irregularity in the sale.
***
In Florida, “even a unilateral mistake which results in a grossly inadequate price is legally sufficient to invoke the trial court’s discretion to consider setting the sale aside.”...The sufficiency of the “mistake” is shown, if “the owner became deprived of an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent him there for that purpose was not present.”
***
Section 45.031(8), Florida Statutes (2009), provides that objections based on the amount of the bid may be filed within ten days after the clerk files a certificate of sale, and “[i]f timely objections to the bid are served, the objections shall be heard by the court.” (Emphasis added). 
 Ultimately, the court reversed because of the following:
We believe the question of whether U.S. Bank’s failure to have a representative present at the sale was the result of a mistake is inherently a factual question that requires a hearing before the court.
The oral argument in this appeal can be viewed below:

Appellant's Argument

video

Appellee's Argument

video

 Rebuttal

video

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