Friday, December 10, 2010

Trial Court Has Discretion To Schedule Foreclosure Sale

In LR5A-JV v. Little House (5D09-3857), the Fifth District affirmed the trial courts order scheduling a foreclosure sale.  A prior decision in the same case can be found at the following cite: LR5A-JV, LP v. Little House, LLC, 998 So. 2d 1173 (Fla. 5th DCA 2008).  In 2008, the Fifth District concluded its opinion by stating "Accordingly, we AFFIRM the final judgment of foreclosure and order of clarification and REMAND with instructions to proceed to foreclose the superior mortgage of LR5A-JV."  

After the case was remanded, the condominium association filed a motion in the trial court requesting that the trial court schedule the foreclosure sale.  Over the objection of the judgment holder, the trial court granted the motion and scheduled the sale.  The judgment holder argued that "the Association, as a junior lien holder, cannot demand that a foreclosure sale date be set, and the trial court erred as a matter of law in setting the date for the judicial sale. The Association counters that section 45.031(1), gives the trial court the ultimate authority to order a judicial sale."  The court "agree[d] with the Association."

The court stated that the statutes "clearly required the trial court to set a judicial sale date between 20 to 35 days after entry of the final judgment or order directing a judicial sale, but allows an extension with the plaintiff’s consent."  Further, "Florida decisional law reflects that the matter of fixing the time for a judicial sale is set by statute, but that the trial court has reasonable discretion within the statutory framework to set or reset the date for such sale."

The court also noted the Florida Supreme Court's 2010 amendment to the Florida Rules of Civil Procedure relating to motions to cancel foreclosure sales.  The court stated:
the Florida Supreme Court adopted amendments to the rules of civil procedure relating to mortgage foreclosures. In re Amends. to the Fla. R. of Civ. P., 35 Fla. L. Weekly S97 (Fla. Feb. 1, 2010). Included in these amendments is Form 1.996(b), entitled “Motion to Cancel and Reschedule Foreclosure Sale,” which sets out a list of reasons for cancellation of a scheduled judicial sale, and provides, “If this Court cancels the foreclosure sale, Plaintiff moves that it be rescheduled.” In other words, the supreme court, in adopting the form, apparently did not contemplate that a judicial sale would be left in limbo.
The Florida Supreme Court issued a new opinion on the a different subsection of the rule just yesterday, December 9, 2010, which was discussed HERE.

Ultimately, the court held that the trial court, not the judgment holder, had the ultimate discretion to schedule the sale. I believe the fact that the case was remanded in 2008 with instructions to conduct a sale also played a factor.  The judgment holder was attempting to never schedule the foreclosure sale which seems to present a different circumstance from the cases discussing a judgment holders attempts to reschedule a foreclosure sale.  Those cases hold that a motion to postpone a foreclosure sale should be granted absent “extraordinary circumstance.”  A Mortg. Co. v. Bowman, 642 So. 2d 123, 124 (Fla. 4th DCA 1994); see also Chemical Mortg. Co. v. Dickson, 651 So. 2d 1275, 1276 (Fla. 4th DCA 1995); LaSalle Bank Nat. Ass’n. v. Alicea,  35 So. 3d 986, 989 (Fla. 5th DCA 2010); U.S. Bank Nat'l Ass'n v. Bjeljac, 17 So. 3d 862 (Fla. 5th DCA 2009); and Wells Fargo Bank, N.A. v. Lupica, 17 So. 3d 864 (Fla. 5th DCA 2009).  


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