Wednesday, February 17, 2010

Order Setting Aside Foreclosure Sale Based Upon "Victimhood" Reversed

In Phoenix Holding, LLC v. Martinez, et al (3D09-3365), reversed "an order denying its motion for a writ of possession and granting the mortgagors’motion to vacate the sale and the judgment upon which it was based."  The court noted that "The mortgagors had provided no true defense to the foreclosure but had merely pled their victimhood in various ways."  As explained below, victimhood is not a legal basis to set aside a mortgage sale. 
“It is established that a judicial sale may be set aside on the grounds of gross inadequacy of consideration, surprise, accident, mistake, or irregularity in the conduct of the sale.”  U-M Pub., Inc. v. Home News Pub. Co., 279 So. 2d 379, 381 (Fla. 3d DCA 1973) (citing Moran-Alleen Co. v. Brown, 123 So. 561 (Fla. 1929)). “However, even though a judicial sale will not be set aside due to ‘slight defects,’ or for ‘merely technical, formal, and unimportant irregularities,’ we must view the proceedings in their totality.” Id
For the first time on appeal, the mortgagors argue that because Rule 1.080(h)(2), Florida Rules of Civil Procedure, gives a mortgagor against whom a default judgment has been entered the right to be served with a copy of the judgment, and because the final judgment in this case was served to them at the wrong address, it was correctly reversed. However, Rule 1.080(h)(3) notes that subdivision (h) “is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action.”
The court then stated:
With no valid reason, the trial judge set aside the judgment and sale solely because he did not “think it [was] fair.” Unfortunately, neither the ground of fairness nor “the ‘ground’ of benevolence and compassion . . . constitute[s] a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.” Republic Fed. Bank, N.A. v. Doyle, 19 So. 3d 1053, 1054 (Fla. 3d DCA 2009).  Although the trial judge might believe otherwise, “[w]e cannot agree that courts of equity have any right or power under the law of Florida to issue such order it considers to be in the best interest of ‘social justice’ at the particular moment without regard to established law.” Flagler v. Flagler, 94 So. 2d 592, 594 (Fla. 1957).


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