Florida 5th DCA – More Heat for Rubber Stamping Judge for Denying Motions to Cancel Foreclosure Sales Over and Over and Over and Over
Funny how the banks cant even get their sales canceled…
Ex-Volusia County Circuit Court Judge John V. Doyle is drawing renewed heat for issuing rubber-stamped denials over and over and over and over…
Although this appeal is brought by the Plaintiff / Lender, it speaks to the issues of the procedure followed by the rubber-stamping trial judges that leaves doubt that motions are even given any merits consideration.
LaSalle Bank National Association, as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-3 ["LaSalle"] appeals the trial court’s non-final order denying its objection to sale and emergency motion to vacate summary final judgment and to vacate foreclosure sale and to return funds to the third party purchaser.
On December 4, 2008, LaSalle filed a complaint to foreclose a mortgage on real property owned by Daisy E. Alicea a/k/a Daisy Alicea ["Alicea"] that she had purchased in 2007 for $225,000. Thereafter, in March 2009, LaSalle filed a motion for summary final judgment and notice of a hearing to be held on April 14, 2009. On that date, the trial court entered its summary final judgment of foreclosure, finding that $201,019.00 was due and owing to LaSalle and scheduling the foreclosure sale for May 14, 2009.
On May 12, 2009, LaSalle filed a motion to cancel/vacate foreclosure sale, stating: “Since the date of the entry of the Final Judgment of Foreclosure and the notice of sale, the borrowers have entered into a Non-FNMA Home Affordable Modification Program in an effort to retain their home and avoid the sale of their home.” The trial court denied the motion without a hearing, using a “DENIED” stamp with a handwritten date of May 13, 2009. LaSalle then filed a renewed motion to cancel/vacate foreclosure sale, providing: “Since the date of the entry of the Final Judgment of Foreclosure and the notice of sale, the borrowers have entered into arrangements with the Plaintiff for a short sale of the property, which sale is scheduled to take place on May 20, 2009.” A docket entry indicates that the trial court denied the renewed motion.
On May 14, 2009, the foreclosure sale took place as scheduled, at which “Equitable Gain Inc.” purchased the property for a bid of $8,000.00. “Equitable Gain Inc.” provided proof of publication on May 15, 2009.
LaSalle filed an objection to the sale and an emergency motion to vacate summary final judgment and to vacate foreclosure sale and to return funds to the third party purchaser. It asserted that the judicial sale of the property should be set aside because the sale price was grossly inadequate. LaSalle stated that Alicea “purchased the property for the amount of $225,000.00 on 03/28/2007″ and that the current tax appraisal value was $160,644.00. LaSalle noted other irregularities: that the affidavits filed in support of its motion for summary final judgment were not in compliance with the time requirements of Florida Rule of Civil Procedure 1.510(c), and the sale should not have taken place because proof of publication of the notice of sale had not been filed with the Clerk prior to the sale date. The trial court again denied LaSalle’s objection and motion without a hearing, using the “DENIED” stamp with a handwritten date of May 20, 2009.
On May 27, 2009, the Clerk filed a certificate of title, which showed that the property was sold to Third Party Purchasers as follows: “HILL & BECKMAN INC 2/3, AND TAMCO CORP OF VOLUSIA COUNTY 1/3 . . . .”
LaSalle filed a motion for rehearing or in the alternative motion to vacate certificates of sale and title.
The trial court denied the motion; the motion bears a “DENIED” stamp, with the handwritten date of June 3, 2009, and a reference to the previous order dated May 20, 2009.
This case is virtually identical in all material respects to two other cases recently before this Court. 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). The trial judge was the same in all three of these cases and the procedure he consistently followed is the problem.
Full opinion below…