Florida Appeals Court Reverses Another Lower Court Screw-Up; Calls Denial Of Lender's Request To Cancel F'closure Sale "A Gross Abuse Of Discretion"

A recent ruling from Florida's 5th District Court of Appeal brings continued attention to a foreclosure case emanating from Volusia County involving rubber-stamped denials of motions to cancel foreclosure sales filed by plaintiff/lenders, allowing foreclosure sales to take place, and then refusing lenders' requests to vacate the sales.

A May 26, 2010 post(1) addressed three cases from the same judge which were kicked back to him by the appeals court which, due to a procedural technicality, lacked jurisdiction to hear the appeal until the lower court complied with the court's direction.

The story now continues with respect to one of the cases (bold text is my emphasis, not in the original text):

• When Wells Fargo initially appealed the denial of these motions, we were compelled to relinquish jurisdiction to the trial court because the trial court's action did not constitute "rendition" of a final order so as to permit appellate review. Wells Fargo Bank, N.A. v. Lupica, 17 So. 3d 864 (Fla. 5th DCA 2009). We further directed the trial court to provide the basis for its denials of Wells Fargo's motion to cancel sale and subsequent motion to vacate sale. Id. at 866.

• The trial court then entered a final order denying the motions. The purported basis for the denial of Wells Fargo's two unopposed motions was the failure to attach a stipulation and/or a copy of the loan modification or forbearance agreement signed by all parties. The trial judge further suggested that the parties should have discussed the modification of the loan prior to entry of the final judgment "which could have avoided unnecessary consumption of the time of two courts."

• Foreclosures are equitable proceedings under Florida law and settlements between litigants are favored. The trial court's denial of Wells Fargo's unopposed motions flies in the face of these principles. Furthermore, it was not necessary for Wells Fargo to have attached a stipulation and/or copy of a signed loan modification or forbearance agreement.(2) There was no basis for the trial court to reject Wells Fargo's counsel's representation, as an officer of the court, that an agreement had been reached between the parties — particularly where the Lupicas never disputed such representation. The trial court's actions constituted a gross abuse of discretion. See, e.g., Opportunity Funding I, LLC v. Otetchestvennyi, 909 So. 2d 361 (Fla. 4th DCA 2005).
  
  REVERSED and REMANDED.

For the entire ruling, see Wells Fargo Bank, N.A. v. Lupica, Case No. 5D09-2902 (Fla. 5th DCA, June 4, 2010).

(1) See Chronic, Rubber-Stamping Florida Judge Once Again Draws Appellate Court Attention For Denying Plaintiff/Lenders' Motions To Cancel Foreclosure Sales.

(2) The appellate court noted, in a footnote, that subsequent to the trial court's entry of its final order, the Florida Supreme Court approved a form motion for the cancellation of a foreclosure sale and pointed out that the form motion does not reference the attachment of a stipulation or copy of a forbearance agreement.