Monday, October 3, 2011

Court's Failure To Conduct Evidentiary Hearing On Motion To Vacate Foreclosure Deed Leads To Another Appeals Panel Reversal Of Trial Judge Screw-Up

A Florida appeals court has once again issued a reversal of a lower court ruling that unfairly screwed over a homeowner in foreclosure.

The appeals court noted that the trial judge improperly failed to grant a verified motion to vacate the certificate of title (ie. the type of deed issued after a foreclosure sale in Florida):

  • because the Clerk of the Court issued the title to the winning bidder while the homeowners' filed objection to the foreclosure sale was still pending,(1)

  • where the foreclosing bankster had failed to offer any evidence opposing the motion, and

  • because the court did not conduct an evidentiary hearing on the homeowners' objections.

The appeals court further noted that even though the trial judge recognized such failure on the bankster's part to offer evidence to oppose the homeowners' motion, he denied the motion anyway.(2)

The guilty trial judge in this case, Broward County Circuit Court Judge Michael L. Gates.

For the ruling, see Regner v. Amtrust Bank, No. 4D11-1281 (Fla. App. 4th DCA, September 28, 2011.

(1) The homeowners' objection was based on claims that:

  • they did not receive notice of the sale;
  • the bank breached the parties' settlement agreement by wrongfully rejecting the defendants' final redemption payment; and
  • the bank's purchase price was inadequate.

(2) After hearing the homeowners' arguments asserting that the trial judge screwed up, the appeals court made these pithy observations (bold text is my emphasis, not in the original text):

  • We agree with the defendants' arguments and reverse.

    Compare § 45.031(5), Fla. Stat. (2010) ("If no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title . . . ."), with § 45.031(8), Fla. Stat. (2010) ("If timely objections to the bid are served, the objections shall be heard by the court."); see also Opportunity Funding I, LLC v. Otetchestvennyi, 909 So.2d 361, 362 (Fla. 4th DCA 2005) ("The Clerk of the Court lacks authority to issue a certificate of title . . . when an objection to a foreclosure sale is timely filed."). "For the court to `hear' objections, it must provide both notice and an opportunity for any interested party to address those objections." U.S. Bank Nat'l Ass'n v. Bjeljac, 43 So.3d 851, 853 (Fla. 5th DCA 2010) (citations omitted).

    Further, "`it is reversible error for a trial court to deny a party an evidentiary hearing to which [the party] is entitled.'" Avi-Isaac v. Wells Fargo Bank, N.A., 59 So.3d 174, 177 (Fla. 2d DCA 2011) (quoting Sperdute v. Household Realty Corp., 585 So.2d 1168, 1169 (Fla. 4th DCA 1991)).

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