COMMONWEALTH MORTGAGE CORPORATION OF AMERICA, L.P., F/K/A COMMONWEALTH MORTGAGE CORPORATION, APPELLANT,
v.
STEVEN H. FRANKHOUSE, UNMARRIED, APPELLEE
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In a mortgage foreclosure case involving a VA-guaranteed loan, the trial court denied the mortgagee's motion to postpone the judicial sale due to inability to timely obtain VA bidding instructions. The appellate court reversed, holding that the trial court abused its discretion by rigidly applying court policy without considering the particular circumstances that would result in substantial inequity to the non-negligent mortgagee.
The trial court abused its discretion. While the court's concerns about VA negligence and public notice were understandable, rigid application of court policy without flexibility to address the particular circumstances resulted in inequitable harm to the non-negligent mortgagee. The proper remedy was to schedule another judicial sale rather than deny the continuance.
[1] A trial court abuses its discretion by denying a motion to postpone a judicial sale when the denial results in a significant financial loss to a non-negligent party due t…
[2] Court policy regarding the rescheduling of judicial sales must be flexible enough to address specific circumstances and avoid inequities.
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Join FLexlaw to unlock all legal intelligence“court policy must be sufficiently flexible to meet the exigencies of particular circumstances and should bend to avoid inequities”
The court established that rigid adherence to court policy without considering particular circumstances is an abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceCommonwealth Mortgage Corporation held a mortgage on property securing a loan guaranteed by the Veterans Administration. The VA required the mortgagee…
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PER CURIAM.
This is an appeal from a post-judgment order in mortgage foreclosure proceedings. Payment of the indebtedness secured by the mortgage in question was guaranteed by the Veteran’s Administration (V.A.). In order to gain the benefit of the guarantee, the mortgagee, Commonwealth Mortgage Corporation, was required to obtain and strictly follow bidding instructions which were normally forwarded to the mortgagee by the V.A. upon being apprised of the date of the judicial sale. By reason of short notice the mortgagee was unable timely to obtain bidding instructions and therefore sought postponement of the sale. The motion seeking this continuance was denied. As a result, the mortgagee suffered a loss of approximately $30,000.00 when the V.A. refused to honor its guarantee because the bidding was not conducted pursuant to its specific instructions.
The issue is whether denial of the motion to postpone the judicial sale constitutes an abuse of discretion. We are advised that denial was predicated upon the fact that the V.A. constantly failed to submit bidding instructions timely, that it was unfair to the public to cancel a judicial sale without prior notice and that it was against court policy to reset judicial sales.
Reacting to these reasons in reverse order: most would agree that court policy must be sufficiently flexible to meet the exigencies of particular circumstances and should bend to avoid inequities; as regards the public interest, since the only bid received was one for $100.00 tendered by the mortgagee it would seem that the public did not have a very large stake in the mortgage sale in question; and, finally, while it might have been appropriate to sanction the V.A. for procrastination, the real life result is that the V.A. avoids a loss which therefore falls heavily upon the non-negligent mortgagee. Thus, while we sympathize with the trial court’s frustration, we feel that the lash fell on the wrong shoulders here and we accordingly reverse and remand with instructions that another judicial sale be scheduled.
REVERSED AND REMANDED.
HERSEY, C.J., and GUNTHER and POLEN, JJ., concur.
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A Mortg. Co. Formerly Am's. Mortg. Co. v. Bowman, 642 So. 2d 123 (Fla. 4th DCA 1994)…y is governed by the requirements and limitations of 38 U.S.C. sections 3701 et seq. (1993), which require bidding instructions be obtained from the V.A. before a foreclosure sale can occur. See Commonwealth Mortg. Corp. of Amen, L.P. v. Frankhouse, 551 So. 2d 599 (Fla. 4th DCA 1989). In order to realize the benefit of the guarantee, the mortgagee was required to acquire and adhere to bidding instructions ordinarily forwarded to the mortgagee by the V.A. Because the instructions from the V.A. were not timely…
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Jade Winds Ass'n, Inc. v. Citibank, N.A., 63 So. 3d 819 (Fla. 3d DCA 2011)…Fla. 5th DCA 2010) (finding that, pursuant to Florida Rule of Appellate Procedure 9.130(a)(4), appellate court has jurisdiction to review non-final, post-judgment order setting foreclosure sale); Commonwealth Mortg. Corp. of Am., L.P. v. Frankhouse, 551 So. 2d 599 (Fla. 4th DCA 1989) (reversing post-judgment order postponing foreclosure sale finding an abuse of discretion, and remanding with instructions to schedule judicial sale); see also Drago v. Drago, 895 So. 2d 529, 529 (Fla. 4th DCA 2005) (re-designati…
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