KARIN ROHRET
v.
ANTHONY ZUCCO, N. A., ET AL
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court affirmed a foreclosure judgment but reversed an order denying a motion to vacate the sale. The court held that a foreclosure sale cannot occur while a timely motion for rehearing is pending, and a nunc pro tunc order cannot correct a sale that was prematurely held.
No, a foreclosure sale cannot be held while a timely motion for rehearing is pending. A nunc pro tunc order cannot be used to correct a sale that was fatally premature because the court had not ruled on the motion before the sale.
[1] A foreclosure sale conducted while a timely motion for rehearing of the foreclosure judgment is pending is void because the filing of such a motion suspends enforcement o…
[2] A nunc pro tunc order cannot retroactively validate a foreclosure sale that was conducted prematurely, as such an order may only correct the record of an order actually m…
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is well settled that a foreclosure sale cannot be held while a timely motion for rehearing is pending because enforcement of a final judgment is suspended by the filing of the rehearing motion.”
Establishes the legal principle that a sale cannot occur during a pending rehearing motion.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKarin Rohret appealed a foreclosure judgment and an order denying her objection to the sale and motion to vacate it. The foreclosure sale took place b…
The full statement of facts, procedural history, and disposition for this case are member content.
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NORTHCUTT, Judge. Karin Rohret appeals both a final judgment of foreclosure and an order overruling her objection to the sale conducted pursuant to the judgment and denying her motion to vacate it.
We affirm the foreclosure judgment without further comment, but we reverse the order on the objection and motion to vacate the sale. The foreclosure sale at issue here took place before the circuit court disposed of Rohret's timely and authorized motion for rehearing of the foreclosure judgment. "It is well settled that a foreclosure sale cannot be held while a timely motion for rehearing is pending because enforcement of a final judgment is suspended by the filing of the rehearing motion." Lowenstein v. U.S. Bank Nat'l Ass'n for Credit Suisse First Boston MBS Heat 2004-4, 253 So. 3d 86, 87 (Fla. 2d DCA 2018) (quoting 944 CWELT–2007 LLC v. Bank of Am., N.A., 194 So. 3d 470, 471 (Fla. 3d DCA 2016)).
Consequently, the sale in this case cannot stand.
Moreover, the circuit court's postsale entry of an order denying Rohret's motion for rehearing "nunc pro tunc" to a date preceding the sale did not rectify the defect. "A court may enter an order nunc pro tunc to correct the record of an order [a]ctually made, which was either entered incorrectly in the court records or not entered at all." In re Riha's Estate, 369 So. 2d 404, 404 (Fla. 2d DCA 1979) (citing DeBaun v. Michael, 333 So. 2d 106 (Fla. 2d DCA
1976)). Here, the record reflects no attempt to rule on the motion for rehearing before the sale occurred. And "when the court wholly omits an order or wishes to change it, the new order cannot be entered nunc pro tunc." Id.; see also Rodriguez v. Palm Beach Cnty. Div. of Animal Care & Control, 988 So. 2d 738 (Fla. 4th DCA 2008) (holding it was error to enter a nunc pro tunc order on a motion to transfer when the court had not ruled on the motion in the year it had been pending).
Consequently, adding the phrase "nunc pro tunc" to the order denying the motion for rehearing could not alter the fact that the sale was fatally premature.
Therefore, we affirm the final judgment of foreclosure, but we reverse the order overruling Rohret's objection to the foreclosure sale and denying her motion to vacate it. We remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded. MORRIS, C.J., and SILBERMAN, J., Concur. Opinion subject to revision prior to official publication.
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Citator
Authorities Cited
- De Baun v. Michael, 333 So. 2d 106 (Fla. 2d DCA 1976)
- In re the Est. of James Riha v. Harding, 369 So. 2d 404 (Fla. 2d DCA 1979)
- 944 Cwelt-2007 LLC v. Bank OF Am., N.A., 194 So. 3d 470 (Fla. 3d DCA 2016)
- Domingo Rodriguez, Jr. v. Palm Beach Cnty. Div. of Animal Care & Control, 988 So. 2d 738 (Fla. 4th DCA 2008)