A MORTGAGE COMPANY FORMERLY AMERICA'S MORTGAGE COMPANY, APPELLANT,
v.
RANDY L. BOWMAN; LORI A. BOWMAN AND UNKNOWN SPOUSE, IF MARRIED; UNKNOWN TENANT(S), APPELLEES
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A Mortgage Company appealed a trial court's denial of its motion to reschedule a foreclosure sale of a VA-guaranteed mortgage. The appellate court reversed, holding that a mortgagee has a right to reschedule a foreclosure sale absent extraordinary circumstances, and the trial court abused its discretion by denying the motion without explanation.
A mortgagee has the right to reschedule a foreclosure sale on property where it has successfully foreclosed its mortgage, absent extraordinary circumstances. The trial court abused its discretion by denying the mortgagee's motions to reschedule without providing any explanation for its decision.
[1] A trial court abuses its discretion by denying a motion to reschedule a foreclosure sale absent extraordinary circumstances.
[2] A mortgagee has the right to proceed to a foreclosure sale on property it has successfully foreclosed, absent extraordinary circumstances.
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Join FLexlaw to unlock all legal intelligence“With respect to the cancellation and rescheduling of foreclosure sales, absent extraordinary circumstances, a mortgagee has the right to proceed to sale on any property on which it has successfully foreclosed its mortgage.”
Establishes the legal standard that mortgagees have a right to reschedule foreclosure sales absent extraordinary circumstances.
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Join FLexlaw to unlock all legal intelligenceA summary judgment of foreclosure was entered in favor of the mortgagee. A foreclosure sale was scheduled for July 8, 1993. Because the debt was guara…
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PER CURIAM.
This is an appeal from, a post-judgment order in a mortgage foreclosure proceeding denying the motion of appellant, A Mortgage Company, formerly America’s Mortgage Company (mortgagee), to reschedule a foreclosure sale. We reverse.
A summary judgment of foreclosure was entered in favor of mortgagee. Pursuant to said judgment, a clerk’s foreclosure sale was scheduled for July 8, 1993.
Payment of the indebtedness secured by the mortgage in question is guaranteed by the Department of Veteran’s Administration (V.A.). Therefore, sale of the property 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 obtained, the sale did not take place as scheduled. The next day, the mortgagee submitted an ex parte motion and proposed order to reset the sale explaining that the V.A. had advised the mortgagee that it could not yet issue bidding instructions and needed an additional 45 days. The trial court, without explanation or elaboration, denied the mortgagee’s motion.
One week after the denial, the mortgagee filed a second motion to reschedule the foreclosure sale, again notifying the trial court that the V.A. had advised the mortgagee that it could not issue bidding instructions and needed more time. Without explanation or elaboration, the trial court again denied the motion.
With respect to the cancellation and rescheduling of foreclosure sales, absent extraordinary circumstances, a mortgagee has the right to proceed to sale on any property on which it has successfully foreclosed its mortgage. Administration of Veteran’s Affairs v. Bertsche, 574 So. 2d 320. (Fla. 4th DCA 1991); First Nationwide Savs. v. Thomas, 513 So. 2d 804 (Fla. 4th DCA 1987). Without explanation in the order from the trial court, we are unable to determine upon what extraordinary circumstances denial was predicated. By refusing to enter an order rescheduling sale, the trial court abused its discretion. Bertsche; Thomas.
We accordingly reverse and remand vrith instructions to reschedule the clerk’s foreclosure sale. See Source One Mortg. Servs. Corp. v. Stewart, 634 So. 2d 828 (Fla. 4th DCA 1994); Bertsche; Thomas.
REVERSED AND REMANDED.
DELL, C.J., and STONE and PARIENTE, JJ., concur.
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Royal Palm Corporate Ctr. Ass'n, Ltd. v. Pugliese, III, 89 So. 3d 923 (Fla. 4th DCA 2012)…9 So. 2d 1160 (Fla. 1st DCA 2003) (citing Thomas); Bankers Trust Co. of Cal., N.A. v. Weidner, 688 So. 2d 453 (Fla. 5th DCA 1997); Chem. Mortg. Co. v. Dickson, 651 So. 2d 1275 (Fla. 4th DCA 1995) (citing, inter alia, Thomas); A Mortg. Co. v. Bowman, 642 So. 2d 123 (Fla. 4th DCA 1994) (citing, inter alia, Thomas ); Admin, of Veteran’s Affairs v. Bertsche, 574 So. 2d 320 (Fla. 4th DCA 1991) (citing, inter alia, Thomas). Only after the setting of the sale according to the statutory procedure would the trial cour…
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Bankers Tr. Co. v. Edwards, 849 So. 2d 1160 (Fla. 1st DCA 2003)…164] Edwards.3 The existence of extraordinary circumstances has been recognized as a condition that may prevent the rescheduling of a foreclosure sale. See Chem. Mortgage Co. v. Dickson, 651 So. 2d 1275 (Fla. 4th DCA 1995); A Mortgage Co. v. Bowman, 642 So. 2d 123 (Fla. 4th DCA 1994). The majority’s reliance on the interpretations of counsel during oral argument as an aid to its own construction of the lower court’s order is, to say the least, a novel approach to judicial decision-making, as is its reliance…
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Chem. Mortg. Co. v. Dickson, 651 So. 2d 1275 (Fla. 4th DCA 1995)…ber 8, 1993. The trial court, after conducting a hearing, ultimately denied Chemical’s motion. The mortgage in question, being a V.A. guaranteed loan, was governed by the requirements and limitations outlined in federal law. A Mortg. Co. v. Bowman, 642 So. 2d 123 (Fla. 4th DCA 1994); Commonwealth Mortg. Corp. of Amer., L.P. v. Frankhouse, 551 So. 2d 599 (Fla. 4th DCA 1989). Thus, pursuant to the rules and regulations contained at 38 C.F.R. section 36.4320(b), in order to realize the benefit of the V,A.’s gua…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- First Nationwide Sav. v. Thomas, 513 So. 2d 804 (Fla. 4th DCA 1987)
- Commonwealth Mortg. Corp. OF Am., L.P. v. Frankhouse, 551 So. 2d 599 (Fla. 4th DCA 1989)
- Lucius Bernard Smith v. State, 574 So. 2d 320 (Fla. 4th DCA 1991)
- Source ONE Mortg. Servs. Corp. v. The Honorable James R. Stewart, Jr., 634 So. 2d 828 (Fla. 4th DCA 1994)
- Pacheco v. Pappalardo Contractors, Inc., 634 So. 2d 828 (Fla. 4th DCA 1994)