JAMES P. KERRIGAN AND CARMEN L. KERRIGAN, HUSBAND AND WIFE, APPELLANTS,
v.
THOMAS G. MOSHER, APPELLEE
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Homeowners appealed the denial of their motion to set aside a foreclosure sale of their homestead where a mechanic's lien creditor purchased their $300,000-$360,000 home for $100 as the sole bidder, with the homeowners' attorney inadvertently failing to attend the sale. The court reversed, holding that where gross inadequacy of price results from mistake, the trial court has discretion to set aside a judicial sale even without irregularity in the sale process itself.
The trial court has discretion to set aside a judicial sale where gross inadequacy of price results from mistake, accident, surprise, fraud, misconduct, or irregularity, even without evidence of irregularity in the sale process. The court abused its discretion in refusing to set aside the sale where the Kerrigans were deprived of an opportunity to bid due to their attorney's inadvertent failure to attend.
[1] A trial court has discretion to set aside a judicial sale based on gross inadequacy of the sale price when that inadequacy results from mistake, accident, surprise, fraud…
[2] A gross inadequacy of price at a judicial sale, coupled with the owner's attorney's inadvertent absence from the sale, constitutes sufficient mistake to warrant setting a…
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Join FLexlaw to unlock all legal intelligence“where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.”
States the controlling legal standard permitting equitable relief from judicial sales despite inadequate price
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Join FLexlaw to unlock all legal intelligenceThe Kerrigans' home, valued at $300,000-$360,000 and encumbered by a mortgage of approximately $87,000, was subject to foreclosure of a mechanic's lie…
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PER CURIAM.
James P. Kerrigan and Carmen L. Kerri-gan appeal an order denying their motion which sought, among other relief, to set aside the judicial sale of their homestead in connection with the foreclosure of a mechanic’s lien held by appellee, Thomas G. Mosher, in the amount of $3,721.30. Mosher was the sole bidder at the foreclosure sale. The Ker-rigans believed that their attorney would protect their interests at the sale; however, because of inadvertence or mistake, the Ker-rigans’ attorney did not attend the sale or take any action to redeem the property or otherwise represent them. At the sale, Mosher purchased the Kerrigan’s home, which the record reflects had a fair market value of between $300,000 to $360,000, and was encumbered by a mortgage of approximately $87,000, for a bid of $100.
The Kerrigans argue that the trial court erred in ruling that it did not have the discretion to set aside the foreclosure sale without a showing of irregularity in the sale process. We agree and reverse.
As a general rule, inadequacy of price standing alone is not a ground for setting aside a judicial sale. Nevertheless,
where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.
Arlt v. Buchanan, 190 So. 2d 575, 577 (Fla.1966). Sufficient “mistake” is shown, where “the owner became deprived of an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent him there for that purpose was not present.” Van Delinder v. Albion Realty & Mortgage, Inc., 287 So. 2d 352, 353 (Fla. 3d DCA 1973).
The trial court below clearly possessed the discretion to set aside the judicial sale under these circumstances. We recognize that this is a close case because the Kerrigans themselves could have taken steps to protect their own interests. See, John Crescent, Inc. v. Schwartz, 382 So. 2d 383, 385 (Fla. 4th DCA), cert. denied, 389 So. 2d 1113 (Fla.1980). Nevertheless, because of both the gross inadequacy of the bid and the mistake by the Kerrigans’ attorney in failing to protect their interests with respect to the sale, we conclude that it was an abuse of discretion for the court to refuse to set aside the sale and to direct a resale.
REVERSED and REMANDED for proceedings consistent with this opinion.
JOANOS, BENTON and VAN NORTWICK, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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U.S. Bank, N.A. v. Vogel, 137 So. 3d 491 (Fla. 4th DCA 2014)…et aside a judicial sale is shown where the owner became deprived of an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent the owner there for that purpose was not present. Kerrigan v. Mosher, 679 So. 2d 874, 875 (Fla. 1st DCA 1996). Here, the purchaser is bound by his counsel’s concession that U.S. Bank was deprived of an opportunity to bid at the sale as a result of a mistake. See Holub v. Holub, 54 So. 3d 585, 587 (Fla. 1st DCA 2011) (a party is bou…
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Cicoria v. Gazi, 901 So. 2d 282 (Fla. 5th DCA 2005)…r.2d, Judicial Sales § 26 (2005). . See De Ardila v. Chase Manhattan Mortgage Co., 826 So. 2d 419 (Fla. 3d DCA 2002). . 8 Fla. Jur. 22, Judicial Sales § 26 (2005). . See Ingorvaia v. Horton, 816 So. 2d 1256 (Fla. 2d DCA 2002); Kerrigan v. Mosher, 679 So. 2d 874 (Fla. 1st DCA 1996); Bennett v. Ward, 667 So. 2d 378 (Fla. 1st DCA 1995); Bit-O-Sweden, Inc. v. Kittredge, 566 So. 2d [*288] 364 (Fla. 5th DCA 1990); C.J. Van Delinder v. Albion Realty & Mortgage, Inc., 287 So. 2d 352 (Fla. 3d DCA 1974); Subsaro v.…
Authorities Cited
- Leatha Fleeman Arlt v. Buchanan, 190 So. 2d 575 (Fla. 1966)
- John Crescent, Inc. v. Schwartz, 382 So. 2d 383 (Fla. 4th DCA 1980)
- Kingswood Builders, Inc. v. Wall Plumbing & Heating Co., Inc., 287 So. 2d 352 (Fla. 4th DCA 1973)
- VAN Delinder v. Albion Realty & Mortg., Inc., 287 So. 2d 352 (Fla. 3d DCA 1973)