BANKERS TRUST COMPANY OF CALIFORNIA, N.A., ETC., PETITIONER,
v.
JOHN WILLIAM WEIDNER, III, ETC., ET AL, RESPONDENT
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Bankers Trust obtained a valid foreclosure judgment, but the trial court indefinitely stayed the sale after the mortgagor's death to allow the appointed guardian to explore preserving the minor child's assets; the appellate court reversed, holding that an indefinite stay without evidence of equity or security requirements is an abuse of discretion.
An indefinite stay of foreclosure sale is an abuse of discretion when based solely on speculation that the property may have equity without evidence of such equity or conditions protecting the mortgagee's interests.
[1] A trial court abuses its discretion by granting an indefinite stay of foreclosure based on speculation that property may contain equity without evidence of such equity, s…
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Join FLexlaw to unlock all legal intelligenceBankers Trust obtained a valid summary judgment of foreclosure. The mortgagor died on December 3, 1996, leaving two children. The mortgagor's father w…
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HARRIS, Judge.
Bankers Trust Co. of California, N.A. successfully obtained a summary judgment of foreclosure of the property involved in this action. A foreclosure sale was set for December 19, 1996. There is no question that the summary judgment was properly entered. The mortgagor, however, died on December 3, 1996 leaving two children. Her father moved to be appointed guardian of the minor child and petitioned the court to stay the foreclosure sale for at least 90 days. The court went him one better and granted the stay indefinitely. Bankers Trust seeks certiorari; we grant it and reverse.
The sole reason stated for the stay is that the guardian needs “to see if the assets of the minor child can be preserved by sale of the homestead, rather than loss of the homestead by foreclosure.” There are no allegations that the property value exceeds the amount of the judgment nor is there any requirement that any security be given for the stay or that the property be insured or even maintained by the guardian during the period of the stay. The court has stayed indefinitely the enforcement of a mortgage merely on the offhand chance that there may be equity in the property in excess of the debt. This petition and the time to reschedule a new sale has already given the guardian in excess of 60 days to make that determination. That is time enough.
We grant the writ of certiorari and direct the trial court to reschedule the foreclosure sale.
COBB and GOSHORN, JJ., concur.