POUPY P. JOSECITE AND DARLINE JOSECITE, APPELLANT,
v.
WACHOVIA MORTGAGE CORPORATION, AND UNDERWOOD & UNDERWOOD, LLC, APPELLEES
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The Josecites appealed the denial of their motion to vacate a foreclosure sale after they and Wachovia entered into a forbearance agreement requiring the foreclosure to be placed "on hold." The court reversed, holding that a foreclosure sale may be vacated on independent grounds of surprise, accident, mistake, or irregularity in the sale process, not merely for grossly inadequate price, and that Wachovia's failure to cancel the sale despite the forbearance agreement constituted such irregularity.
A judicial foreclosure sale may be vacated on independent grounds of surprise, accident, mistake, or irregularity in the conduct of the sale, regardless of whether the bid price was grossly inadequate. The trial court erred by applying the Arlt test, which requires inadequate price as a prerequisite. Wachovia's failure to cancel the sale despite the forbearance agreement's requirement to place the foreclosure "on hold" constituted an irregularity warranting vacation of the sale.
[1] A judicial sale may be vacated and set aside on grounds of surprise, accident, or mistake imposed on a complainant, or irregularity in the conduct of the sale, independen…
[2] A forbearance agreement requiring a lender to place foreclosure proceedings on hold necessitates the cancellation of a scheduled foreclosure sale.
Previewing 2 of 5 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“upon receipt of the signed agreement and the down payment, the foreclosure will be placed on hold for the term of the forbearance.”
The critical provision of the forbearance agreement that required cancellation of the foreclosure sale, which Wachovia breached.
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Join FLexlaw to unlock all legal intelligenceDays before a July 5, 2011 foreclosure sale, the Josecites and Wachovia entered into a forbearance agreement requiring the Josecites to make payments …
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Poupy and Darline Josecite appeal the trial court’s order denying their motion to vacate a judicial sale conducted pursuant to a final judgment of foreclosure. We reverse.
Several days before the July 5, 2011 sale, the Josecites and Wachovia Mortgage Corporation, acting through its servicing agent, entered into a forbearance agreement. That agreement required the Jo-secites to make a series of payments to Wachovia’s agent, the first of which was due on Friday, July 1, 2011. The agreement further provided that “upon receipt of the signed agreement and the down payment, the foreclosure will be placed on hold for the term of the forbearance.” The Josecites timely submitted the signed agreement and the first payment. However, the foreclosure sale was not cancelled and Underwood & Underwood, LLC, in-tervenors in this appeal, purchased the property at a price that the Josecites concede is not grossly inadequate.
The Josecites promptly filed a motion to vacate the sale. Following a hearing, the trial judge denied their motion, ruling:
Following the test set forth by the Supreme Court of Florida in Arlt v. Buchanan, 190 So.2d 575 (Fla.1966), [the Josecites] have failed to establish a 1) grossly inadequate sales price as a result from 2) any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale.
There is no dispute that Wachovia and the Josecites settled, at least temporarily, the foreclosure action and that the forbearance agreement required Wachovia to place the foreclosure proceedings “on hold.” Because the sale was the only remaining step in the foreclosure process, we interpret the obligation to place the case “on hold” as requiring the lender to cancel the sale, which it failed to do.
Foreclosures are equitable proceedings under Florida law and settlements between litigants are favored. Wells Fargo Bank, N.A. v. Lupica, 36 So.3d 875, 876 (Fla. 5th DCA 2010). Because the Josecites do not assert inadequacy of the bid price as a ground for vacation of the sale, we do not believe the test established in Arlt applies. Accord Arsali v. Chase Home Fin., LLC, 79 So.3d 845 (Fla. 4th DCA), review granted, 86 So.3d 1112 (Fla.2012); Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002). Rather, we conclude this case is controlled by Moran-Alleen Co. v. Brown, 98 Fla. 203, 123 So. 561 (1929). In that case, which involved a suit to vacate and set aside a judicial sale of real property, the supreme court wrote:
On the question of gross inadequacy of consideration, surprise, accident, or mistake imposed on complainant, and irregularity in the conduct of the sale, this court is committed to the doctrine that a judicial sale may on a proper showing made, be vacated and set aside on any or all of these grounds.
*267 Id. at 561 (emphasis added). We agree with the Fourth District’s holding in Arsa-li that “surprise, accident, or mistake imposed on [a] complainant, and irregularity in the conduct of the sale” are four independent grounds that would support the setting aside of a foreclosure sale, irrespective of the sale price’s inadequacy. 79 So.3d at 847. The trial court’s conclusion that a foreclosure sale may only be vacated for a grossly inadequate bid price or other sale irregularity deprives the courts of their equitable powers and their duty to protect and preserve the integrity of the judicial sale process. See Ingorvaia, 816 So.2d at 1259; see also Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (1905).
In general, we review orders on motions to set aside foreclosure sales for an abuse of discretion. See, e.g., Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611, 613 (Fla. 4th DCA 2008). However, the trial court did not base its order on the exercise of discretion, and therefore, our review is not deferential. Instead, the trial court applied the wrong legal standard in determining whether the sale should be vacated, which is a question of law that we review de novo. See Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 986 (Fla. 2d DCA 2011). After applying the correct test, we conclude that the sale should be vacated and reverse the trial court’s order. We remand this matter with directions to take further actions consistent with this opinion.
REVERSED and REMANDED.
EVANDER and JACOBUS, JJ., concur.
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Arsali v. Chase Home Fin. LLC, 121 So. 3d 511 (Fla. 2013)…ses should have been upheld. Thus, as discussed below, our Brown and Arlt decisions are in harmony, even though the Fourth District (i.e., Arsali), Second District (i.e., Ingorvaia), and the Fifth District (i.e., Josecite v. Wachovia Mortgage Corp., 97 So. 3d 265 (Fla. 5th DCA 2012)) read them as conflicting decisions. In Brown, this Court heard an appeal from mortgagors who sought to vacate a judicial sale on grounds of “gross inadequacy of consideration, surprise and fraud imposed on complainants, irregul…
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Jenkins v. Silver Pines Ass'n, Inc. (Fla. 5th DCA 2021)…the abuse of discretion standard1 of review to orders or judgments entered by a trial court regarding the setting aside of judicial foreclosure sales. Arsali v. Chase Home Fin. LLC, 121 So. 3d 511, 519 (Fla. 2013); Josecite v. Wachovia Mortg. Corp., 97 So. 3d 265, 267 (Fla. 5th DCA 2012). As the appellant, the burden was solely upon Jenkins to establish or show to us, through his briefs, how the trial court abused its discretion in denying his motion to set aside or “reverse” the judicial foreclosure sale he…
Authorities Cited
- Leatha Fleeman Arlt v. Buchanan, 190 So. 2d 575 (Fla. 1966)
- Moran-Alleen Co. v. Brown, 98 Fla. 203 (Fla. 1929)
- Macfarlane v. Macfarlane, 50 Fla. 570 (Fla. 1905)
- Paul v. Wells Fargo Bank, N.A., 68 So. 3d 979 (Fla. 2d DCA 2011)
- Ingorvaia v. Horton, 816 So. 2d 1256 (Fla. 2d DCA 2002)
- Arsali v. Chase Home Fin., LLC, 79 So. 3d 845 (Fla. 4th DCA 2012)
- Long Beach Mortg. Corp. v. Bebble, 985 So. 2d 611 (Fla. 4th DCA 2008)
- Wells Fargo Bank, N.A. v. Lupica, 36 So. 3d 875 (Fla. 5th DCA 2010)