FIRSTBANK PUERTO RICO, D/B/A FIRSTBANK FLORIDA, PETITIONER,
v.
ALEXANDER OTHON AND SARA OTHON, RESPONDENTS
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FirstBank Puerto Rico challenged a trial court's order canceling a foreclosure sale scheduled for the next day. The Fourth District Court of Appeal agreed the trial court abused its discretion by granting the cancellation based on compassion and the borrowers' listing efforts, but denied the writ to avoid further delay and directed the rescheduled sale to proceed without further continuances unless the bank consents.
The trial court departed from the essential requirements of law and abused its discretion in canceling the foreclosure sale. Compassion, benevolence, and the borrowers' listing efforts are not cognizable legal bases for canceling a foreclosure sale in contravention of statutory direction requiring sales to proceed within the prescribed timeframe.
[1] A trial court departs from the essential requirements of law when it cancels a foreclosure sale based on grounds of benevolence and compassion, or the mere possibility of…
[2] The statutory timeframe for conducting a foreclosure sale must be adhered to, and a cancellation that contravenes this statutory direction constitutes a departure from th…
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“the 'ground' of benevolence and compassion (or the claim asserted below that the defendants might be able to arrange for payment of the debt during the extended period until the sale) does not constitute a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.”
Establishes that compassion and hopes of debt payment are not valid legal grounds for continuing or canceling foreclosure sales.
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Join FLexlaw to unlock all legal intelligenceFirstBank obtained a final judgment of foreclosure against Alexander and Sara Othon. The day before the scheduled sale of the respondents' property, t…
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The day before the scheduled sale of respondents’ property pursuant 'to petitioner’s final judgment of foreclosure, respondents moved to cancel the sale based upon their entering into a listing contract to sell the property and the wife’s poor health. Over the objection of the petitioner bank, the court cancelled the sale and reset it ninety days later. The bank brought this petition for writ of certiorari, claiming that the court departed from the essential requirements of law in cancelling the sale. We agree.
We adopt the reasoning of Republic Federal Bank, N.A. v. Doyle, 19 So.3d 1053 (Fla. 3d DCA 2009), where the trial court also granted a continuance of a foreclosure sale based upon compassion for the mortgagor. In concluding that this was an abuse of discretion the court said:
Although granting continuances and postponements are, generally speaking, within the. discretion of the trial court, the “ground” of benevolence and compassion (or the claim asserted below that the defendants might be able to arrange for payment of the debt during the extended period until the sale) does not constitute a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation. This is particularly true here because the order contravenes'the terms of the statute that a sale is to be conducted “not less than 20 days or more than 35 days after the date” of the order or judgment.. § 45.031(l)(a), Fla. Stat, (2008).
Id. at 1054 (footnote omitted.)
. Similarly, neither the fact that the respondents in this case listed their property in hopes of obtaining a short sale nor the fact that the wife had medical problems is a ground to cancel the sale. The trial court contravened the statutory direction.
This case is also like Doyle in that the rescheduled sale has been set, and granting this -writ may actually delay it further. Therefore, although we conclude that the trial court departed from the essential requirements of law, we deny the writ solely to prevent further delay of the sale. We direct that the sale shall proceed on the assigned date, and no further continuances or cancellations shall occur without the express consent of the petitioner. ■
WARNER, MAY and KLINGENSMITH, JJ., concur.
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Ocean Bank v. Gato, 256 So. 3d 960 (Fla. 3d DCA 2018)…d period of time “does not constitute a lawful, cognizable basis for granting relief to one side to the detriment of the other.” Republic Fed. Bank, N.A. v. Doyle, 19 So. 3d 1053, 1054 (Fla. 3d DCA 2009); see also Firstbank Puerto Rico v. Othon, 190 So. 3d 110, 111 (Fla. 4th DCA 2015) (explaining that neither the wife’s medical problems nor the fact that the respondents listed their property in hopes of obtaining a short sale are grounds to cancel the foreclosure sale in contravention of section 45.031…
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Lazara A. Rodriguez v. THE Bank of NEW York Mellon (Fla. 3d DCA 2021)…action of any kind can rest on such a foundation.’” Phoenix Holding, LLC v. Martinez, 27 So. 3d 791, 793 (Fla. 3d DCA 2010) (quoting Republic Fed. Bank, N.A. v. Doyle, 19 So. 3d 1053, 1054 (Fla. 3d DCA 2009)); see Firstbank Puerto Rico v. Othon, 190 So. 3d 110, 111 (Fla. 4th DCA 2015) (finding trial court abused its discretion where it granted a continuance of a foreclosure sale based upon compassion for the mortgagor). While we may be sympathetic to Ms. Rodriguez’s plight, our guiding principle is th…
Authorities Cited
- Republic Fed. Bank, N.A. v. Doyle, 19 So. 3d 1053 (Fla. 3d DCA 2009)