601 WEST 26 CORP., A/K/A 601 WEST 26 CORPORATION, A NEW YORK CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, AND TRUNK CORP., A/K/A TRUNK CORPORATION, A FLORIDA CORPORATION, APPELLANTS,
v.
EQUITY CAPITAL COMPANY, A MINNESOTA CORPORATION, APPELLEE
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In this foreclosure appeal, the Florida District Court of Appeal held that a trial court's material amendment to a foreclosure decree just two days before the sale, after statutory notice had been published, violated due process requirements for foreclosure proceedings. The court reversed the sale confirmation and remanded for a new sale under the original decree.
The court held that the material change to the foreclosure decree after publication of required seven-day notice and two days before sale vitiated the notice and violated due process. The court affirmed the original October 8 decree and the supplemental October 20 order increasing the amount due, but reversed the November 10 order confirming the sale and remanded for a new sale.
“the material change and addition to the foreclosure decree after publication of required 7-day notice, and two days before the sale, vitiated the notice”
Establishes the core holding that amending a decree after notice publication violates statutory requirements.
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Join FLexlaw to unlock all legal intelligenceEquity Capital Company sought foreclosure of two mortgages against properties owned by 601 West 26 Corp. and Trunk Corp. A foreclosure decree was ente…
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These consolidated appeals are by defendants from a decree and two subsequent orders. Suit was brought for foreclosure of two inferior mortgages. The one which was first in time encumbered numerous parcels aggregating a score of lots. The other encumbered the same and additional property.
While a ruling relating to the later of the two mortgages was appealed, the trial court proceeded with the foreclosure of the other. A foreclosure decree was entered October 8, 1964, finding $189,758.03 due thereon. The decree ordered sale on October 22, 1964, on the required published notice. On October 20, 1964, two days before the advertised sale, the decree was amended and supplemented by an order which increased the amount due thereunder by $53,848.69 and $500 attorney’s fees. The increase represented a payment made by plaintiff on a superior mortgage subsequent to the decree of October 8.
On the foreclosure sale held on October 22 the plaintiff became the purchaser. Thereafter the court denied objections filed by defendants and confirmed the sale by an order dated November 10, 1964. The appeals taken by defendants from the foreclosure decree and the above described two subsequent orders were consolidated. The several contentions presented by the appellants have been considered and are found to be without merit, except for the point discussed below.
Appellant contends, and we agree, that the material change and addition to the foreclosure decree after publication of required 7-day notice, and two days before the sale, vitiated the notice. This is so because the statutory provision for notice of foreclosure sale requires that the decree specify a day for the sale not less than ten nor more than thirty days after the date of the decree, and for notice of sale to be published at least seven days prior to the sale. Also, the statute [§ 702.02(2) (c)] provides that the notice of sale shall specify the final decree of foreclosure under which the sale is to be held. Those requirements are not met if the decree is substantially changed after the published notice of sale. Here the sale was held less than ten days after the decree as amended, and the notice was less than seven days and did not refer to the decree as changed and amended.
For the appellee it was argued that if any irregularity occurred in connection with the sale, the appellants were not entitled to complain because they did not attend the sale, seek to purchase the property on foreclosure, or otherwise show any harm resulting to them. That argument of appellee is without merit. In this state, by statute, mortgages must be foreclosed by a suit in equity. § 702.01, Fla.Stat., F.S.A. The rules of practice prescribe the nature of such proceedings and the statute relating to foreclosure is specific as to the time when sale can be had, the time for publication of notice thereof and the contents of the notice. § 702.02, Fla.Stat., F.S.A. One whose rights in property are divested by foreclosure is entitled to have the proceedings conducted according to due process of law. This is not accomplished when the provisions for notice and advertisement for sale as prescribed by statute are substantially departed from. First Federal Savings & Loan Ass’n v. Porter, 408 Pa. 236, 183 A.2d 318, 324; 59 C.J.S. Mortgages § 606. Here such departure from the statutory requirements was brought to the attention of the chancellor by timely objection to the sale.
Accordingly the foreclosure decree of October 8, 1964 and the supplemental decree of October 20, 1964, increasing the amount thereof are affirmed. The order of November 10, 1964, denying the objections of defendants and confirming the foreclosure sale is reversed; and the cause is *628remanded to the circuit court with directions to make provision for a resale at plaintiff’s cost under the foreclosure decree of October 8, 1964, as amended by the order •or decree of October 20, 1964.
Affirmed in part and reversed in part and remanded.
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YHT & Assocs., Inc. v. Nationstar Mortg. LLC, 177 So. 3d 641 (Fla. 2d DCA 2015)…Leasing Co. v. DeMartino, 15 So. 3d 711, 714 (Fla. 2d DCA 2009) (reiterating this court’s earlier holding that the intended third-party beneficiary of an insurance release has standing to enforce the release); 601 W. 26 Corp. v. Equity Capital Co., 174 So. 2d 626, 627 (Fla. 3d DCA 1965) (ruling that the failure of the defendants to attend the foreclosure sale did not affect their ability to appeal). Appeal dismissed. VILLANTI, C.J., and BLACK, J„ Concur. . This court recently held that an owner who obtain…
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601 W. 26 Corp. v. Equity Cap. Co., 178 So. 2d 894 (Fla. 3d DCA 1965)…PER CURIAM. This cause was originally submitted to this court by an appeal which resulted in an opinion and decision of reversal, reported as 601 West 26 Corp. v. Equity Capital Company, Fla.App.1965, 174 So. 2d 626, which opinion concluded with the following language: “Accordingly the foreclosure, decree of October 8, 1964 and the supplemental decree of October 20, 1964, increasing the amount thereof are affirmed. The order of November 10, 1964, denying the o…
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601 W. 26 Corp. v. Equity Cap. Co., 177 So. 2d 739 (Fla. 3d DCA 1965)…by virtue of its * * * [*740] [November] mortgage * * At the foreclosure sale of the July mortgaged property, plaintiff-mortgagee was the successful bidder; but that sale was set aside. See 601 West 26 Corp. v. Equity Capital Company, Fla.App.1965, 174 So. 2d 626. Meanwhile, before this court’s disposition of the appeal in that case, the November mortgage was foreclosed, and the chancellor eliminated from the ensuing sale those parcels included in the November mortgage which had been sold at the sale pursua…
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