Florida Appeals Court Puts Kibosh On Judicial "Benevolence & Compassion" When Setting Sale Dates In Foreclosure Actions

In Miami, Florida, the Miami Daily Business Review reports:

• "Benevolence and compassion” have no place when it comes to setting foreclosure sales, a state appellate court ruled in a stern order. The 3rd District Court of Appeal judges said they "thoroughly disapprove" of a decision by Miami-Dade Circuit Judge Valerie Manno Shurr to give an extra month to a couple trying to sell their home before a foreclosure sale, Senior Judge Alan R. Schwartz wrote for the panel last week.

• Manno Shurr declined to comment on the decision, citing judicial rules that prohibit her from talking about specific cases. But in court, she made her position clear. “People are having a hard time now. They are having a difficult time. Everybody knows it. Businesses are failing. People are losing money in the stock market. You know, unemployment is high,” Manno Shurr said. “Everybody knows that we are in a bad time right now, and I hate to see anybody lose their home.”(1)

• The appellate court found her reasoning flawed and said her decision granting extra time was “an abuse of discretion in the most basic sense of that term” because the bank had a right to the sale.(2)

For more, see Appeal court takes judge to task for ‘benevolence’.

For the court ruling, see Republic Federal Bank, N.A. v. Doyle, No. 3D09-2405 (September 30, 2009 ).

(1) Charles M. Rosenberg, attorney for Republic Federal Bank, said his client decided to appeal Manno Shurr’s decision in part because the bank felt Miami-Dade trial judges “needed some guidance.” “With all of the foreclosures being filed in this county, we thought that the trial judges needed some guidance from the court of appeal on under what circumstances they could grant extensions because it’s very common for people to run into court at the last minute asking for extensions,” he said.

(2) The Florida appellate court reinforced their ruling with this observation from a 1980 ruling of the Florida Supreme Court, which, in turn, invoked some words of wisdom from the late U.S. Supreme Court Associate Justice Benjamin Cardozo, regarding the discretionary power of judges:

• The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness. In this regard, we note the cautionary words of Justice Cardozo concerning the discretionary power of judges:

• The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains. B. Cardozo, The Nature of the Judicial Process 141 (1921).