High Bid Of $6,500 Pursuant To $280K Foreclosure Judgment Kiboshed Where Lender Failed To Publish Pre-Sale Notice

A Florida appeals court recently affirmed a lower court ruling nullifying a foreclosure sale where the pre-sale notice was not published in a local newspaper as required by state law.(1) The sale, pursuant to a foreclosure judgment in the amount of $280,982.34, proceeded and yielded a high bid of $6,500 from a private investor.

For the ruling, see Castelo Development, LLC v. Aurora Loan Services, LLC, 4D11-1987 (March 28, 2012).

(1) The appeals court explained their reasoning as follows:

• The trial court's final judgment of foreclosure required the clerk of the court to sell the property by electronic sale to the highest bidder for cash "in accordance with section 45.031, Florida Statutes." Section 45.031, Florida Statutes, requires that notice of sale "be published once a week for 2 consecutive weeks in a newspaper of general circulation." §45.031(2), Fla. Stat. (2011).
  
  It is undisputed that in this case the notice of sale was not published as required by statute. Castelo argues that the statute is silent as to what happens if the notice of sale is not published. A plain reading of the statute, however, supports the trial court's interpretation that a foreclosure sale should not be confirmed if the notice of sale was not published.
  
  Subsection four of the statute dictates that after the sale of the property, the clerk of the court shall promptly file a certificate of sale. § 45.031(4). The statute, however, requires that as part of the certificate of sale, the clerk must certify that the "notice of public sale of the property described in the order or final judgment was published in . . . a newspaper circulated in" the county where the property is located. Id.
  
  Thus, if the clerk cannot certify that the notice of sale was published, the clerk should not issue the certificate of sale. Without a certificate of sale, the clerk of the court lacked authority to issue a certificate of title and thereby confirm the sale. § 45.031(5), (6).
  
  In summary, the clerk of the court acted properly in refusing to issue a certificate of sale because the clerk could not certify that the notice of sale was published prior to the public sale. The trial court, therefore, correctly denied Castelo's motion to compel the clerk to do so. We also find that the trial court did not abuse its discretion by refusing to confirm the foreclosure sale.