Tuesday, March 15, 2016

Florida Appeals Court Vacates Foreclosure Sale Where Borrowers' Timely Motion For Rehearing Of Judgment Was Pending

The following court ruling was recently handed down by a Florida appeals court in a case involving a foreclosure sale a trial judge refused to vacate, despite the fact that the homeowner had filed a timely motion for rehearing of the foreclosure judgment before the sale, and the motion remained pending when the property was sold:
  • In this foreclosure case, the borrowers appeal the post-judgment order denying their motion to vacate the foreclosure sale. The property was sold to the lender while the borrowers' timely motion for rehearing of the judgment was pending.

    Based on the lender's commendable confession of error, we agree that the foreclosure sale must be set aside. See Wollman v. Levy, 489 So. 2d 1239 (Fla. 3d DCA 1986) ("Once a timely motion for rehearing is made, the operation of the judgment is suspended until the motion is disposed of. [The borrowers] timely moved for a rehearing; therefore, the sale of the property should not have been carried out until the motion had been acted upon.") (internal citations omitted); Hoffman v. Bank United, N.A., 137 So. 3d 1039 (Fla. 2d DCA 2014) ("[W]e agree that the foreclosure sale of the property must be set aside because the sale was conducted while [the borrower's] timely motion for rehearing was pending.").

    Reversed and remanded.
For the ruling, see Prieto v. FNMA, No. 3D15-1518 (Fla. App. 3d DCA, March 2, 2016).

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