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Court Controls Date of Foreclosure Sale

Posted: December 10, 2010 Filed under: Case Law, Uncategorized

LR5A-JV v. Little House, LLC, No. 5D09-3857 (Fla. 5th DCA Dec. 10, 2010) is yet another case emanating from Florida’s foreclosure crisis. Little House involved the judgment holder’s claim that it alone had “the right to control when, if at all, a foreclosure sale takes place under section 45.031, Florida Statutes (2010).” Because the trial court scheduled a sale on the motion of the owner’s association (which was harmed by a delay in the sale because it could not collect assessments from the judgment holder until the sale concluded), the judgment holder contended “that the trial court was not authorized to order a post-judgment, judicial sale of the mortgaged property, or, if the trial court possessed such authority, it abused its discretion in ordering the sale.”

The Fifth District Court of Appeal flatly rejected the judgment holder’s argument. Relying on the plain language of section 45.031(1)(a), the equitable nature of foreclosure proceedings, and the report of the Task Force on Residential Mortgage Foreclosure Cases, the court of appeal held that the “trial court’s order setting the judicial sale fully comports with the statute,” which “clearly required the trial court to set a judicial sale date between 20 to 35 days after entry of the final judgment or order directing a judicial sale, but allows an extension with the plaintiff’s consent.”

Admitted: Florida, Kansas, New Mexico (inactive)