Short selling your home? Here’s a tip: start the process well in advance of a scheduled foreclosure sale

Short selling your home? Here’s a tip: start the process well in advance of a scheduled foreclosure sale

A September, 2018 opinion[note]Ocean Bank v. Gato, 2018 WL 4761845, ___ So.3d ___ (Fla. 3d DCA 2018).[/note] from Florida’s Third District Court of Appeals provides guidance on what is not a “lawful, cognizable basis” for cancelling, rescheduling, or continuing a judicial foreclosure sale date, in the absence of an agreement from the plaintiff (lender). In the case below, thirteen days before a foreclosure sale[note]This was the second foreclosure sale to be scheduled, with the first having been canceled due to the homeowner filing bankruptcy. The bankruptcy case was dismissed not long after it was filed, resulting in the foreclosure sale being reset.[/note] was set to occur, the plaintiff/homeowner filed an “emergency” motion to cancel the foreclosure sale, citing as the basis a contemplated short sale, and attaching a short sale contract dated twelve dates prior to the “emergency” motion.

At the hearing on the homeowner’s motion to cancel, the plaintiff/bank explicitly objected, stating, “The bank has declined the short sale which would leave us tens of thousands of dollars short. We have filed our objection in writing and the law says that under those circumstances the motion to cancel the sale should not be granted.” The court’s response? “So what I’m going to do is give it a 90-day resale date with no further continuances.”

The bank appealed this decision to the Third DCA. The appeals court, in citing to Florida Statutes § 45.031(1)(a)[note]Florida Statutes § 45.031(1)(a) states that “the court shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date thereof.” The statute continues, “[a] sale may be held more than 35 days after the date of final judgment or order if the plaintiff or plaintiff’s attorney consents to such time.” (Emphasis added).[/note], said that the court’s rescheduling of the sale was improper as the homeowner’s basis for wanting the sale canceled was not a “lawful, cognizable basis,” in light of the bank’s objection. However, in an odd twist that only an attorney could find interesting, the appeals court, in its enlightened wisdom, affirmed the lower court’s ruling, despite the ruling being wrong, because reversing the decision may have resulted in further delay to the bank’s foreclosure sale.

No contract, no fees, no, really

We’re all familiar with the notion that one can’t have something both ways, a notion that has been idiomized in a number of ways over the years:

  1. “What’s good for the goose is good for the gander.”
  2. “You can’t have your cake and eat it, too.”
  3. “What goes around, comes around.”
  4. “Because the homeowner prevailed on an argument that the bank failed to prove entitlement to enforce the note and mortgage, the homeowner cannot now seek to take advantage of the fee provisions of the note and mortgage.”

Wait, say what? You’re not familiar with that fourth one? Well, you’re forgiven because it’s fairly recent, originating from a 2018 case[note]Torres v. Bank of New York for Certificate Holders CWABS, Inc. Asset Backed Certificates Series 2006-26, No. 4D17-1625, 2018 WL 4026038 (Fla. 4th DCA 2018).[/note] decided by Florida’s Fourth District Court of Appeals. In the referenced case, the 4th DCA had to decide whether a homeowner who successfully defended a foreclosure action was entitled to recover from the foreclosing bank his defense attorney’s fees and costs. At trial, the homeowner was successful in opposing the foreclosing lender’s attempt to introduce the promissory note into evidence. No note, no foreclosure, right? Well, sure, said the trial court, and the homeowner won the case. To the victor go the spoils, apparently, so the homeowner then sought to recover from the bank his attorney’s fees and costs, as well. When his request was denied, he appealed.

The American Rule

In America, our court systems follow the “American Rule,” requiring that all litigants in court pay for their own attorney’s fees and costs. The exception to this rule is that parties may recover fees and costs from the other side if a statute, rule, or contractual provision provide for such. The homeowner claimed entitlement to his fees and costs based upon the provision in the note and mortgage providing for same.

Goose, meet Gander

The 4th DCA said that this doesn’t fly; the homeowner could not recover his attorney’s fees and costs under the contract, when the contract never made it into evidence, because (recall) that the homeowner opposed its admittance.

Not a goose egg, however

Despite this, the 4th DCA did, however, hold that the homeowner was entitled to recover his costs; not because of the contractual provision, but because of a rule and a statute, specifically, Fla. R. Civ. P. 1.420(d)[note]Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs.”[/note] and Florida Statutes, § 57.041(1)[note]”The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment ….”[/note].