Court: District Court of Appeal of Florida; May 4, 2011; Florida; State Appellate Court
Jade Winds Association, Inc. appeals a non-final order from the Foreclosure Master Calendar Court, which granted Citibank, N.A.’s motion to cancel a scheduled foreclosure sale. The appeal follows Citibank's initial foreclosure action in October 2008 against Ramon Escobar, with Jade Winds later filing a cross-claim for unpaid association fees. Jade Winds obtained a default judgment in April 2009 and took title to the property in August 2009.
On the day of the scheduled foreclosure sale in October 2010, Citibank filed an Emergency Motion to Cancel, claiming it needed to assess Escobar's eligibility for a loan modification. This assertion was misleading, as Jade Winds held the title, not Escobar. Additionally, Citibank failed to serve the motion to Jade Winds’ counsel, leading to an ex parte hearing that resulted in the cancellation of the sale and its rescheduling for January 4, 2011.
Jade Winds subsequently filed a Motion for Sanctions against Citibank, which led to Judge Langer imposing monetary sanctions for violations of due process and stating that the January 4 sale should not be cancelled. However, Citibank later submitted a second Motion to Cancel the same sale without notifying Jade Winds’ counsel, which was also heard ex parte. Senior Judge Cook granted this second motion but did not reset the sale date. The appeal addresses these procedural irregularities and the failure to provide due process to Jade Winds.
Jade Winds argues that its procedural due process rights were violated due to Citibank's failure to serve its counsel with the Second Motion to Cancel and to notify them of the hearing. The court concurs, emphasizing that procedural due process requires notice and an opportunity to be heard, as established in relevant case law. Florida Rule of Civil Procedure 1.080 mandates that all subsequent pleadings must be served on each party, specifically on their attorneys when representation exists. In this case, Citibank did not properly serve Jade Winds’ counsel or attempt to notify them through any means despite their active participation in the litigation. Citibank's failure to notify was particularly egregious given previous sanctions imposed for similar conduct. The court declares the Order Canceling Sale void due to lack of notice, reversing the order and remanding the case to set the foreclosure sale. Although the sufficiency of the Second Motion to Cancel is not addressed, the court notes deficiencies in Citibank's motion, such as the omission of the final judgment date and prior motions to cancel. Additionally, the court references the Florida Supreme Court's adoption of Form 1.996(b), aimed at ensuring clarity in motions to cancel or reschedule foreclosure sales, highlighting the need for comprehensive case history to avoid abuse of the sales process.
Citibank has caused the condominium unit to remain in limbo since April 2009, when foreclosure judgment was entered. The court has reversed the prior order and directed the scheduling of a foreclosure sale. The Division Circuit Court and Foreclosure Master Calendar judge have the authority to impose sanctions on Citibank or its counsel for their actions. Jade Winds, the not-for-profit condominium association, noted that this unit is one of over 100 delinquent units.
The Foreclosure Master Calendar Court Unit was established on April 20, 2010, to handle residential foreclosure cases, shifting the responsibility for certain motions from General Jurisdiction judges to the presiding judge of the Foreclosure Master Calendar. Subsequent administrative memoranda expanded the presiding judge's role in hearing motions to cancel foreclosure sales and established requirements for notifying opposing parties.
Jade Winds filed a Petition for Writ of Certiorari/Mandamus, but the court found jurisdiction to review the non-final order under Florida Rule of Appellate Procedure 9.130(a)(4). The court referenced a precedent where it had jurisdiction to review similar petitions despite disapproving of the order in question. The failure to reset the foreclosure sale likely aligned with the Administrative Memorandum CIV 10-E's stipulations regarding cancellations. Furthermore, the Eleventh Judicial Circuit provided guidelines for filing motions to cancel sales, emphasizing the need for proper notification to opposing counsel.
