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Jade Winds Association, Inc. v Citibank, N.A.

Case No. 3D11-275 (FL Dist. 3 Ct. App., May. 4, 2011)

The appellant, Jade Winds Association, Inc. (“Jade Winds”), a condominium association, appeals from a non-final order issued by the Presiding Judge of the Foreclosure Master Calendar Court Unit (“Foreclosure Master Calendar”), granting Citibank, N.A.’s (“Citibank”) motion to cancel a foreclosure sale. We reverse and remand with directions.

In October 2008, Citibank filed an action to foreclose its first mortgage on a condominium unit owned by Ramon Escobar, naming Escobar and Jade Winds as defendants. Shortly thereafter, Jade Winds filed a cross-claim against Escobar, seeking past due association fees, costs, and attorney’s fees. In April 2009, a default final judgment was entered in favor of Jade Winds, and in August 2009, Jade Winds took title to the property via a Certificate of Title.

In an attempt to move the case forward, on February 23, 2010, Jade Winds filed a Waiver of Public Sale and Motion for Entry of Summary Judgment in Favor of Plaintiff Citibank. On August 19, 2010, a final judgment of foreclosure was entered in favor of Citibank, setting the foreclosure sale for October 8, 2010.

On the morning of the scheduled foreclosure sale, Citibank appeared before the presiding judge of the Foreclosure Master Calendar with an Emergency Motion to Cancel and Reschedule Foreclosure Sale (“Motion to Cancel”), asserting: “Plaintiff has instructed its counsel to cancel this sale in order to determine whether the Defendant qualifies for a loan modification.” (Emphasis added). Obviously, this assertion by Citibank’s counsel was misleading as Jade Winds, not Escobar, held title to the property as of August 2009, and therefore, Citibank would not be attempting to determine if Escobar would qualify for a loan modification. Unfortunately, the irregularities did not end there. The certificate of service in the Motion to Cancel indicates that the motion was mailed to several parties on October 1, 2010, but inexplicably was not mailed to Jade Winds’ counsel of record, who had actively participated in this litigation. As Citibank failed to serve Jade Winds’ counsel and made no attempt to contact counsel to inform him of the Motion to Cancel, it was heard on an ex parte basis. The presiding judge of the Foreclosure Master Calendar entered an order canceling the foreclosure sale and resetting it for January 4, 2011 (“Order Canceling Sale”).
 

 

Judge(s): Leslie B. Rothenberg
Jurisdiction: Florida Court of Appeals, Third District
Related Categories: Civil Remedies , Finance / Banking
 
Trial Court Judge(s)
Philip Cook

 
Court of Appeals Judge(s)
Angel Corti├▒as
Leslie Rothenberg
Richard Suarez

 
Appellant Lawyer(s) Appellant Law Firm(s)
Michael Schimmel Toyne & Mayo PA
Ross Toyne Toyne & Mayo PA

 
Appellee Lawyer(s) Appellee Law Firm(s)
Andrea Shelowitz Gladstone Law Group PA

 

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in october 2008, citibank filed an action to foreclose its first mortgage on a of plaintiff citibank. on august 19, 2010, a final judgment of foreclosure was essential requirements of law'"). third district court of appeal general jurisdiction division ("division judges") will no longer hear certain (fla. 4th dca 2008) ("a fundamental requirement of due process is `notice ________________ ormation.pdf (last visited apr. 7, 2011). the history of the case: date of final judgment, prior sales dates given, movant and before the foreclosure master calendar. the brochure provides that motions to jurisdictional analysis prior to testing whether the nonfinal order passes the less than one month after judge langer issued the order imposing whether the sales process is being abused. . . . again, this is designed entered in favor of citibank, setting the foreclosure sale for october 8, 2010. motions to cancel and reason given for cancellation, dates of prior vs. 9 failed to serve jade winds' counsel and made no attempt to contact counsel to date of the final judgment, the initial foreclosure sale date set forth in the final the "foreclosure master calendar court unit" was established on april 20, counsel of record, who had actively participated in this litigation. as citibank jade winds then filed a motion for sanctions against citibank based on being reset so as to determine when they can properly be reset, or under the "etc." portion of the "history of the case." cancel sale presented to its judges. prior cancellations, including date of prior motions to cancel and reason given for cancellation, dates of prior association. in an attempt to move the case forward, on february 23, 2010, jade winds the eleventh judicial circuit published a brochure setting forth procedures service in the motion to cancel indicates that the motion was mailed to several time of this decision, no useful purpose will be served by formally that judge langer, just a few weeks earlier, had entered an order stating that the toyne & mayo, and ross b. toyne and michael schimmel, for appellant. county, philip cook, senior judge. parties on october 1, 2010, but inexplicably was not mailed to jade winds' precise language, and supporting documentation in the motions to process rights"; the order canceling sale was "void for lack of notice"; and the an order granting citibank's motion to cancel the foreclosure sale due to "affidavit mandamus. however, we conclude that our jurisdiction to review this non-final dca 1989) (reversing post-judgment order postponing foreclosure sale finding an on the morning of the scheduled foreclosure sale, citibank appeared before jurisdiction to review non-final, post-judgment order setting foreclosure sale); injury for the remainder of the trial that cannot be remedied on postjudgment for sanctions was heard before division judge lester langer, a circuit court judge (emphasis added). therefore, this court implicitly determined that it had jv v. little house, llc, 50 so. 3d 691, 693 n.2 (fla. 5th dca 2010) (finding that, 3. parties must make every attempt to notice the opposing parties on set forth that sanctions were previously entered based on its handling of a effective date of december 20, 2010, provides that motions to cancel or reset sale to cancel and reschedule foreclosure sale ("motion to cancel"), asserting: notify counsel. citibank, n.a., and ramon escobar, although we thus thoroughly disapprove of the order, in view jade winds is a not-for-profit condominium association. according to jade action, except applications for witness subpoena, shall be served on each party. . . upon the party is ordered by the court."5 foreclosure "sale scheduled for january 4, 2011, shall not be cancelled." extended limbo between final judgment and sale. administrative memorandum civ10-e, which provides that a reset date will not 7 currently, many foreclosure sales set by the final judgment and that in republic federal bank, n.a. v. doyle, 19 so. 3d 1053, 1055 (fla. 3d dca standard of review on its merits, i.e., whether the order is a `departure from the jade winds took title to the property via a certificate of title. clear that citibank failed to properly serve jade winds' counsel with the second foreclosure cases. pursuant to the administrative memorandum, judges in the heard. shlishey the best, inc. v. citifinancial equity servs., inc., 14 so. 3d 1271, requested by citibank ("second order canceling sale").4 appellant, 6 3. there will be no reset dates given at time of cancellation on escobar, held title to the property as of august 2009, and therefore, citibank granting citibank, n.a.'s ("citibank") motion to cancel a foreclosure (discussing distinction between dismissing a petition for writ of certiorari for lack jurisdiction to review the petition for writ of certiorari. see parkway bank v. fort judge langer entered an order imposing monetary sanctions against citibank, amendments to the florida rules of civil procedure, 44 so. 3d 555, 557-58 (fla. seeking past due association fees, costs, and attorney's fees. in april 2009, a a basic element of procedural due process is notice and an opportunity to be rule of civil procedure 1.080(a) provides: "unless the court otherwise orders, "void for lack of notice." accordingly, we reverse the order under review and 2009), this court denied, not dismissed, a petition for writ of certiorari seeking to its procedural due process rights were violated because citibank failed to serve foreclosure sale be postponed until after february 1, 2011, to enable it to complete "plaintiff has instructed its counsel to cancel this sale in order to determine 5 this non-final appeal against citibank and/or its counsel based on the aforementioned conduct. gladstone law group, p.a., and andrea shelowitz (boca raton), for must: petitioner must demonstrate that the order, if not quashed, would result in material provides that a motion to cancel or reset sale "must" "[i]nclude a statement of previously filed motion to cancel foreclosure sale, we believe that this would fall actively participated in this litigation. further, based on judge langer's previous cancel sale "must be filed with the clerk of courts and opposing counsel notified instead, these motions will be heard by the presiding judge of the foreclosure motions, including emergency motions to cancel sale set within forty-eight hours. reviewable as a non-final order under rule 9.130(a)(3)(c)(iii)). we also recognize judge of the foreclosure master calendar court unit ("foreclosure master 4 foreclosure sale and resetting it for january 4, 2011 ("order canceling sale"). obviously, this assertion by citibank's counsel was misleading as jade winds, not 2 with all the procedural complications which would then result. for . . . . pursuant to florida rule of appellate procedure 9.130(a)(4), appellate court has of jurisdiction and denying a petition for writ of certiorari on the merits; explaining importantly, the order provides: "the court further orders that the sale scheduled (emphasis added). further, administrative memorandum civ10-e, with an further, as with its previous motion to cancel, citibank failed to mail a copy of inform him of the motion to cancel, it was heard on an ex parte basis. the remand with directions to set the foreclosure sale. review of citibank's second motion to cancel indicates that it did not include the would not be attempting to determine if escobar would qualify for a loan . . . . by either delivery, facsimile, email, or phone call, although jade winds' counsel condominium unit to be sold. the second motion to cancel was filed on an "emergency" basis, but note that opinion filed may 04, 2011. order imposing sanctions against citibank, citibank knew that its actions were lower tribunal no. 08-59283 whether the defendant qualifies for a loan modification." (emphasis added). in the division in which the foreclosure action was assigned. on that same day, citibank apparently made no attempt to notify jade winds' counsel of the motion myers armature works, inc., 658 so. 2d 646, 648-49 (fla. 2d dca 1995) accordingly, we reverse the order under review and remand with directions on january 4, 2011, citibank appeared before senior judge philip cook, prevented the court from making a proper determination on the merits." more has basically been in "extended limbo" since april 2009, which is when the final winds, the subject unit is just one of more than 100 delinquent units in the petition for writ of certiorari concerning an order modifying visitation rights as certiorari, this court stated: be "given at time of cancellation on affidavit moratorium . . . cancellations." quashing the order or ordering the sale to take place on an earlier date 6. the eleventh judicial circuit encourages the use of factual detail, reversed and remanded with directions. however, omitted the facts that the foreclosure sale had been previously reset, and we reverse and remand with directions. orders to cancel sale, reason for any incomplete sales, etc. affidavit moratorium or loss mitigation cancellations. order is pursuant to florida rule of appellate procedure 9.130(a)(4). see lr5a- an appeal from a non-final order from the circuit court for miami-dade its review of "foreclosure documentation." the second motion to cancel, sale.3 appeal; explaining that "it is still necessary for an appellate court to conduct a are to be no further postponements of the sale. calendar"),2 quash an order continuing a foreclosure sale. in denying the petition for writ of the administrative order does not specifically state that the plaintiff is required to ________________ effect on july 26, 2010, expanded the role of the foreclosure master calendar. motion to cancel contained "substantive misrepresentations or omissions which handled by the clerks of court are the subject of vague last-minute homeowner's associations. . . . not final until disposition of timely filed motion for rehearing. judgment, prior sales dates given, movant and date of prior citibank's handling of the motion to cancel. on december 9, 2010, the motion and afford them an opportunity to present their objections.'") (quoting mullane v. "motion to cancel and reschedule foreclosure sale." this form was proposed by 5 presiding judge of the foreclosure master calendar entered an order canceling the who was the presiding judge at the foreclosure master calendar. on an ex parte judgment of foreclosure, or that there had been a prior motion to cancel. although motions to reset sales without giving any specific information as to abuse of discretion, and remanding with instructions to schedule judicial sale); see 8 condominium unit owned by ramon escobar, naming escobar and jade winds as 10 review," but failed to reset the foreclosure sale for a date after february 1, 2011, as 1. include a statement of the history of the case: date of final january 4, 2011, foreclosure sale ("second motion to cancel"), requesting that the http://www.rpptl.org/content/pdfs/circuit_11_foreclosure_master_calendar_inf 3 cancel, we refer citibank's counsel to administrative memorandum 10-e, which orders to cancel sale, reason for any incomplete sale, etc." (emphasis added). a the presiding judge, not the division judge, will hear all motions to cancel why the sale is being reset. it is important to know why sales are motion to cancel and failed to notify counsel of the hearing. we recognize that should also be included in the current motion. the foreclosure master calendar judge are free to impose appropriate sanctions the task force on residential mortgage foreclosure cases ("task force"). in re represented by an attorney, "service shall be made upon the attorney unless service follows. finding that citibank's "conduct was in direct violation of [jade winds'] due of the fact that the postponed sale is due to take place within a short the appellant, jade winds association, inc. ("jade winds"),1 defendants. shortly thereafter, jade winds filed a cross-claim against escobar, rothenberg, j. a 4 that reason alone, relief will be denied. we do emphasize that there jade winds filed a "petition for writ of certiorari and/or petition for writ of default final judgment was entered in favor of jade winds, and in august 2009, (emphasis added). every pleading subsequent to the initial pleading and every other paper filed in the sanctions, on december 30, 2010, citibank prepared a motion to cancel the state of florida, january term, a.d. 2011 at promoting effective case management and keeping properties out of ." (emphasis added). further, rule 1.080(b) explains that when a party is winds' counsel of the hearing. we agree. no. 3d11-275 1273 (fla. 2d dca 2009); see also williams v. primerano, 973 so. 2d 645, 647 failure to reset the foreclosure sale was most likely consistent with appellee citibank, n.a. 2010). in proposing form 1.996(b), the task force explained: 2 although we do not need to address the sufficiency of the second motion to jade winds association, inc., master calendar. thereafter, administrative memorandum civ10-b, which took 3 prior to appearing in court." (emphasis added). emergency motions, including borrowers and condominium and that to receive certiorari jurisdiction over a non-final, non-appealable order, jade winds' counsel with the second motion to cancel and failed to notify jade dates and reasons given in the prior motions for cancellation, also drago v. drago, 895 so. 2d 529, 529 (fla. 4th dca 2005) (re-designating a to set the foreclosure sale. upon remand, the division circuit court judge and/or modification. unfortunately, the irregularities did not end there. the certificate of for january 4, 2011, shall not be cancelled." reasonably calculated, under all the circumstances, to apprise interested parties . . . filed a waiver of public sale and motion for entry of summary judgment in favor 1 the presiding judge of the foreclosure master calendar with an emergency motion cent. hanover bank & trust co., 339 u.s. 306, 314 (1950)). further, florida commonwealth mortg. corp. of am., l.p. v. frankhouse, 551 so. 2d 599 (fla. 4th basis, senior judge cook considered the second motion to cancel, and he entered inappropriate. as judge langer simply found, citibank's "conduct was in direct administrative memorandum provides: foreclosure sale (emergency and regular), in all foreclosure actions. further, the appellees. id. at 558 (emphasis added). based on citibank's actions, this condominium unit adopted form 1.996(b), forms for use with rules of civil procedure, titled in challenging the second order canceling sale, jade winds contends that in the instant case, without rehashing the facts set forth in this opinion, it is 2010, through administrative memorandum civ10-a, which applies to residential condominium association, appeals from a non-final order issued by the presiding finally, we note that on february 11, 2010, the florida supreme court the second motion to cancel to jade winds' counsel or make any other attempt to before suarez, cortiĐas, and rothenberg, jj. judgment of foreclosure was entered in favor of citibank. it is time for this violation of [jade winds'] due process rights" and the order canceling sale was


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