DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FIRSTBANK PUERTO RICO, d/b/a FIRSTBANK FLORIDA,
Petitioner,
v.
ALEXANDER OTHON and SARA OTHON,
Respondents.
No. 4D15-583
[April 22, 2015]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No.
CACE 14-14239.
Aliette D. Rodz, Stephen T. Maher and Alfredo L. Gonzalez, Jr. of Shutts
& Bowen LLP, Miami, for petitioners.
Alexander Othon and Sara Othon, Pembroke Pines, respondents.
PER CURIAM.
The day before the scheduled sale of respondents’ property pursuant to
petitioner’s final judgment of foreclosure, respondents moved to cancel the
sale based upon their entering into a listing contract to sell the property
and the wife’s poor health. Over the objection of the petitioner bank, the
court cancelled the sale and reset it ninety days later. The bank brought
this petition for writ of certiorari, claiming that the court departed from
the essential requirements of law in cancelling the sale. We agree.
We adopt the reasoning of Republic Federal Bank, N.A. v. Doyle, 19 So.
3d 1053 (Fla. 3d DCA 2009), where the trial court also granted a
continuance of a foreclosure sale based upon compassion for the
mortgagor. In concluding that this was an abuse of discretion the court
said:
Although granting continuances and postponements are,
generally speaking, within the discretion of the trial court, the
“ground” of benevolence and compassion (or the claim
asserted below that the defendants might be able to arrange
for payment of the debt during the extended period until the
sale) does not constitute a lawful, cognizable basis for granting
relief to one side to the detriment of the other, and thus cannot
support the order below: no judicial action of any kind can
rest on such a foundation. This is particularly true here
because the order contravenes the terms of the statute that a
sale is to be conducted “not less than 20 days or more than
35 days after the date” of the order or judgment. §
45.031(1)(a), Fla. Stat. (2008).
Id. at 1054 (footnote omitted.)
Similarly, neither the fact that the respondents in this case listed their
property in hopes of obtaining a short sale nor the fact that the wife had
medical problems is a ground to cancel the sale. The trial court
contravened the statutory direction.
This case is also like Doyle in that the rescheduled sale has been set,
and granting this writ may actually delay it further. Therefore, although
we conclude that the trial court departed from the essential requirements
of law, we deny the writ solely to prevent further delay of the sale. We
direct that the sale shall proceed on the assigned date, and no further
continuances or cancellations shall occur without the express consent of
the petitioner.
WARNER, MAY and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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