FL 4DCA Reverses & Remands "Certificate of Title, Remands for an Evidentiary Hearing" REGNER v. AMTRUST


FL 4DCA Reverses & Remands “Certificate of Title, Remands for an Evidentiary Hearing” REGNER v. AMTRUST

FL 4DCA Reverses & Remands “Certificate of Title, Remands for an Evidentiary Hearing” REGNER v. AMTRUST


July Term 2011




No. 4D11-1281

September 28, 2011]


The defendants, whose home was sold at a foreclosure sale, appeal
the circuit court’s order denying their verified motion to vacate the
certificate of title issued after the sale. The court denied the motion even
though it recognized that the bank had not offered any evidence in
opposition to the motion. The defendants argue that the court erred in
denying their motion because the clerk of court issued the certificate of
title while their objections to the sale were pending and because the
court did not conduct an evidentiary hearing on their objections.
We agree with the defendants’ arguments a n d reverse.
Compare § 45.031(5), Fla. Stat. (2010) (“If no objections to the sale are
filed within 10 days after filing the certificate of sale, the clerk shall file a
certificate of title . . . .”), with § 45.031(8), Fla. Stat. (2010) (“If timely
objections to the bid are served, the objections shall be heard by the
court.”); see also Opportunity Funding I, LLC v. Otetchestvennyi, 909 So.
2d 361, 362 (Fla. 4th DCA 2005) (“The Clerk of the Court lacks authority
to issue a certificate of title . . . when an objection to a foreclosure sale is
timely filed.”). “For the court to ‘hear’ objections, it must provide both
notice and an opportunity for any interested party to address those
objections.” U.S. Bank Nat’l Ass’n v. Bjeljac, 43 So. 3d 851, 853 (Fla. 5th
DCA 2010) (citations omitted). Further, “‘it is reversible error for a trial
court to deny a party an evidentiary hearing to which [the party] is
entitled.’” Avi-Isaac v. Wells Fargo Bank, N.A., 59 So. 3d 174, 177 (Fla.
2d DCA 2011) (quoting Sperdute v. Household Realty Corp., 585 So. 2d
1168, 1169 (Fla. 4th DCA 1991)).

We remand for an evidentiary hearing on the defendants’ claims that:
(1) they did not receive notice of the sale; (2) the bank breached the
parties’ settlement agreement by wrongfully rejecting the defendants’
final redemption payment; a n d (3) the bank’s purchase price was
inadequate. See Bennett v. Ward, 667 So. 2d 378, 382 (Fla. 1st DCA
1995) (“Th e failure to give adequate notice of a judicial sale may
effectively deprive the mortgagor of the right to redeem the property.”);
Indian River Farms v. YBF Partners, 777 So. 2d 1096, 1098-99 (Fla. 4th
DCA 2001) (remanding for evidentiary hearing on whether mortgagor’s
assignee timely exercised its right of redemption before the issuance of
the certificate of title); Blue Star Invs., Inc. v. Johnson, 801 So. 2d 218,
219 (Fla. 4th DCA 2001) (“[T]o vacate a foreclosure sale, the trial court
must find (1) that the foreclosure sale bid was grossly or startlingly
inadequate; and (2) that the inadequacy of the bid resulted from some
mistake, fraud or other irregularity in the sale.”) (citations and internal
quotations omitted).

On remand, the defendants bear the burden to establish their claims.
See Richardson v. Chase Manhattan Bank, 941 So. 2d 435, 437 (Fla. 3d
DCA 2006) (“On remand [the mortgagor] bears the burden to establish at
the evidentiary hearing that she did not receive notice of the rescheduled
sale and must also show what harm, if any, she suffered by reason of not
being notified of the sale.”). The defendants shall be entitled to testify at
the evidentiary hearing if they so request. See Sperdute, 585 So. 2d at
1169 (“Neither the submission of affidavits nor argument of counsel is
sufficient to constitute an evidentiary hearing. Since the purpose of an
evidentiary hearing is to allow a party to ‘have a fair opportunity to
contest’ the factual issues, this purpose is not effectuated if a party is not
allowed to testify.”) (citation omitted).

Reversed and remanded.

WARNER and POLEN, JJ., concur.
* * *
Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No.

Charles D. Franken of Charles D. Franken, P.A., Plantation, for

Vivian Lasaga of Spear and Hoffman, P.A., Miami, for appellee.

Not final until disposition of timely filed motion for rehearing.

[ipaper docId=66893544 access_key=key-kt8p1x6z49wlga8ku29 height=600 width=600 /]


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