DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
MARIE R. ALEXANDRE,
SCRIBNER VILLAGE HOMEOWNERS ASSOCIATION, INC., UNKNOWN
SPOUSE OF MARIE R. ALEXANDRE, UNKNOWN TENANT IN
POSSESSION #1 and UNKNOWN TENANT IN POSSESSION #2,
[March 30, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard H. Harrison, Senior Judge; L.T. Case No.
James Jean-Francois of Law Offices of James Jean-Francois, P.A.,
Hollywood, for appellant.
No appearance for appellee.
Marie Alexandre appeals the order denying her motion to stay the
clerk’s issuance of a writ of possession and/or to set aside a foreclosure
sale following the entry of final judgment in a foreclosure action. We
Scribner Village Homeowners Association (the “HOA”) obtained a final
judgment of foreclosure against Appellant on its lien for unpaid
assessments. The judgment set Appellant’s property for a public sale.
Before the sale was set to occur, Appellant filed a suggestion of bankruptcy
in the circuit court reflecting that Appellant filed a petition for Chapter 11
bankruptcy in the federal bankruptcy court. The suggestion stated that
by virtue of her petition, “this action has been stayed by the operation of
11 U.S.C. Section 362.” Despite Appellant’s filing, the sale proceeded and
the clerk of court issued a certificate of sale to HOA as the highest bidder
as well as a certificate of title. Following the HOA’s request for a writ of
possession, Appellant filed a motion asking the court to stay any issuance
of a writ of possession and set aside the final judgment of foreclosure and
certificate of title. The trial court denied Appellant’s motion. This appeal
“The filing of a bankruptcy petition automatically stays the
commencement or continuation of an action against the debtor’s
property.” In re Clarke, 373 B.R. 769, 771 (Bankr. S.D. Fla. 2006) (citing
11 U.S.C. § 362(a)). Accordingly, it is error for a court to enforce a
judgment of foreclosure on property owned by the debtor when an
automatic stay is in place. Heritage Family Pub, Inc. v. First Fed. Sav. and
Loan Ass’n of Clearwater, 315 So. 2d 558, 559 (Fla. 2d DCA 1975) (holding
that trial court erred in denying defendant’s motion to vacate foreclosure
sale and cancel certificate of sale when sale was conducted after the
defendant filed a petition for bankruptcy thus creating an automatic stay
prior to the sale). As Appellant filed a petition for bankruptcy before the
foreclosure sale, the sale should not have proceeded until the stay was
lifted. Id.; 11 U.S.C. § 362(a). Accordingly, the trial court erred in denying
Appellant’s motion to set aside the sale and everything that flowed from it.
Reversed and remanded.
MAY and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.