Tuesday, October 6, 2009

Some sanity in foreclosures

We have often been before judges who have "compassion" for "the little guy" when foreclosures take place; often these become situations where "helping " one person burdens others who actually are responsible and pay. Here's what the Third District Court of Appeal had to say about one trial judge who wanted to show "compassion"...emphasis is mine...

Third District Court of Appeal
State of Florida, July Term, A.D. 2009
Opinion filed September 30, 2009.
Not final until disposition of timely filed motion for rehearing.
No. 3D09-2405
Lower Tribunal No. 08-7159
Republic Federal Bank, N.A.,
Joseph M. Doyle and Blanca Alicia Doyle,
On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Valerie Manno Schurr, Judge.
Carlton Fields and Matthew J. Conigliaro (St. Petersburg) and Charles M.
Rosenberg, for petitioner.
Barry L. Simons, for respondents.
Before GERSTEN and LAGOA, JJ., and SCHWARTZ, Senior Judge.
SCHWARTZ, Senior Judge.

We treat the petition for writ of mandamus as one for certiorari and deny the

Following a November 4, 2008 final judgment of foreclosure, and after
several delays – caused in part by the filing and the dismissal of a frivolous
bankruptcy petition on the eve of a previous sale and a foul-up or two in the clerk’s
office – the trial court on July 29, 2009, entered an order fixing August 27, 2009,
as the date of the sale. On motion of the defendants, however, apparently on the
basis that in the case, like this one, of the foreclosure of a residence she routinely
grants continuances of the sale rather than see “anybody lose their house,” the trial
judge granted a continuance until October 1, 2009. fn.1

We deny the petition.

Although granting continuances and postponements are, generally speaking,
within the discretion of the trial court, the “ground” of benevolence and

fn. 1 The court’s remarks on the issue included the following:
I was trying to make everybody happy.
. . . .
We have so many foreclosures here and I give
continuances on these sales. I just do.
. . . .
Unless it is so abundantly clear to me that it is just an
abuse of the process, I give extensions on these because I
don’t want anybody to lose their house. If there is any
chance that he can do this deal, get the money and try to
save this home, you know, people are having a hard time
now. They are having a difficult time. Everybody
knows it. Businesses are failing. People are losing
money in the stock market. You know, unemployment is
high. It’s just everybody knows that we are in a bad time
right now and I hate to see anybody lose their home.

compassion fn.2 (or the claim asserted below that the defendants might be able to
arrange a sale of the property 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). See also Kosoy Kendall Assocs., LLC v. Los Latinos Restaurant,
Inc., 10 So. 3d 1168 (Fla. 3d DCA 2009); Comcoa, Inc. v. Coe, 587 So. 2d 474
(Fla. 3d DCA 1991).

The continuance thus constitutes an abuse of discretion in the most basic
sense of that term. As the Court stated in Canakaris v. Canakaris, 382 So. 2d 1197,
1203 (Fla. 1980):
The trial courts' discretionary power was never intended
to be exercised in accordance with whim or caprice of the
judge nor in an inconsistent manner. Judges dealing with
cases essentially alike should reach the same result.
Different results reached from substantially the same
facts comport with neither logic nor reasonableness. In
this regard, we note the cautionary words of Justice
Cardozo concerning the discretionary power of judges:
The judge, even when he is free, is still not
wholly free. He is not to innovate at
pleasure. He is not a knight-errant roaming
at will in pursuit of his own ideal of beauty

fn. 2 See also the term referred to in Cooper v. Brickell Bayview Real Estate, Inc. 711
So. 2d 258, 258 n.1 (Fla. 3d DCA 1998).

or of goodness. He is to draw his inspiration
from consecrated principles. He is not to
yield to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized
by analogy, disciplined by system, and
subordinated to “the primordial necessity of
order in the social life.” Wide enough in all
conscience is the field of discretion that
B. Cardozo, The Nature of the Judicial
Process 141 (1921).

See Storm v. Allied Universal Corp., 842 So. 2d 245, 246 n.2 (Fla. 3d DCA 2003)
(trial judge refused to preclude plaintiff, who misled and deceived the defendants,
the jury and the trial court, from further litigation “to give the Plaintiff the break of
his life”); Arango v. Arango, 450 So. 2d 583 (Fla. 3d DCA 1984) (trial judge
reduced attorney’s fee award to spouse of attorney on ground of “professional
courtesy”). See also Flagler v. Flagler, 94 So. 2d 592, 594 (Fla. 1957) (“[C]ourts
of equity have [no] right or power under the law of Florida to issue such order it
considers to be in the best interest of ‘social justice’ at the particular moment
without regard to established law.”); Nordberg v. Green, 638 So. 2d 91 (Fla. 3d
DCA 1994) (trial court may not decline to follow controlling law on ground it
considers its application "inequitable" in particular case), review denied, 649 So.
2d 233 (Fla. 1994).

Although we thus thoroughly disapprove of the order, in view of the fact
that the postponed sale is due to take place within a few days of this decision, no
useful purpose will be served by formally quashing the order or ordering the sale to
take place on an earlier date with all the procedural complications which would
then result. For that reason alone, relief will be denied. We do emphasize that
there are to be no further postponements of the sale.

Petition denied.

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