APPEAL CASE NO.: 4D

Transcription

1 E-Copy Received Nov 13, :06 AM IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT STATE OF FLORIDA APPEAL CASE NO.: 4D LOWER TRIBUNAL CASE NO.: CA XXXX MB THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK AS TRUSTEE FOR THE LUMINENT MORTGAGE TRUST MORTGAGE PASS THROUGH CERTIFICATES, SERIES , Appellant, v. DEBORAH COPPOLA AND PETER COPPOLA a/k/a PETER J. COPPOLA, et al. Appellee. Appeal from the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, Florida APPELLANT'S INITIAL BRIEF BLANK ROME, LLP Paul J. Sodhi Florida Bar No Joseph F. Poklemba Florida Bar No David S. Ehrlich Florida Bar No ! v, I

2 TABLE OF CONTENTS PREFACE... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF ARGlTMENT... 4 STANDARD OF REVIEW... 6 ARGUMENT... 7 I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION TO SET ASIDE SALE DUE TO UNILATERAL MISTAKE BY APPELLANT'S COUNSEL... 7 II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION TO SET ASIDE SALE DUE TO INADEQUACY OF CONSIDERATION CONCLUSION CERTIFICATE AS TO COMPUTER GENERATED FONT /S v.I

3 TABLE OF AUTHORITIES CASES Page(s) Aames Capital Corp. v. Boswell, 713 So. 2d 1074 (Fla. 5th DCA 1998) Alberts v. Federal Home Loan Mortgage Corp., 673 So. 2d 158 (Fla. 4th DCA 1996)... passim Arlt v. Buchanan, 190 So. 2d 575 (Fla. 1966)... 8 Arsali v. Chase Home Fin., LLC, 121 So. 3d passim Blue Star Investments, Inc. v. Johnson, 801 So. 2d 218 (Fla. 4th DCA 2001)... 4 Fernandez v. Suburban Coastal Corp., 489 So. 2d 70 (Fla. 4th DCA 1986)... 7, 9 HSBC Bank USA, Nat. Ass 'n v. Nixon, 117 So. 3d 430 (Fla. 4th DCA 2012) Josecite v. Wachovia Mortgage Corp., 97 So.3d 265 (Fla. 5th DCA 2012)... 6 Long Beach Mtg. Corp. v. Bebble, 985 So. 2d 611 (Fla. 4th DCA 2008)... passim Moody v. Glendale Federal Bank, 643 So.2d 1149 (Fla. 3d DCA 1994) Torres v. K-Site 500 Associates, 632 So. 2d 110 (Fla. 3d DCA 1994) Van Delinder v. Albion Realty & Mortgage, Inc., 287 So. 2d 352 (Fla. 3d DCA 1973)... 5,9, S/SOS34849v. 1 11

4 OTHER AUTHORITIES Florida Appellate Rule of Procedure 9.210(a) v.l III

5 PREFACE In this brief, Appellant, THE BANK OF NEW YORK MELLON, F/K/A, THE BANK OF NEW YORK AS TRUSTEE FOR THE LlJMINENT MORTGAGE TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES , will use the following shorthand references: "Appellant" shall refer to the Appellant, THE BANK OF NEW YORK MELLON, F/K/A, THE BANK OF NEW YORK AS TRUSTEE FOR THE LUMINENT MORTGAGE TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES "Appellee" shall refer to the Appellee, ECKSODUS 75, LLC. "App. [letter] [page number]" shall refer to Appellant's Appendix. "R. [page number] shall refer to the page number in the record on appeal / v.1

6 STATEMENT OF THE CASE AND FACTS Appellant, the Plaintiff in the underlying case, brings this appeal of the trial court's Order denying Plaintiff's Motion to Set Aside Foreclosure Sale and Certificate of Title. This is a mortgage foreclosure action. On April 25, 2013, following a non JUry trial, Appellant obtained a Final Judgment against all Defendants in the amount of $901, [R ]. The Final Judgment set the foreclosure sale to occur on May 29,2013. Id. On May 22,2013, Appellant filed a Motion to Cancel and Reschedule Foreclosure Sale ("the Motion to Cancel Sale"), in light of an internal independent review for foreclosure avoidance opportunities for the Defendants. [R ]. On May 28, 2013, the trial court denied the Motion to Cancel Sale. [R ]. At all times relevant, the Plaintiff was represented by the law firm of Johnson and Freedman, L.L.C. (hereinafter "foreclosure counsel") [i.e., R , ]. However, at the hearing on the Motion to Cancel Sale, the Plaintiff was represented by the Stewart Law Group, P.L. (hereinafter "local counsel") [R ]. Unfortunately, local counsel that attended the hearing on the Motion to Cancel Sale did not inform foreclosure counsel that the trial court denied the Motion to Cancel Sale. Consequently, foreclosure counsel erroneously believed that the trial court had granted the Motion to Cancel Sale. [R ]. Due to / v.l 2

7 the mistake in communications, foreclosure counsel did not ensure that a representative was present at the foreclosure sale to bid on behalf of the Plaintiff. The foreclosure sale commenced on May 29,2013 and the property was sold to Appellee, ECKSODUS 75, L.L.C. who had the highest bid of $100, [R ]. ECKSODUS 75, LLC's winning bid is 89% less than the final judgment. As a result of the miscommunication between local counsel and foreclosure counsel, foreclosure counsel did not learn that the sale was to proceed until it after the sale had taken place. [R ]. On June 5, 2013, Appellant filed a Motion to Set Aside the Foreclosure Sale and Certificate of Title (hereinafter "Motion to Set Aside") [R ] and affidavits in support of the Motion to Set Aside. [R ]. On July 10, 2013, the trial court entered an Order specially setting a hearing on the Motion to Set Aside Sale for August 2,2013. [R ]. The trial court Order specially setting the hearing does not notice the hearing as an evidentiary hearing. [R ]. On August 2, 2013, the trial court denied the Motion to Set Aside Sale. [R ]. THE REMAINDER OF THIS PAGE W AS LEFT BLANK INTENTIONALLY S/SOS34849v.1 3

8 SUMMARY OF ARGUMENT The trial court abused its discretion in denying Appellant's Motion to Set Aside Sale for several reasons. First, the mistakes and communications between the Stewart Law Group, P.L. and Johnson and Freedman, L.L.C. compelled an order setting aside the sale. The trial court, in denying the Motion to Set Aside penalized the Plaintiff for the mistakes of its attorneys. Second, the winning bid at the sale produced a grossly inadequate price for the subject property. The result is unconscionable and courts sitting in equity abhor forfeiture. In light of the record before it, the trial court abused its discretion in denying the Motion to Set Aside. The Supreme Court of Florida has held that a foreclosure sale may be vacated for "any or all" of the following grounds: 1) mistake; 2) inadequacy of consideration; or 3) inadvertence or surprise, among others. Arsali v. Chase Home Fin., LLC, 121 So. 3d 511, 515 (Fla. 2013) quoting Moran-Alleen Co. v. Brown, 123 So. 561, 561 (1929). It is not necessary to demonstrate both inadequacy of consideration and mistake. Arsali, 79 So. 3d 845, (receding from Blue Star Investments, Inc. v. Johnson, 801 So. 2d 218 (Fla. 4th DCA 2001). Even a unilateral mistake is legal1y sufficient to invoke the trial court's discretion to consider setting the sale aside. Long Beach Mtg. Corp. v. Bebble, 985 So. 2d 611 (Fla. 4th DCA 2008). In the present case, the trial court abused its discretion in denying the Motion to Set Aside because Appellant satisfied the requirements for several of these grounds / v.1 4

9 It is undisputed by all the parties that Plaintiff was not represented at the foreclosure sale due to miscommunication between foreclosure counsel and local counsel. [R ]. Miscommunication is a unilateral mistake by the Appellant that required the trial court to grant the Motion to Set Aside. See Long Beach Mtg. Corp. v. Bebble, 985 So. 2d 611 (Fla. 4th DCA 2008); See also generally, Arsali v. Chase Home Fin., LLC, 121 So. 3d 511 (Fla. 2013). The sufficiency of the "mistake" is shown, if "the owner became deprived of an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent him there for that purpose was not present." Van Delinder v. Albion Realty & Mortgage, Inc., 287 So. 2d 352, 353 (Fla. 3d DCA 1973). Next, the sale should have been set aside because the property was sold for a grossly inadequate price. Alberts v. Federal Home Loan Mortgage Corp., 673 So. 2d 158 (Fla. 4th DCA 1996). In Alberts, this Court upheld a trial court's order vacating the foreclosure sale where the property was sold for 10% of the final judgment. ld. The sale in the underlying case, which proceeded without Plaintiff's bid as a result of the mistake, produced a virtually identical ratio to Alberts f v. 1 5

10 STANDARD OF REVIEW "Trial courts' judgments pertaining to set asides of judicial foreclosure sales are now, as they always have been, subject to review by way of an abuse of discretion standard." Arsali v. Chase Home Fin. LLC, 121 So. 3d 511 (Fla. 2013); See also Josecite v. Wachovia Mortgage Corp., 97 So.3d 265 (Fla. 5th DCA 2012) / v.l 6

11 ARGUMENT I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION TO SET ASIDE SALE DUE TO UNILATERAL MISTAKE BY APPELLANT'S COUNSEL Appellant's failure to bid at the foreclosure sale was a result of miscommunication between its foreclosure counsel and local counsel, and as such constitutes a mistake sufficient to set the sale aside. The trial court's determination to deny the Motion to Cancel Sale in light of this mistake constituted an abuse of discretion. The Supreme Court of Florida has recently reiterated that "trial courts' use of their equity powers in resolving disputes pertaining to judicial foreclosure sale set aside actions is essential" Arsali v. Chase Home Fin., LLC, 121 So. 3d 511, 515 (Fla. 2013). A foreclosure sale may be vacated for "any or all" of the following grounds: 1) mistake; 2) inadequacy of consideration; or 3) inadvertence or surprise, among others. Id. at 515, quoting Moran-Aileen Co. v. Brown, 123 So. 561, 561 (1929). Further, "a mistake 'may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.'" Fernandez v. Suburban Coastal Corp., 489 So. 2d 70, 72 (Fla. 4th DCA 1986) (quoting Black's Law Dictionary, 903 (5th Ed. 1985). In considering whether to vacate a foreclosure sale due to a mistake, the Fourth District Court of Appeal has held that equity will act to prevent the wrong result, and relieve an innocent victim from the mistakes of its attorneys and agents. See Long Beach Mtge. Corp. v. Bebble, 985 So. 2d 611, 614 (Fla. 4th DCA 2008) S/SOS34849v. I 7

12 In Long Beach Mtge. Corp., Long Beach Mortgage Corp. ("Long Beach"), obtained a final judgment of foreclosure setting a foreclosure sale for May 22, 2007 at 10:00 a.m. Id. at 612. The sale took place as scheduled and the property was sold to a disinterested third party. Id. Long Beach moved to vacate the sale on the grounds of its inadvertence, mistake, or accident or that of its agents in failing to attend the sale. Id. The trial court denied Long Beach's motion to vacate the sale, and Long Beach appealed the denial of its motion. Id. at 613 On appeal, The Fourth District noted that Long Beach, in seeking to vacate the sale, presented a "scenario of miscommunications and mishaps." Id. at 612. Specifically, the Fourth District noted that Long Beach's law firm mistakenly believed the sale was scheduled for 11 :00 a.m., when it was actually scheduled for 10:00 a.m. Id. at 613. Long Beach's law firm was under the mistaken impression the sale was at 11 :00 a.m. since it was the "time for foreclosure sales in many locales, and [it] was unfamiliar with Martin County procedures." Id. The sale took place at 10:00 a.m., Long Beach did not bid, and subsequently moved to vacate the sale. Id. Accordingly, the issue for Fourth District was whether the mistakes that occurred in connection with the foreclosure sale were sufficient to set it aside. ld. at The Fourth District reversed the trial court ruling and vacated the 1 Long Beach Mtge. Corp., was decided prior to the recent Arsali v. Chase Home Fin., LLC, decision and applied the rule enunciated in Arlt v. Buchanan, 190 So. 2d 575 (Fla. 1966). Since inadequacy of price was conceded in Long Beach Mtge / v. l

13 foreclosure sale noting that "Long Beach was the innocent victim from the mistakes of its attorneys and agents." Id. at 614. In reaching its ruling, the Fourth District relied on its prior decisions III Fernandez v. Suburban Coastal Corp., 489 So. 2d 70 (Fla. 4th DCA 1986), and Alberts v. Federal Home Loan Mortgage Corp., 673 So. 2d 158 (Fla. 4th DCA 1996). In Fernandez, the Fourth District affirmed the lower court order vacating a foreclosure sale where the mortgagee's agent did not attend due to a calendaring error. See Fernandez, 489 So. 2d at 71. Alberts involved a mistake in communications between the lender's counsel and its agent bidding at the sale. Alberts, 673 So. 2d 159. As a result of the mistake, the lender, while appearing and bidding on the property, bid lower than instructed, and a third party purchased the property. Id. The lender moved to set aside the sale, the trial court granted the motion and the Fourth District affirmed. The Third District reached a similar result in Van Delinder v. Albion Realty & Mortgage, Inc., when it set aside a foreclosure sale due to mortgagee's attorney's failure to attend sale due to mistake. 287 So. 2d 352, 353 (Fla. 3d DCA 1974). In relying on these cases the Long Beach Mtge. Corp., court noted that the purpose of foreclosure sales is not to protect outrageous windfalls to buyers, and equity should act to prevent a wrong result and remedy cases of clear injustice. Corp., the decision remains precedent for its determination and discussion of what constitutes a mistake / v.1

14 Long Beach Mtge. Corp., 985 So. 2d at The Fourth District thus reversed the trial court order denying Long Beach's motion to vacate, and set the foreclosure sale aside due to the mistake in communications resulting in the failure to attend a sale. Id. at 615. The instant matter is analogous to the above cases in that the Appellant failed to participate in the foreclosure sale held on May 29, 2013 due to the mistake of Foreclosure Counsel and Local Counsel. [R. 96]. Prior to the instant sale going forward, Appellant filed a Motion to Cancel Foreclosure Sale. [R. 86]. The Motion to Cancel Foreclosure Sale was heard on May 28, 2013, one day prior to the sale. [R ]. Appellant's Local Counsel appeared at the May 28, 2013 hearing and the Motion to Cancel Sale was denied; however, Local Counsel failed to advise and communicate the denial to Foreclosure Counsel. [R. 106]. Had such communication occurred, Foreclosure Counsel would have bid at the sale. [R. 106]. Similar to Long Beach Mtge. Corp. and Van Delinder, Appellant's failure to bid on the property was due to miscommunication between its attorney's and agents. To let this foreclosure sale stand in light of such, would effectively punish Appellant, an innocent victim, for the mistakes of its attorneys and agents and protect an outrageous windfall to ECKSODUS 75, LLC. As this Court has previously recognized when vacating sales due to similar mistakes, such is not the ! v.1 10

15 purpose of the law, and equity must act to prevent the wrong result. See Long Beach Mtge. Corp. and, Alberts supra. Finally, this Court should vacate the trial court's Order because it results in an unconscionable forfeiture for the Appellant for the actions of their counsel. Equity abhors forfeiture, and a party entitled to forfeiture may be estopped from asserting that right, if the result would be unconscionable. Torres v. K-Site 500 Associates, 632 So. 2d 110 (Fla. 3d DCA 1994). In the present case, the Appellant was not represented at the sale due to miscommunication among its attorneys. To penalize Appellant for that miscommunication would result in a result that shocks the conscience ofthe court. II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION TO SET ASIDE SALE DUE TO INADEQUACY OF CONSIDERATION The Supreme Court of Florida has held that a foreclosure sale may be vacated for "any or all" of the following grounds: 1) mistake; 2) inadequacy of consideration; or 3) inadvertence or surprise, among others. Arsali v. Chase Home Fin., LLC, 121 So. 3d 511, 515 (Fla. 2013) quoting Moran-Aileen Co. v. Brown, 123 So. 561, 561 (1929). In the present case, the final judgment Plaintiff obtained against the defendants was $901, [R ]. Nonetheless, the winning bid at the foreclosure sale was $100, [R ], or 89% less than the judgment. Gross inadequacy of sales price is an equitable factor that can support vacating a foreclosure sale for the sake of equity / v.l 11 See, e.g., Arsali (gross

16 inadequacy of price is not an indispensible e1ement to vacate a sale but it is one of several equitable factors the Court may consider). In Arsali, the Supreme Court found that a foreclosure sale may be vacated if a party can "make a proper showing" of "one or more adequate equitable factors." See Arsali 121 So. 3d. at 518. In the present case, Appellee make a proper showing of both mistake but also by gross inadequacy of consideration. In Alberts v. Federal Home Loan Mortgage Corp., 673 So. 2d 158, this Court affirmed a trial court's order vacating a foreclosure sale when the sale price was inadequate under almost identical circumstances. 2 In Alberts, the sale price was $19, when the judgment was $118, This means the Court found that a foreclosure sale price that is 90% less than judgment is inadequate and compelled setting it aside. In the present case, the subject property sold for 890/0 less than the judgment, virtually identical to the ratio this Court affirmed as inadequate in Alberts. Some Courts have evaluated the fair market or appraised value of a property when evaluating the sufficiency of consideration at a foreclosure sale. See, e.g., Alberts, 673 So. 2d 158 at 160. In Alberts, the Court found that the value of the property was $100, and invalidated the sale as insufficient where the bid was $19,000.00, or 19% of the value. In the present case, Appellant introduced an 2 The similarities between this case and Alberts do not end with the ratio of the sale price versus the judgment. Alberts is also instructive on the issues of mistake and inadvertence, which are explained in section I ofthe Initial Brief. Infra / v.1

17 appraisal of the property demonstrating the property value at $409, Using this as the guideline (as there was no competing value offered by Appellee), the sale was 25% of the appraised value. There are no published decisions from the District Courts of Appeal that have held that a foreclosure sale price of a property that was 25% of the value was sufficient. 3 Even using the Palm Beach County Property Appraiser'S valuation of $324,000.00, the sale price would still be 30% of the value of the property. Ultimately, the Alberts decision is the single most analogous case to the present one ever decided by District Court of Appeal in Florida. In contrast, the District Courts of Appeal level cases that held that sales prices were sufficient had ratios far more favorable than the present case. See, e.g. Moody v. Glendale Federal Bank, 643 So.2d 1149 (Fla. 3d DCA 1994)(sale price of 72% of the property value was sufficient); Aames Capital COJp. v. Boswell, 713 So. 2d 1074 (Fla. 5th DCA 1998)(sale price of 56% of the property value was sufficient). Ultimately, the subject property was sold for 89% less than the judgment. This Court affirmed a virtually identical result as in adequate in Alberts and the 3 Prior to the Supreme Court's decision in Arsali, there were numerous cases where the Courts upheld foreclosure sales despite insufficient sale prices because they erroneously required both insufficient sale price and mistake. For example, in HSBC Bank USA, Nat. Ass 'n v. Nixon, 117 So. 3d 430 (Fla. 4th DCA 2012), this Court found that a ratio between the final judgment and the sale price of.02% was inadequate but upheld the sale because the lack of mistake v. l

18 trial Court abused its discretion in denying the Motion to Set Aside Sale. To affirm the Court order to stand would irreparably prejudice the Appellant and allow a gross windfall for Appellee / v.1 14

19 CONCLUSION This Court should reverse the trial court's Order denying Appellant's Motion to Set Aside Sale and Order that the Sale and resulting Certificate of Title should be vacated. It is undisputed that the Sale proceeded due to mistakes and miscommunications amongst the attorneys representing Appellants. In numerous cases cited herein, this Court has found that mistakes and miscommunications amongst attorneys that lead to a Plaintiff being ineffectively represented at a foreclosure sale constitute grounds to vacate that sale. Additionally, the sale produced a resulted in the Plaintiff only receiving 11 % of the value of its judgment and 250/0 of the appraised value of the subject property. In Alberts, this Court invalidated a foreclosure sale where there were mistakes in communications amongst attorneys that lead to a virtually identical result as in the present case. Ultimately, the end result in this case is that the Appellant has been severely harmed for the mistakes and miscommunications amongst its attorneys. Equity abhors forfeiture, and the present case would produce a particularly egregious example. The appellant entrusted the foreclosure sale process to its attorneys and should not be penalized for their attorneys' mistakes resulting in a failure to ensure its representation at the sale. To allow the sale to stand would be to allow Appellant to only receive 11 % of its judgment based on no fault of its own. This would be an unconscionable result and this Court should find that the trial court, / v. J 15

20 sitting in equity, abused its discretion in its order denying the Motion to Set Aside Sale. Date: November 13,2013 Respectfully submitted, BLANK ROME, LLP Attorneys for Appellee 1200 N. Federal Highway Boca Raton, Florida Telephone: (561) Facsimile: (561) Paul J. Sodhi Florida Bar No David S. Ehrlich Florida Bar No Joseph F. Poklemba Florida Bar No.: CERTIFICATE AS TO COMPUTER GENERATED FONT I HEREBY CERTIFY that the font used in this computer-generated document is Times New Roman 14 point font, in compliance with Florida Appellate Rule of Procedure 9.210(a). ~~ Paul J. Sodhi v. \ 16

21 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was furnished via U.S. Mail and to the Attached Service List. BLANK ROME LLP 1200 N. Federal Highway, Suite 312 Boca Raton, FL Telephone: Facsimile: E-Service: BocaEService@BlankRome.com PAUL J. SODHI Florida Bar No.: PSodhi@BlankRome.com JOSEPH F. POKLEMBA Florida Bar No.: JPoklemba@BlankRome.com DAVID S. EHRLICH Florida Bar No.: DEhrlich@BlankRome.com v.l 17

22 CASE NO.: 4D Lower Tribunal Case No.: CA020707XXXXMB DIVISION: AW SERVICE LIST Cristina M. Pierson, Esquire UNITED STATES OF AMERICA, Hargrove Pierson & Brown P.A. DEPARTMENT OF THE TREASURY Counselfor Third Party Purchaser, INTERNAL REVENUE SERVICE Ecksodus 75, LLC c/o US Attorney's Office, R.A. 21 SE 51 Street, Suite NE 4th Street, 13' h Floor Boca Raton, FL Miami, FL Tel. No. (561) Fax. No. (561) eserve@hargrovelawgroup.com cmp@hargrovelawgroup.com Erza Scrivallich, Esquire REGIONS BANK Vilma J. Sneed, Esquire c/o Legal Department RCO Legal, P.S. Inc N. 6 th Avenue Counsel for Plaintiff Birmingham, AL Northridge Road, Suite 1100 MIS 27 Sandy Springs, Georgia Tel. No. (770) flfcservice{ci{rcolegal.com ezscrivanich((i)rcolegal.com vj sneed@rcolegal.com DEBORAH COPPOLA 2214 NW 60 th Street Boca Raton, FL PETER COPPOLA 2214 NW 60 th Street Boca Raton, FL WILLOW GREENS HOMEOWNERS ASSOCIATION, INC. Danielle Riggin, Esquire BACKER LAW FIRM, P.A. 400 South Dixie Highway, Suite 402 Boca Raton, FL (561) Voice Danielle@BackerLawFirm.com KBeFileca>BackerLawFirm.com v.1