Avi-Isaac v. Wells Fargo Bank, N.A.
59 So. 3d 174
Fla. Dist. Ct. App.2011Background
- Wells Fargo sought to vacate a foreclosure sale after a sale was conducted for Byrd, with Avi-Isaac purchasing the property for $2,000 while the assessed value was $100,600.
- A final judgment had determined Wells Fargo owed $192,664.97 and a foreclosure sale was scheduled for September 9, 2008.
- Wells Fargo faxed a request to cancel the sale to the court during settlement negotiations, but the sale occurred and Wells Fargo was not present.
- On September 15, 2008 Wells Fargo served an objection to the sale to Avi-Isaac, which was not docketed until December 2, 2008, contributing to a certificate of title being issued to Avi-Isaac.
- A hearing on Wells Fargo’s objection was set for December 1, 2008 but was canceled; Wells Fargo later filed a motion to vacate under Florida Rule of Civil Procedure 1.540(b) and Arlt v. Buchanan principles.
- The trial court granted the motion to vacate, relying on a recently filed affidavit by Daid A. Roger alleging mailing/cancellation actions, without an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an evidentiary hearing was required before granting the motion to vacate | Wells Fargo contends an evidentiary hearing was required to test the affidavit evidence and notice issues. | Avi-Isaac contends the court could rely on affidavits and the record to decide. | Reversed; remanded for an evidentiary hearing. |
| Whether Wells Fargo was afforded proper notice and opportunity to be heard on the motion to vacate | Wells Fargo asserts it timely filed an objection and was entitled to notice and a hearing. | Avi-Isaac argues there was no timely docketing or proper notice affecting due process. | Reversed; remanded for an evidentiary hearing to determine notice and opportunity to be heard. |
Key Cases Cited
- Arlt v. Buchanan, 190 So.2d 575 (Fla.1966) (equity may set aside a sale for irregularity or injustice)
- Abercrombie, 713 So.2d 1017 (Fla.2d DCA 1998) (economic relief and sale inadequacy considerations in foreclosure)
- Sperdute v. Household Realty Corp., 585 So.2d 1168 (Fla.4th DCA 1991) (reversing denial of evidentiary hearing and emphasizing right to testify)
- Monsour v. Balk, 705 So.2d 968 (Fla.2d DCA 1998) (need for evidentiary hearing to resolve insufficiency of service or related facts)
- Estate of Willis v. Gaffney, 677 So.2d 949 (Fla.2d DCA 1996) (remand for evidentiary hearing to address credibility of affidavits)
- Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So.3d 1271 (Fla.2d DCA 2009) (purchaser entitled to notice and opportunity to be heard on motion to vacate)
- Palacios v. Fla. Funding Trust, 32 So.3d 167 (Fla.2d DCA 2010) (standard for reviewing motion to vacate under 1.540 in foreclosure context)