Eyаl Avi-Isaac appeals the trial court’s order that grants Wells Fargo’s “Plaintiff’s Motion to Vacate Certificates of Title, Disbursements, and Sale, Set Asidé Foreclosure Sale, and Return Third Party Funds and Memorandum of Law in Support Thereof’ (motion to vacate). Because the trial court did not conduct an evidentiary hearing on Wells Fargo’s motion to vacate, we reverse and remand for further proceedings.
A final summary judgment of foreclosure determined that Wells Fargo, the mortgagee, was owed $192,664.97. The foreclosure sale was scheduled for September 9, 2008. Wells Fargo сontends that during efforts to resolve the dispute with Mr. Byrd, the mortgagor, it faxed a request to cancel the sale to the court. The sale ocсurred despite the request. Wells Fargo was not present at the foreclosure sale, believing it had been canceled. Avi-Isaac purсhased the property at the foreclosure sale for $2000. It is undisputed that at the time of the foreclosure sale, the assessed value оf the property was $100,600.
On September 15, 2008, Wells Fargo served on Avi-Isaac “Plaintiffs Objection to Sale and Motion to Return Third Party Funds, Vacate Certificаte of Sale and Set Aside Foreclosure Sale” (the objection). The objection was not docketed, however, until December 2, 2008. Wells Fаrgo contends that the document was sent directly to the presiding judge’s chambers and that it was riot docketed in accordance with Florida Rulе of Civil Procedure 1.080(e). Because the clerk of court did not realize that there was a pending objection, it is
A hearing on Wells Fargo’s objection had been set for December 1, 2008, but was canceled. Wells Fargo alleges that it had been in contact with Avi-Isaac to nеgotiate a settlement and set aside the sale. Wells Fargo asserts that the negotiations came to a standstill, resulting in Wells Fargo filing its motion to vаcate. The motion to vacate cites to Florida Rule of Civil Procedure 1.540(b) and addresses the provision which allows for relief from a proceeding based on “mistake, inadvertence, surprise, or excusable neglect.” Fla. R. Civ. P. 1.540(b). The motion also relies upon Arlt v. Buchanan,
On August 18, 2009, Wells Fargo served a copy of the affidavit of Daid A. Roger on Avi-Isaac’s counsel. Ms. Roger indicated in hеr affidavit that she faxed the request to cancel the foreclosure sale to the clerk of court. Attached to the affidavit is a copy of the fax transaction report. Roger also indicated that she supervised the dispatch by overnight delivery of Wells Fargo’s objectiоn to the sale. Attached to the affidavit are copies of a UPS proof of dispatch on September 16, 2008, and a copy of a UPS рroof of delivery on September 17, 2008.
A hearing was held on the motion to vacate on August 21, 2009. At the hearing, Avi-Isaac argued that a certificatе of title had been issued, that Wells Fargo was proceeding under rule 1.540(b), and that he was entitled to an evidentiary hearing, but that “all we have had is an аffidavit filed at the last minute.” He argued that there had “been no testimony or no opportunity to cross-examine, particularly on the UPS mailing.” Avi-Isaаc stated that no notice of cancellation of sale was filed with the clerk and that a Sarasota County administrative order required that the circuit judge order the cancellation of the sale. He further asserted that he could not file a counter-affidavit to Roger’s affidavit saying that the notice was faxed when the court had no record of it. Avi-Isaac argued that Wells Fargo’s counsel was a mortgage foreclosure plaintiffs firm and should have known how to cancel a sale and to follow up to check that it was done.
The trial court stated at thе hearing that the problem with the foreclosure sale was not the mistake of the law firm but the mistake of the court and characterized it as an inherently defective sale. The trial court granted the motion to vacate and found that there was notice “given to the Clerk that somehоw or other didn’t get to the foreclosure clerk.” The trial court further found that Wells Fargo timely filed its objection to the sale with the court but that the objection did not get to the clerk in time. In its written order, the court determined that Wells Fargo met its burden under rule 1.540 and the two-pronged test set out in the Arlt line of cases.
Our standard of review on the trial court’s determination of whether Wells Fargo made the necessary showing to set aside the foreclosure sale is for a
In Monsour v. Balk,
Here, the trial court relied on Roger’s recently filed affidavit to determine that the foreclоsure sale was inherently defective. Avi-Isaac objected to the trial court not conducting an evidentiary hearing and argued that he cоuld not cross-examine the representative from the law firm regarding the matters asserted in the affidavit. Although the. trial court conducted a heаring on the motion,. Avi-Isaac did not have a meaningful opportunity to be heard when he was denied an evidentia-ry hearing where he could contest the facts alleged in . the affidavit. Therefore, we reverse the trial court’s order and remand for an evidentiary hearing on Wells Fargo’s motion to vacate.
Reversed and remanded.