Indymac Fed. Bank FSB v. Hagan

• Decision Date: 19 December 2012
• Docket Number: No. 12–1153.,12–1153.
• Citation: 104 So.3d 1232
• Parties: INDYMAC FEDERAL BANK FSB, Appellant, v. Kevin HAGAN, et al., Appellees.
• Court: Florida District Court of Appeals

104 So.3d 1232

INDYMAC FEDERAL BANK FSB, Appellant,

v.Kevin HAGAN, et al., Appellees.

No. 12–1153.

District Court of Appeal of Florida, Third District.

Dec. 19, 2012.

Akerman Senterfitt, and Nancy M. Wallace, Tallahassee, William P. Heller, Ft.Lauderdale, Nathaniel D. Callahan, Ft.Lauderdale, and Marc Jonathan Gottlieb, Fort Lauderdale, for appellant.

Robert Flavell, P.A., for appellees.

Before ROTHENBERG and LOGUE, JJ., and SCHWARTZ, Senior Judge.

ROTHENBERG, J.

INTRODUCTION

This is a foreclosure case. The lender, IndyMac Federal Bank FSB (“the Bank”), foreclosed on and subsequently purchased Kevin J. Hagan and Monica P. Hagan's (collectively, “the Hagans”) property at a foreclosure sale. After the clerk issued a certificate of sale, the Hagans filed a motion which they characterize as both an objection to the foreclosure sale and motion to vacate the final judgment of foreclosure. Over the Bank's objection, the trial court set the motion for an evidentiary hearing. Before the evidentiary hearing was conducted, however, the Bank filed a motion for the issuance of a certificate of title to the subject property. The trial court entered an interlocutory order—from which this appeal is taken—declining to issue the certificate of title prior to resolving the Hagans' objection to the foreclosure sale and motion to vacate the final judgment. We have jurisdiction. SeeFla. R.App. P. 9.130(a)(3)(C)(ii). Because the (1) objection to the foreclosure sale was facially deficient and (2) the motion to vacate the final judgment was time-barred, there was no valid basis for declining to issue the certificate of title sought by the Bank. We therefore reverse and remand for the immediate issuance of the certificate of title.

FACTUAL AND PROCEDURAL POSTURE

On May 11, 2006, the Bank issued the Hagans a $484,000 loan that was secured by a note and mortgage on their property. On October 1, 2008, the Hagans discontinued remitting their monthly mortgage payments and thereby defaulted on the terms of their loan. As a result, the Bank filed this action on February 3, 2009, seeking to foreclose on the Hagans' property.

On May 26, 2009, the Bank filed a motion for summary judgment. On September 30, 2009, after conducting a hearing, the trial court entered final judgment of foreclosure in favor of the Bank. In the final judgment, the trial court ordered that the Hagans' property be publicly auctioned and that the subsequent purchaser must file a certificate of title prior to taking possession of the property. The Hagans did not file a motion for rehearing or appeal the final judgment.

On February 23, 2011, the Bank purchased the subject property at the foreclosure sale. The clerk thereafter issued the Bank a certificate of sale on March 2, 2011. Two days later, on March 4, 2011, the Hagans filed their objection to the foreclosure sale and motion to vacate the final judgment. In the motion, the Hagans did not challenge any conduct that occurred at, or which related to, the foreclosure sale. Rather, the Hagans alleged that the judgment of foreclosure must be set aside because the Bank committed a fraud on the trial court in two respects.

First, the Hagans noted that the Bank had filed the Hagans' original note and mortgage on the day of the summary judgment hearing. Thus, the Hagans argued that those items of evidence were untimely under Florida Rule of Civil Procedure 1.510(c), and that the Bank committed a fraud on the trial court by relying on them without alerting the trial court to their untimeliness.

Second, the Hagans argued that the Bank had attached a fraudulent affidavit of indebtedness, executed by Ms. Ericka Johnson–Seck, to its summary judgment motion. In the affidavit, Ms. Johnson–Seck stated that she was the Bank's custodian of records; alleged that the Bank was the holder of the Hagans' note and mortgage; confirmed that the Hagans were in default; and specified the amounts due and owing. The Hagans contended that this information was fraudulent because at the time Ms. Johnson–Seck executed her affidavit, the Bank was no longer the holder of the Hagans' note and mortgage or Ms. Johnson–Seck's employer. Instead, the Hagans alleged that, by that time, OneWest Bank, FSB (“the Successor Bank”), which acquired substantially all of the Bank's assets during this litigation, was the holder of the Hagans' note and mortgage and Ms. Johnson–Seck's employer. Thus, the Hagans argued that (1) the Bank committed a fraud on the trial court by presenting false information in support of its foreclosure claim, and (2) Ms. Johnson–Seck executed her affidavit without proper notarization; without having any personal knowledge of the Hagans' note and mortgage; and, given the obvious informational errors, without even reviewing the content of the affidavit.

In further support of their fraud allegations, the Hagans noted that on December 29, 2010, after the final judgment was entered, but prior to the foreclosure sale, the Bank filed an affidavit executed by Ms. Sonja Stevens, the custodian of records for the Successor Bank. The notice of filing stated that Ms. Stevens's affidavit was intended to “correct the form” of Ms. Johnson–Seck's previously filed affidavit “without altering [its] substantive content.” In the newly-filed affidavit, however, there was no explanation of the errors in the “form” of Ms. Johnson–Seck's affidavit that warranted correction. Ms. Stevens merely stated that the Successor Bank was the then-current holder of the Hagans' note and mortgage, and confirmed that all of the information in Ms. Johnson–Seck's affidavit pertaining to the Hagans' default, including the amounts due and owing, was correct. Thus, the Hagans advanced the inference that the “form” intended to be corrected by Ms. Stevens's affidavit was the fraud allegedly committed by the Bank in proffering Ms. Johnson–Seck's affidavit.

The trial court conducted a hearing on the Hagans' objection to sale and motion to vacate, but deferred ruling pending an evidentiary hearing at which Ms. Johnson–Seck was to appear personally. The Bank filed a motion for reconsideration, arguing against further delay on the basis that the objection to the foreclosure sale was facially deficient and that the relief sought was time-barred. That motion was denied.

Thereafter, on February 28, 2010, the Bank filed a motion for the issuance of the certificate of title. The trial court denied the motion, indicating that it would not issue the certificate of title prior to conducting an evidentiary hearing and ruling on the Hagans' objection to the foreclosure sale and motion to vacate the final judgment. The evidentiary hearing occurred on April 11, 2012, but Ms. Johnson–Seck did not appear. Before the trial court ruled on the Hagans' objection to the foreclosure sale and motion to vacate the final judgment, the Bank filed this appeal from the denial of its motion for the issuance of the certificate of title.

DISCUSSION

On appeal, the Bank contends that only a facially cognizable objection to a foreclosure sale warrants a delay in the issuance of a certificate of title to resolve the objection. On this reasoning, the Bank argues that the Hagans' motion, although partially titled “objection to the foreclosure sale,” was facially deficient because it did not challenge any conduct that occurred at, or which related to, the foreclosure sale. According to the Bank, when the substance, rather than the title, is considered, the Hagans' motion is merely a time-barred motion to vacate the final judgment. Thus, the Bank contends that the trial court erred in delaying the issuance of the certificate of title pending the resolution of the Hagans' facially deficient objection to the foreclosure sale and time-barred motion to vacate. We agree.

The procedures governing judicial sales are outlined in section 45.031, Florida Statutes (2012). With respect to the issuance of a certificate of title, section 45.031(5) provides, in pertinent part, that “[i]f no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title and serve a copy of it on each party ....” (emphasis added). The “shall” language confirms that the instruction is mandatory, creating “an...