Florida/Georgia Personal Injury & Workers Compensation

...Nester and his wife purchased the property at the foreclosure sale for an amount that will not provide sufficient funds to satisfy Sterling's lien. To the extent that the trial court ruled it had no jurisdiction to set aside the foreclosure judgment once the sale occurred based upon its interpretation of section 702.07, Florida Statutes (2005), the trial court erred....

...xplanation and directing the clerk to issue a certificate of title to Mr. Nester. If Mr. and Mrs. Meyers or any of the other defendants objected to this outcome, it is not apparent from the appendix and they have not participated in this appeal. II. SECTION 702.07 DID NOT DEPRIVE THE CIRCUIT COURT OF JURISDICTION TO CONSIDER THE MOTION FOR RELIEF FROM JUDGMENT Without a transcript or a more detailed order, it is difficult to determine why the circuit court denied the motion for relief from judgment. However, Mr. Nester's written memorandum argued that the court had no jurisdiction to rule upon the motion in light of section 702.07....

...d its ruling on this argument. Despite a 1960 decision from the Third District supporting Mr. Nester's argument, see Holiday, Inc. v. Glaser, 121 So.2d 677 (Fla. 3d DCA 1960), we conclude that the trial court had jurisdiction to rule on this motion. Section 702.07 states: The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale...

...eking to set it aside. The court thus primarily held that it could not "review a final decree not appealed" in "proceedings to review a subsequent order." Id. at 678. [7] However, the court then acknowledged the plaintiff's argument that pursuant to section 702.07 the chancellor "lost the power" to set aside the decree once the sale occurred....

...If the latter part of Holiday acts as a holding in that case—an assumption we are not prepared to readily accept—we are not convinced by the analysis. Prior to the Third District's opinion in Holiday, the Florida Supreme Court had specifically cited section 702.07 while recognizing the circuit court's ability to set aside a foreclosure judgment after sale. See Taylor v. Day, 102 Fla. 1006, 136 So. 701 (1931); see also Maule Indus., Inc. v. Seminole Rock & Sand Co., 91 So.2d 307 (Fla.1956). The Florida Supreme Court has thus concluded that section 702.07 does not deprive a court of jurisdiction to set aside a foreclosure judgment once a foreclosure sale occurs....

...The day before the scheduled sale, the defendant sought without success to enjoin the sale. The sale proceeded, and the plaintiff purchased the property. The sale was confirmed by decree. Four months later the defendant sought to vacate the foreclosure judgment and sale. The supreme court quoted the text that is now section 702.07 and stated: If Taylor by his petition to enjoin, or by other formal procedure, presented to the court before the foreclosure sale the fact as to the decree being in the form not requiring the complainant Day to convey a good title to s...

...enied, and a certificate of sale issued. Thereafter, the mortgagor filed a motion for rehearing, which the circuit court granted. As a result, the circuit court set aside the foreclosure sale. The supreme court reversed, but rejected the notion that section 702.07 deprived the circuit court of jurisdiction to hear the motion for rehearing: Section 702.07 stipulates that circuit courts shall have jurisdiction to vacate and set aside decrees of foreclosure at any time before the sale has actually been made....

...If, as in the present case, objections are filed but overruled and the certificate of title then issued, petitioner contends that since the chapter does not provide for a rehearing none may be had, for the reason that the circuit court had thereupon lost jurisdiction of the matter. He alleges that the provision of Section 702.07 supports this contention....

...We cannot agree to this contention. *665 It is our opinion that the circuit court had the jurisdiction to entertain the rehearing after issuance of the certificate of title. Maule Indus., 91 So.2d at 309-10. No subsequent case has specifically discussed whether section 702.07 deprives a circuit court of jurisdiction from revisiting a final judgment of foreclosure once a sale has occurred....

...However, numerous cases have reviewed circuit court decisions doing just that, without any indicia that the circuit court might have acted without jurisdiction. See, e.g., Cicoria v. Gazi, 901 So.2d 282 (Fla. 5th DCA 2005); Powers v. ITT Fin. Servs. Corp., 662 So.2d 1343 (Fla. 5th DCA 1995). We therefore conclude that section 702.07 cannot be interpreted as depriving a circuit court of jurisdiction to set aside or reconsider a foreclosure judgment upon a proper motion once a foreclosure sale has been held....

...If the circuit court denied Sterling's motion for relief from judgment on this ground, the court erred. III. THE FORECLOSURE JUDGMENT WAS NOT VOID AND THEREFORE STERLING'S MOTION FOR RELIEF FROM JUDGMENT WAS PROPERLY DENIED Although the trial court may have erred if it relied upon section 702.07 when it denied the motion, we conclude that Sterling's motion for relief from judgment did not establish a claim that this judgment was void....

...days after filing of the certificate of sale the clerk shall then issue a certificate of title, whereupon the sale shall stand confirmed and title pass. The chapter does not provide for the procedure to be followed in the event objections are filed. Section 702.07 stipulates that circuit courts shall have jurisdiction to vacate and set aside decrees of foreclosure at any time before the sale has actually been made....

...If, as in the present case, objections are filed but overruled and the certificate of title then issued, petitioner contends that since the chapter does not provide for a rehearing none may be had, for the reason that the circuit court had thereupon lost jurisdiction of the matter. He alleges that the provision of Section 702.07 supports this *310 contention....

...Further, we find that the plaintiff seller's corporation by the terms of the wrap-around mortgage was liable on the DFS mortgage and in absence of satisfaction thereof, the corporation's liability thereon would continue. Finally, we note that the exercise of power pursuant to Fla. Stat. § 702.07, F.S.A., which was relied upon by defendant-appellant to set aside the judgment of foreclosure, is within the discretion of the trial judge and appellant has failed to demonstrate an abuse thereof....

...ing an extended sale date and conciliation. The trial court vacated the sale and the parties attended two separate and unsuccessful mediations. In September 2010, the Tolers filed a motion to vacate the final summary judgment, ostensibly pursuant to section 702.07....

...Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). Questions of law, such as the interpretation *702 of statutes, are reviewed de novo. Cont'l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 373 (Fla.2008). In their arguments, the parties dispute the effect of section 702.07, Florida Statutes (2009), and we resolve that issue first....

..., vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs. § 702.07. The Tolers argue that section 702.07 exists independent of any other means of obtaining relief from a judgment. Contrary to the Tolers' belief, section 702.07 standing alone does not create an independent, substantive right to vacate a judgment of foreclosure for any reason, even one that should have been properly raised at an earlier stage in the proceeding. Section 702.07 grants a circuit court the "jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property." § 702.07....

...11881, § 5, at 383, Laws of Fla. (1927) ("[T]his Act shall take effect immediately upon its approval by the Governor, or become a law without the approval thereof." (emphasis added)). In 1954, almost thirty years after the enactment of section *703 702.07, the Florida Supreme Court adopted the modern rules of civil procedure, which included Rule 1.540's predecessor....

...3d DCA 1960); Maule Indus. v. Seminole Rock & Sand Co., 91 So.2d 307 (Fla.1956); Grace v. Hendricks, 103 Fla. 1158, 140 So. 790 (1932); Taylor v. Day, 102 Fla. 1006, 136 So. 701 (1931); Fasel v. Cox, 99 Fla. 968, 128 So. 33 (1930). [2] As to the timeliness issue, section 702.07 is irrelevant under the facts of this case....

...5th DCA 2005) (limiting the jurisdiction of a trial court to vacate a judicial sale, after the issuance of a certificate of sale, to instances in which there is misconduct in the sales process or irregularities in the notice process); see also Fla. Stat. § 702.07 *314 (2012) (“[t]he circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made (emphasis added)....

...Sys., C.A., 682 So.2d 219, 220 (Fla. 3d DCA 1996) (“The public policy of the State of Florida, as articulated in numerous court decisions, highly favors settlement agreements among parties and will enforce them whenever possible.”). Wells Fargo’s motion relied upon section 702.07, Florida Statutes (2011), as well as Florida Rule of Civil Procedure 1.540(b)(5). We have held that section 702.07 “standing alone does not create an independent, substantive right to vacate a judgment of foreclosure for any reason,” *61 and that the statute must be read together with Rule 1.540 which “provides the avenue” for such relief....

trial court’s exercise of its authority under section 702.-07, Florida Statute (1987) and Florida Rule of

...The appellee takes the position that Noba-ni’s motion to substitute parties and motion to file a second amended complaint that added new defendants was not the same as a motion to vacate or set aside the initial summary final judgment of foreclosure. Pursuant to section 702.07, Florida Statutes (1993), the circuit court has the authority to vacate or set aside any foreclosure judgment at any time prior to sale....

...ed within the time prescribed for filing a petition for rehearing. 1 An appellate court may not review a final decree not appealed in a proceedings to review a subsequent order. 2 Fla.Jur., Appeals, § 305. The appellee contends that by the terms of § 702.07, Fla.Stat., F.S.A., the chancellor had lost the power to set aside this decree. Section 702.07, supra, grants to the chancellor the power to “rescind, vacate and set aside a decree of foreclosure of a mortgage of property at any time before sale thereof has been actually made pursuant to the terms of such decree.” See also Taylor v....

...Appellant appeals from the trial court’s order denying Appellant’s motion to vacate the summary judgment of foreclosure, to dismiss the complaint, and to dissolve the lis pendens. Appellant’s motion was filed in the trial court pursuant to section 702.07, Florida Statutes (2015), and rule 1.540(b), Florida Rules of Civil Procedure....

...2 Rejection of Salazar’s objections to the sale should have triggered the ministerial act of filing a certificate of title. See § 45.031, Fla. Stat. (2013) (requiring the clerk of the court to file and then record a certificate of title unless a timely objection is filed); § 702.07, Fla....

...he sale thereof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs”); Wells Fargo Bank, NA v. Giglio, 123 So. 3d 60, 60-61 (Fla. 4th DCA 2013) (holding that “section 702.07 ‘standing alone does not create an independent, substantive right to vacate a judgment of foreclosure for any reason,’ and that the statute must be read together with Rule 1.540 which ‘provides the avenue’ for such relief” (quoting Toler v. Bank of America. Nat. Ass’n, 78 So. 3d 699, 702-03 (Fla. 4th DCA 2012)); Toler, 78 So. 3d at 703 (“Given the statute’s [section 702.07] plain language and history, the statute and Rule 1.540 should be read together with, so that, as in other civil cases, Rule 1.540 provides the avenue for relief from a judgment of foreclosure.”). 3 The final judgment entered below r...