BONNIE FINCHAM, APPELLANT,
v.
ROBERT KENT FINCHAM, APPELLEE
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In this marital dissolution matter, the appellate court reversed the trial court's denial of the wife's motion to vacate a judicial sale of the marital home. The court found that inadequate notice, procedural irregularities, and grossly inadequate sale price (property worth approximately $135,000 sold for only $5,000) together warranted setting aside the sale and ordering a new one.
The court held that while inadequacy of price alone is insufficient to set aside a judicial sale, inadequacy combined with other circumstances—including improper notice, procedural irregularities, and the wife's inability to prepare for the sale—constitutes reversible error warranting vacation of the sale and scheduling of a new one.
[1] Inadequacy of price alone is insufficient to set aside a judicial sale, but it is sufficient when combined with other circumstances that caused the inadequacy and resulte…
[2] A party's failure to file a written appearance does not necessarily waive their right to service of process on papers filed in a cause.
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Establishes the controlling legal standard that price inadequacy must be combined with other circumstances to warrant vacation of a sale.
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Join FLexlaw to unlock all legal intelligenceFollowing a final judgment in a marital dissolution case and appeal, the trial court entered an order determining rental value of the marital home and…
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DOWNEY, Judge.
After final judgment and an appeal to this court, appellee husband filed a motion for judgment in accordance with the mandate. As a result of several hearings the court entered an order determining the rental value of the marital domicile, awarding the husband a sum for rental value during the wife’s residency therein, and awarding the husband reimbursement for expenditures for taxes, repairs, and other items. Finally, the trial court ordered that the property be sold on a date to be set by the clerk.
On November 30, 1982, the clerk filed a notice of sale, prepared by counsel for the husband, stating that the property would be sold on January 10, 1983. Neither the wife nor her present or former counsel received a copy of said notice, although the clerk testified that she mailed a copy of the notice to the wife’s former counsel. Present counsel had filed a number of pleadings in the cause and attended several hearings on behalf of the wife but did not file a written appearance.
On the Friday before the Monday, January 10th, sale counsel for the husband called counsel for the wife and apprised wife’s counsel of the sale set for Monday. The wife, a resident of Kansas, came to West Palm Beach immediately but was unable on such short notice to obtain the funds she planned on using to bid at the sale. The wife moved for a continuance of the sale because of the lack of notice, but the motion was denied.
The record indicates the property in question was valued at approximately $135,000, but was encumbered by mortgages totaling $85,000. The husband was the sole bidder at the sale and bought the property for $5,000. Thus, he was able to purchase a $50,000 equity for $5,000.
It is a long standing rule that inadequacy of price alone is not sufficient to set aside a judicial sale. 33 Fla.Jur.2d, Judicial Sales, § 43. However, inadequacy in connection with other circumstances having a tendency to cause the inadequacy’s resulting in injury is sufficient ground to set aside the sale. Id. In the instant case there is no statutory requirement that a notice of sale be given to the parties by the clerk. However, it is the clerk’s custom to do so. Furthermore, the notice of sale prepared by counsel for the husband is a paper that is filed in the cause in the trial court and Florida Rule of Civil Procedure 1.080 requires all such papers to be served on each party. The husband did not show at the hearing on the motion to continue the sale that any prejudice to him would result if the motion were granted. Thus, it seems to this court that the accumulation of those facts made a granting of a continuance of the sale most appropriate. Adding thereto the gross inadequacy of price at the sale would seem to mandate the granting of the wife’s motion to set aside and vacate the sale. Denial of that motion was reversible error. We have carefully considered the wife’s complaints about the inadequacy of time allowed her during the hearings prior to entry of the order of November 24, 1982, and find them to be without merit.
Accordingly, the order denying the wife’s motion to vacate the sale of the marital domicile is reversed, and the cause is remanded with directions to schedule a new sale of said property. In all other respects the orders appealed from are affirmed.
AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.
ANSTEAD, C.J., and DELL, J., concur.
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Virgel Bennett v. Ward, 667 So. 2d 378 (Fla. 1st DCA 1995)…(reversing order refusing to vacate third judicial sale that took place without notice to appellant who bid substantially more at the first two (noticed but later rescinded) judicial sales than the property brought at the third); Fincham v. Fincham, 443 So. 2d 312, 313 (Fla. 4th DCA 1983) (reversing order denying wife’s motion to vacate judicial sale of marital domicile where notice of sale prepared by husband’s counsel was not served on wife). Outlining the procedure to be followed in a judicial sale, secti…
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Bus. Credit Leasing, Inc. v. Engineered Disposal Sys., Inc., 543 So. 2d 409 (Fla. 4th DCA 1989)…stion the unreasonableness of the sale four and one-half years later. Even the law concerning judicial or execution sales requires the debtor to timely object to a sale. Inadequacy of price is not sufficient to set aside a sale. Fincham v. Fincham, 443 So. 2d 312 (Fla. 4th DCA 1983); Coney v. First State Bank of Miami, 405 So. 2d 257 (Fla. 3d DCA 1981). REVERSED AND REMANDED. HERSEY, C.J., LETTS and GLICKSTEIN, JJ., concur.…
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Fernandez v. Suburban Coastal Corp., 489 So. 2d 70 (Fla. 4th DCA 1986)…ale, reinstatement of the certificate of sale to appellant, and an order issuing the certificate of sale to the appellant. It is a long standing rule that inadequacy of price alone is not sufficient to set aside a judicial sale. Fincham v. Fincham, 443 So. 2d 312, 313 (Fla. 4th DCA 1983). However, where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resul…1 / 2
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