MARK F. PETERSON, APPELLANT,
v.
LAKE SURPRISE II CONDOMINIUM ASSOC., ET AL., APPELLEES
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Peterson purchased property at a judicial foreclosure sale after the trial court granted the mortgagee's motion to vacate a default judgment and set aside the sale. The appellate court reversed, holding that the mortgagee's conscious decision not to file an answer—despite advice of counsel to do so—cannot constitute excusable neglect, and that courts lack jurisdiction to vacate a judicial sale after it has been completed.
The appellate court held that a conscious decision not to comply with legal requirements, even if erroneous, cannot constitute excusable neglect under Rule 1.540(b)(1). Additionally, trial courts lack jurisdiction to vacate a judicial sale after the sale has been actually made; such jurisdiction exists only before the sale occurs or in cases of misconduct or irregularities in the sales or notice process.
[1] A conscious decision not to comply with legal requirements does not constitute excusable neglect under Fla. …
[2] To set aside a default final judgment, the moving party must demonstrate excusable neglect for failing to file a responsive pleading, a meritorious defense, and due dilig…
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Join FLexlaw to unlock all legal intelligence“A conscious decision not to comply with the requirements of the law cannot be "excusable neglect" under the rule or any other equivalent requirement.”
Establishes the core principle that conscious decisions to violate legal requirements, even if erroneous, do not qualify as excusable neglect.
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Join FLexlaw to unlock all legal intelligenceA foreclosure action was filed against Peterson. The mortgagee made a conscious and deliberate decision not to file an answer to the complaint, contra…
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We find there is clear error in each of the two post-final default judgment of foreclosure orders challenged on appeal:
1) There is no lawful basis for the order granting a Fla. R. Civ. P. 1.540(b)(1) motion for relief from the default judgment, which was based upon the mortgagee’s conscious and deliberate — but sadly mistaken — decision, made contrary to advice of counsel, that it was not necessary to answer the complaint. A conscious decision not to comply with the requirements of the law cannot be “excusable neglect” under the rule or any other equivalent requirement. See Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004) (holding that a conscious but erroneous decision not to answer complaint cannot be excusable neglect); U.S. v. Hooper, 43 F.3d 26 (2d Cir.1994) (holding that failure to file timely notice of appeal due to ignorance of the law does not establish excusable neglect justifying late filing).
2) The same is true of the order vacating the regularly conducted judicial sale of the property at which the appellant was the purchaser. See Lazcar Intern., Inc. v. Caraballo, 957 So.2d 1191 (Fla. 3d DCA 2007) (“For a trial court to grant a motion to set aside a default final judgment, the moving party must show three things: (1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default.”); Cicoria v. Gazi, 901 So.2d 282 (Fla. 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).
The orders under review are therefore reversed and the cause is remanded to the trial court with directions to confirm the final default judgment of foreclosure, the sale, and the certificate of title issued to the appellant.
Reversed and remanded.
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Suntrust Mortg. v. Torrenga, 153 So. 3d 952 (Fla. 4th DCA 2014)…ion strategy. A party cannot obtain relief from a foreclosure sale “solely by reference to that party’s own lack of diligence.” John Crescent, Inc. v. Schwartz, 382 So. 2d 383 (Fla. 4th DCA 1980); see also Peterson v. Lake Surprise II Condo. Assoc., 118 So. 3d 313, 313 (Fla. 3d DCA 2013) (holding no basis for relief from default judgment and resulting foreclosure sale where the mortgagee determined that it was not necessary to answer complaint); Stamato v. Stamato, 818 So. 2d 662, 665 (Fla. 4th DCA 2002) (“[P…
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Hovercraft OF S. Fla., LLC v. Reynolds, 211 So. 3d 1073 (Fla. 5th DCA 2017)…ervs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). However, an attorney’s ignorance or misunderstanding of the law does not constitute excusable neglect. Peterson v. Lake Surprise II Condo. Assoc., 118 So. 3d 313, 313 (Fla. 3d DCA 2013) (“A conscious decision not to comply with the requirements of the law cannot be ‘excusable neglect’ under the rule or any other equivalent requirement.”); Geer v. Jacobsen, 880 So. 2d 717, 720-21 (Fla. 2d DCA 2004) (“The atto…
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Emerald Coast Utils. Auth. v. Bear Marcus Pointe, LLC, 227 So. 3d 752 (Fla. 1st DCA 2017)…Inc. v. Schwartz, 382 So. 2d 383, 385 (Fla. 4th DCA 1980). “A conscious decision not to comply with the requirements of law cannot be ‘excusable neglect’ under the rule or any other equivalent requirement.” Peterson v. Lake Surprise II Condo. Ass’n, 118 So. 3d 313 (Fla. 3d DCA 2013). Likewise, gross neglect is not excusable. Brivis Enters., Inc. v. Von Plinski, 8 So. 3d 1208, 1209 (Fla. 3d DCA 2009); Hornblower v. Cobb, 932 So. 2d 402, 406 (Fla. 2d DCA 2006); Lehner v. Durso, 816 So. 2d 1171, 1173 (Fla. 4th D…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Geer v. David Neal Jacobsen, Brian James Almengual, & Almengual & Warner, P.A., 880 So. 2d 717 (Fla. 2d DCA 2004)
- Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)
- Cicoria v. Gazi, 901 So. 2d 282 (Fla. 5th DCA 2005)