Opinion
Case No. 2D19-373
03-11-2020
Karen KERNAN, individually and as Trustee under the 3725 Helmig Land Trust Agreement, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY HOME EQUITY LOAN TRUST 2006-1, Appellee.
Niles B. Whitten, Gainesville, for Appellants. Jonathan Jacobson, Zachary Ullman, and Jennifer Travieso of Aldridge | Pite, LLP, Delray Beach, for Appellee.
Niles B. Whitten, Gainesville, for Appellants.
Jonathan Jacobson, Zachary Ullman, and Jennifer Travieso of Aldridge | Pite, LLP, Delray Beach, for Appellee.
LaROSE, Judge. Karen Kernan, individually and as Trustee under the 3725 Helmig Land Trust Agreement, appeals the trial court's final judgment of foreclosure, order denying Ms. Kernan's motion for rehearing and to vacate final judgment, and order denying Ms. Kernan's objection and motion to vacate the sale and certificate of sale.
Ms. Kernan correctly argues and Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Home Equity Loan Trust 2006-1, correctly concedes that she is entitled to vacatur of the foreclosure sale because the sale occurred while Ms. Kernan's timely motion for rehearing was pending in the trial court. See Lowenstein v. U.S. Bank Nat'l Ass'n, 253 So. 3d 86, 87 (Fla. 2d DCA 2018) ("It is well settled that a foreclosure sale cannot be held while a timely motion for rehearing is pending because enforcement of a final judgment is suspended by the filing of the rehearing motion." (quoting 944 CWELT–2007 LLC v. Bank of Am., N.A., 194 So. 3d 470, 471 (Fla. 3d DCA 2016) )); Hoffman v. BankUnited, N.A., 137 So. 3d 1039, 1039 (Fla. 2d DCA 2014) ("[W]e agree that the foreclosure sale of the property must be set aside because the sale was conducted while Hoffman's timely motion for rehearing was pending.").
Accordingly, we reverse the trial court's order denying Ms. Kernan's objection and motion to vacate the sale and certificate of sale, vacate the foreclosure sale, and remand with instructions for the trial court to set a new foreclosure sale date and for further proceedings consistent with this opinion. See Hoffman, 137 So. 3d at 1039 ("Because the trial court disposed of the rehearing motion some time after the sale, the court may again order the foreclosure sale of the property on remand."). We affirm in all other respects, without comment.
Affirmed in part; reversed in part; vacated in part; remanded with directions.
KHOUZAM, C.J., and VILLANTI, J., Concur.