Maria C. Aparicio, et al., Appellants,
Deutsche Bank National Trust Company, etc., Appellee.
final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 17-10986 Beatrice Butchko, Judge.
Anthony Rumore, P.A., and C. Anthony Rumore (Fort
Lauderdale), for appellants.
& Schwartz, P.A., and Sarah T. Weitz (Fort Lauderdale),
EMAS, C.J., and MILLER, and LOBREE, JJ.
Maria C. Aparicio and Guillermo Aparicio ("the
borrowers"), challenge an order denying their motion to
set aside a judicial foreclosure sale. In furtherance of
relief, the borrowers contended the final summary judgment
precipitating the sale was improvidently entered. For the
reasons articulated below, we affirm the discretion exercised
by the trial court.
convening a duly noticed summary judgment hearing, the lower
tribunal entered a final judgment of foreclosure in favor of
Deutsche Bank National Trust ("the bank"), in its
formal capacity as the steward of certain mortgage-backed
securities trusts. The borrowers timely sought rehearing,
alleging evidentiary infirmities in the court's grant of
summary judgment. The court denied relief and the borrowers
failed to appeal.
bank was the successful bidder at an ensuing properly noticed
and scheduled foreclosure sale. Thereafter, the borrowers
filed a timely objection to the sale, again asserting
purported flaws inherent in the court's decision granting
final summary judgment. See § 45.031, Fla.
Stat. (2019). The lower tribunal denied relief and the
instant appeal ensued.
may be stated generally that there is a measure of discretion
in a court of equity, both as to the manner and the
conditions of such a sale, as well as to ordering or refusing
a resale." C. G. Ballentyne & Honolulu Rapid
Transit & Land Co. v. Smith, 205 U.S. 285, 290, 27
S.Ct. 527, 529, 51 L.Ed. 803 (1907). Accordingly,
"judgments pertaining to set asides of judicial
foreclosure sales are now, as they always have been, subject
to review by way of an abuse of discretion standard."
Arsali v. Chase Home Fin. LLC, 121 So.3d 511, 519
(Fla. 2013) (citations omitted); see also Smith, 205
U.S. 285, 27 S.Ct. 527. But cf. Wells Fargo Bank, N.A. v.
Lupica, 36 So.3d 875, 876 (Fla. 5th DCA 2010) (applying
a "gross" abuse of discretion standard in reviewing
an order denying a motion to vacate a foreclosure sale).
trial courts' use of their equity powers in resolving
disputes pertaining to judicial foreclosure sale set aside
actions is essential." Arsali, 121 So.3d at
518. In the exercise of these powers, "[t]he chancellor
. . . after a sale has once been made . . . will, certainly
before confirmation, see that no wrong has been accomplished
in and by the manner in which it was conducted.'"
Smith, 205 U.S. at 290-91, 27 S.Ct. at 529.
Nonetheless, any decision must be closely informed by a
demonstration of entitlement to equitable relief premised
upon "one or more adequate equitable factors."
Arsali, 121 So.3d at 518 (citation omitted).
"Those factors include 'gross inadequacy of
consideration, surprise, accident, or mistake . . ., and
irregularity in the conduct of the sale.'"
Lawrence v. Nationstar Mortg., LLC, 197 So.3d 150,
151 (Fla. 4th DCA 2016) (alteration in original) (quoting
Moran-Alleen Co. v. Brown, 98 Fla. 203, 203, 123 So.
561, 561 (1929)).
in pursuing relief from the sale, the borrowers failed to
allege "one or more adequate equitable factors and make
a proper showing to the trial court that they
exist[ed]," in the proceedings below. Arsali,
121 So.3d at 518. Instead, they embarked on an impermissible
mission designed to once again elucidate the infirmities in
the underlying judgment. See Flagstar Bank, F.S.B. v.
Cleveland, 87 So.3d 63, 65 (Fla. 4th DCA 2012)
("This court has long held, however, that '[a] trial
court is without jurisdiction to entertain a second motion
for relief from judgment which attempts to relitigate matters
settled by a prior order denying relief.'")
(alteration in original) (quoting Steeprow Enters., Inc.
v. Lennar Homes, Inc., 590 So.2d 21, 23 (Fla. 4th DCA
1991)); De Ardila v. Chase Manhattan Mortg. Corp.,
826 So.2d 419, 421 (Fla. 3d DCA 2002) ("[W]e cannot
escape the conclusion that what occurred was a rehearing of a
rehearing, and ultimately an untimely appeal."); see
also St. Cloud Utils. v. Moore, 410 So.2d 973, 974 n.3
(Fla. 5th DCA 1982) ("The trial court loses
jurisdiction, except to enforce the judgment and except as
provided by Florida Rule of Civil Procedure 1.540, when the
time for filing a motion for rehearing or new trial has
expired, or if such motion has been timely filed, when it is
ruled upon.") (citation omitted).
although we adhere to the adage that "the trial courts
in this state possess sufficient powers to ensure that
'equity will act to prevent the wrong result' in
judicial foreclosure sale disputes," on this record, we
ascertain no abuse of discretion by the lower tribunal in
denying relief. Arsali, 121 So.3d at 519 ...