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Tanis v. HSBC Bank USA, N.A.

Florida Court of Appeals, Third District

December 4, 2019

Nadine Tanis, et al., Appellants,
v.
HSBC Bank USA, N.A., etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-608 Beatrice Butchko, Judge.

          Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellants.

          Greenberg Traurig, P.A., Kimberly S. Mello (Orlando), and Joseph H. Picone (Tampa), for appellee.

          Before FERNANDEZ, LOGUE, and MILLER, JJ.

          MILLER, J.

         Appellants, Nadine Tanis and the Heirs in Estate of Hans Tanis (the "Heirs"), challenge an order overruling their joint verified objection to a judicial foreclosure sale. On appeal, appellants contend the failure to inform a non-record attorney of the rescheduled judicial sale date violated their right to procedural due process. Because appellants were adequately furnished with notice of the sale, and the ensuing objection was both unfounded and untimely, we affirm the exercise of discretion by the lower tribunal.

         FACTS AND BACKGROUND

         On February 16, 2007, Hans Tanis negotiated an adjustable rate promissory note in favor of IndyMac Bank, F.S.B. ("IndyMac"), a federally chartered thrift institution. The note was secured by a contemporaneously executed mortgage encumbering Mr. Tanis's residential property located in North Miami, Florida.

         On March 9, 2012, Mr. Tanis conveyed the same property by quitclaim deed to Nadine Tanis. The following day, he passed away. Less than one year later, IndyMac declared a default under the terms of the note and mortgage.

         In early-2016, appellee, HSBC Bank USA, National Association, as Trustee for Deutsche ALT-A Securities Mortgage Loan Trust, Series 2007-OA2 Mortgage Pass-Through Certificates (the "Trustee"), initiated the foreclosure proceedings below against Ms. Tanis and the Heirs. Attorney James Jean-Francois filed a notice of appearance and responsive pleadings on behalf of Ms. Tanis. Thereafter, the trial court appointed an active member in good standing of the Florida Bar to serve as guardian ad litem on behalf of the Heirs (the "Guardian"). The Guardian filed an answer generally denying the allegations set forth within the complaint.

         In 2017, after conducting a duly noticed non-jury trial, the lower court entered a final judgment of foreclosure in favor of the Trustee. A judicial foreclosure sale was subsequently slated for February 26, 2018. Three days prior to the scheduled sale, attorney Mark Pomeranz filed an emergency motion for continuance on behalf of Ms. Tanis and the Heirs. Pomeranz neither filed a notice of appearance nor sought to substitute as counsel of record.

         The trial court granted the motion, in open court, and rescheduled the sale for May 29, 2018. The Trustee was the successful bidder at the sale. On June 1, 2018, the clerk of courts filed the certificate of sale and served the same on both Jean-Francois and the Guardian. On June 14, 2018, the clerk issued the certificate of title. On July 2, 2018, Pomeranz filed a verified objection to the sale, citing his failure to receive notice of the rescheduled sale date and the pursuit of "loss mitigation."[1] The lower tribunal convened a hearing on the objection and, ultimately, denied relief. The instant appeal ensued.

         STANDARD ...


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