Friday, April 9, 2010

Florida Court Determines Continuance of Foreclosure Sale Based Solely on Benevolence/Compassion an Abuse of Discretion

Thanks to Wes Few for this case and summary.

In Republic Federal Bank v. Doyle, Florida's Third District Court of Appeals ruled that although the power to grant a continuance is generally within the discretion of the trial court, "benevolence and compassion" does not constitute a lawful basis to grant same.

While denying foreclosing lender's petition to overrule the trial court's grant of continuance of an August 29, 2009 foreclosure sale date based upon not wanting to "see anybody lose their home," the court determined that the trial court's "continuance was an abuse of discretion in the most basic sense of that term." The debtor had previously postponed a November 4, 2008 foreclosure order by filing for bankruptcy -- a filing which was later dismissed as frivolous. The Court noted that the statute governing foreclosures required the foreclosure sale to occur not more than 35 days after the entry of judgment. The Court of Appeal did not quash the trial court order only because the already delayed sale was to occur within a short time of its order.

The Court cited a 1980 case quoting Justice Cardozo on "judicial discretion" as follows:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.