Canceling and Rescheduling a Mortgage Foreclosure Sale Now Requires a Motion
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In 2010, the Florida Supreme Court approved an amendment to the Florida Rules of Civil Procedure regarding mortgage foreclosures and enacted new forms, such as Form 1.996(b), Motion to Cancel and Reschedule Foreclosure Sale. In 2014, the Florida Supreme Court renumbered this form to the current Form 1.996(c) (2019). If a plaintiff wishes to cancel and reschedule a mortgage foreclosure sale, a written motion must be filed with the court in accordance with Florida Rules of Civil Procedure, Form 1.996(c).
Form 1.996(c), Motion to Cancel and Reschedule Foreclosure Sale
Form 1.996(c), Motion to Cancel and Reschedule Foreclosure Sale, was adopted because “many foreclosure sales set by the final judgment and handled by the clerks of court [were] the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale [was] being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused….” A motion in accordance with Florida Rules of Civil Procedure, Form 1.996(c) is now required to cancel and reschedule a foreclosure sale to “promot[e] effective case management and keep properties out of extended limbo between final judgment and sale.” In re Amendments To The Fla. Rules Of Civil Procedure, 44 So. 3d 555 (Fla. 2010).
Form 1.996(c) provides space for the plaintiff to check-off, from a list, various reasons to request a mortgage foreclosure sale to be cancelled and rescheduled. The list of reasons provided on Form 1.996(c) include:
a. Plaintiff and defendant are continuing to be involved in loss mitigation;
b. Defendant is negotiating for the sale of the property that is the subject of this matter and plaintiff wants to allow the defendant an opportunity to sell the property and pay off the debt that is due and owing to plaintiff;
c. Defendant has entered into a contract to sell the property that is the subject of this matter and plaintiff wants to give the defendant an opportunity to consummate the sale and pay off the debt that is due and owing to plaintiff;
d. Defendant has filed a Chapter ___ Petition under the Federal Bankruptcy Code;
e. Plaintiff has ordered but has not received a statement of value/appraisal for the property;
f. Plaintiff and defendant have entered into a Forbearance Agreement; and
A Noticed Hearing is Required
A copy of Form 1.996(c) must be served on the defendant(s) in conformity with Florida Rule of Civil Procedure 1.080(a) and must be set for a hearing with proper notice. Failure to give proper notice will be a violation of a party’s due process rights, and will subject the movant or movant’s counsel to sanctions. See Jade Winds v. Citibank, 63 So. 3d 819 (Fla. 3d DCA 2011) (The plaintiff brought an “Emergency Motion to Cancel and Reschedule Foreclosure Sale” the morning of the scheduled sale, without properly serving the defendant’s counsel and without notifying defendant’s counsel of the hearing. Although the motion was filed as an “emergency,” failure to notify defendant’s counsel was a violation of the defendant’s due process rights. The order cancelling the sale was “void for lack of notice,” and the plaintiff and plaintiff’s counsel were subject to sanctions).
Some courts in Florida have expanded the requirements for cancelling and rescheduling foreclosure sales. For example, in Miami-Dade County (11th Judicial Circuit), a motion to cancel and reschedule a foreclosure sale must include a statement of the history of the case: the date of final judgment, prior sale dates given, movant and date of prior motions to cancel and reason given for cancellation, dates of prior orders to cancel sale, reason for any incomplete sale, and other related information. If a sale was previously cancelled for loss mitigation, a loss mitigation history and resolution must also be included. In addition, there will be no reset dates given at the time of cancellation on affidavit moratorium or loss mitigation cancellations. See Administrative Memorandum Civ 10-E.
As another example, in Pasco and Pinellas counties (6th Judicial Circuit), a motion to cancel and reschedule a foreclosure sale must state the number of times the plaintiff has previously requested cancelation of a sale and must include an affidavit with supporting grounds of the motion. Any proposed order prepared to cancel the foreclosure sale must include a date to reschedule the sale or include a blank space for a date to be filled in by the court or clerk. The failure to publish a notice of sale in a newspaper is not a ground for canceling the foreclosure sale and does not impair the clerk’s authority to issue a certificate of sale. See Administrative Order No. 2019-004 PA/PT-CIR.
If a plaintiff wishes to cancel and reschedule a mortgage foreclosure sale, it can only be done by written motion to the court in accordance with Florida Rules of Civil Procedure, Form 1.996(c). It is important to check the local rules of your county to ensure compliance with any additional procedural requirements. The court has discretion to order the cancellation and rescheduling of a foreclosure sale based on the reason provided by the plaintiff and the circumstances involved.
- Austin B. Calhoun, Esquire
- Melissa Murrin, JD Candidate 2021