May 2016 Florida Real Estate Case Law Updates

Daniel PascaleBy: Daniel T. Pascale, Esq.

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Hayes v. Norman Harris Services, Inc., 41 Fla. L. Weekly D293

Trial Court Must Hear Homestead Arguments to Stay Execution of Judgment

Background: Mortgagors filed motion to vacate consent judgment and motion to stay writ of execution and vacate sheriff’s levy as to their personal residence. The Circuit Court, Polk County, Keith P. Spoto, J., denied motions. After their motion for rehearing or clarification was summarily denied, mortgagors appealed.

Holdings: The District Court of Appeal held that:

  1. Challenge to trial court’s refusal to consider homestead objection was preserved for appellate review, and
  2. It was a denial of due process for trial court to refuse to hear argument that the property was protected from forced sale by the homestead exemption.

Affirmed in part, reversed in part, and remanded.

Hendricks v. Department of Business and Professional Regulation, 183 So.3d 1172

Florida Real Estate Recovery Fund

Background: Prospective purchasers who had obtained default judgments against real estate licensees in underlying action for fraud appealed final orders of Florida Real Estate Commission (FREC) denying their claims against the Florida Real Estate Recovery Fund.

Holdings: The District Court of Appeal held that:

  1. Licensees acted solely in their capacities as real estate brokers in the mishandled sale of newly constructed homes such that purchasers could pursue claims against Florida Real Estate Recovery Fund, and
  2. Misconduct for which prospective purchasers obtained default judgments against licensees in underlying civil action was within scope of activity prohibited by professional rules and regulations governing real estate brokers such that purchasers could pursue claims against Florida Real Estate Recovery Fund

Reversed and remanded.

Reformation of Mortgage After Certificate of Title

Federal Nat. Mortg. Ass’n v. Sanchez, 41 Fla. L. Weekly D594

Background: Mortgage association filed post-foreclosure motion to vacate final judgment, foreclosure sale, and certificate of title after discovering they contained incorrect legal description. The Circuit Court, 15th Judicial Circuit, Palm Beach County, Diana Lewis, J., granted motion to vacate but sua sponte dismissed case without notice or hearing, and denied motion for rehearing. Mortgage association appealed.

Holdings: The District Court of Appeal, Levine, J., held that:

  1. Mortgage association was denied due process, and
  2. Attempted reformation required vacating the final judgment of foreclosure, judicial sale, and issuance of title.

Reversed and remanded.



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