A mortgagee filed a lawsuit in Miami-Dade County to foreclose on a residence. The mortgagee obtained a judgment of foreclosure, and the sale date was set for Aug. 27, 2009. The mortgagor requested a continuance of the sale date on the basis that, with a postponement of the sale, he might be able to do a deal and keep the property. The trial judge granted the continuance, which was apparently her routine practice in such circumstances. Trial judges are generally given discretion to grant continuances.
The judge explained her actions as follows, “I was trying to make everybody happy. ... We have so many foreclosures here, and I give continuances on these sales, I just do. ... If there is any chance that he can do this deal, get the money and try to save his home, you know, people are having a hard time now. Everybody knows it. Businesses are failing. People are losing money in the stock market. You know, unemployment is high. It’s just everybody knows that we are in a bad time right now and I hate to see anybody lose their home.”
The mortgagee disagreed with the trial judge’s ruling and filed an appeal. In Florida, there is a statute that provides the sale of the property is to take place not less than 20, or more than 35 days, after the date of a judgment of foreclosure. In this case, the Third District Court of Appeal disagreed with the granting of the continuance solely on grounds of benevolence and compassion. The Court of Appeal stated that no judicial action to the detriment of one party, and benefit of another, could rest on such a foundation.
The court explained its ruling by quoting United States Supreme Court Justice Benjamin N. Cardozo. “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 of beauty 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 social life.’ ”
Marc Huling is a business litigation attorney at the law firm of Roetzel and Andress. He represents clients in a wide variety of business contract and tort disputes. Contact him at (239)649-2716 or MHuling@ralaw.com.