Diaz v. U.S. Bank, N.A., 3D17–930

239 So.3d 151

Argilio DIAZ and America Diaz, Appellants,

v.U.S. BANK, N.A., etc., et al., Appellees.

No. 3D17–930

District Court of Appeal of Florida, Third District.

Opinion filed February 7, 2018

Rieger Law, P.L., and Thomas F. Rieger (Naples); Niles B. Whitten (Gainesville), for appellants.

Weitz & Schwartz, P.A., and Sarah T. Weitz, Steven C. Weitz, and Nathan L. Wood (Fort Lauderdale), for appellee U.S. Bank, N.A.; The Griffith Law Firm, P.A., and Derek R. Griffith, for appellee MHR Group, LLC.

Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.

EMAS, J.

Argilio and America Diaz appeal (1) the February 7, 2017 final judgment of foreclosure (following trial) in favor of U.S. Bank, N.A.;¹ (2) the April 20, 2017 order denying the Diazes' motion for rehearing of the final judgment; (3) the April 20, 2017 order denying the Diazes' objection to, and motion to vacate, the foreclosure sale; and (4) the April 20, 2017 order granting third-party purchaser MHR Group, LLC's motion for certificate of title and writ of possession. We affirm in part and reverse in part.

As to the final judgment of foreclosure, we hold that the trial court erred in including attorney's fees and costs as a part of that judgment. Although U.S. Bank, prior to trial, filed affidavits attesting to the amount and reasonableness of the attorney's fees and costs incurred, U.S. Bank acknowledges that these affidavits were not introduced into evidence (assuming their admissibility at trial), and no testimony or evidence regarding attorney's fees and costs was presented at the trial. Under these circumstances, the trial court erred in including in the final judgment an award of attorney's fee and costs. See Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280 (Fla. 2d DCA 2014). As to the remaining issues raised by the Diazes against the final judgment, we affirm without further discussion,² and we also affirm the order denying the Diazes' motion for rehearing.

However, we reverse the order denying the Diazes' objection to, and motion to vacate, the foreclosure sale and the order granting MHR Group, LLC's motion for certificate of title and writ of possession. As U.S. Bank properly and commendably concedes, the trial court erred in denying the objection to and motion to vacate the sale and in ordering the clerk to issue the certificate of title, where the foreclosure sale was conducted on March 22, 2017, while the Diazes' motion for rehearing, directed to the final judgment, remained pending. Enforcement of the final judgment was suspended until the trial court disposed of the timely filed motion for rehearing directed to the final judgment. See 944 CWELT–2007 LLC v. Bank of Am., N.A., 194 So.3d 470 (Fla. 3d DCA 2016) ; United Invs. Ltd. P'ship v. Resolution Tr. Corp., 566 So.2d 370 (Fla. 3d DCA 1990) ; Hoffman v. BankUnited, N.A., 137 So.3d 1039 (Fla. 2d DCA 2014).

In doing so, we decline the invitation of the third-party purchaser, MHR Group, LLC, to affirm on the basis that the Diazes did not act with reasonable diligence in securing a hearing and ruling on the motion for rehearing prior to the scheduled foreclosure sale date.

Instead, we would urge trial courts in these circumstances to ensure that any pending motion for rehearing has been resolved prior to the scheduled foreclosure sale. This could be accomplished rather straightforwardly: when the trial court enters the final judgment of foreclosure (which judgment may include a specific date for the foreclosure sale), the trial court can also schedule a status conference to be held at least fifteen days from the date of the filing of the final judgment (i.e., the time within...