Chapter 1-10 Sale

1-10 Sale

Upon entry of a final judgment in a mortgage foreclosure action, Florida's judicial sales procedure governs.⁵⁷ The sale is necessary because the interest a foreclosure mortgagee can acquire (payment of the debt through sale, or in the alternative, possession of and title to the property) only occurs through judgment and sale.⁵⁸ Any remaining indebtedness after sale may be sought against the mortgagee personally through a deficiency judgment. For a complete discussion about deficiency judgments, see Chapter 19: Deficiency Judgments.

1-10:1 Scheduling of Foreclosure Sale

The clerk of court is tasked with holding foreclosure auctions, and the court is to direct the clerk to hold the sale on a specified date between 20 and 35 days from the entry of judgment.⁵⁹ If the plaintiff or its counsel agrees, a longer period of time may be permitted before the sale is held.⁶⁰ As a practical matter, many courts in Florida schedule foreclosure sales farther out, even over the objection of the plaintiff.

1-10:2 Publication of Scheduled Sale

A foreclosure judgment is served upon all parties, including the judgment debtor, but Florida also requires that a Notice of Sale be published once a week for two consecutive weeks in the county where the sale will be held, providing notice of certain details to the public.⁶¹ Without proper publication of the Notice of Sale, the foreclosure sale cannot be confirmed.⁶²

1-10:3 Redemption and Reinstatement

Mortgagors have a right of redemption throughout the foreclosure process, and this right may be exercised by the mortgagor or by the holder of any subordinate interest (such as a lessee or current owner of the property).⁶³ The right of redemption is the borrower's ongoing right to satisfy the indebtedness at any time prior to foreclosure.⁶⁴ Even after the judgment is entered, a mortgagor's right to redeem is not extinguished until the clerk issues a Certificate of Sale, or until a time specified within the final judgment, whichever occurs later.⁶⁵ If the judgment is redeemed, the foreclosure sale will be stopped and the borrower will not be divested of title.⁶⁶

Mortgagors may also have the right to reinstate their loan at any time prior to the entry of a foreclosure judgment, but this right is controlled by the mortgage itself.⁶⁷

1-10:4 Auction and Bidding

The public auction process is also governed by statute in mortgage foreclosure actions.⁶⁸ The final judgment must specify not only the date of the sale, but also the time...