IN THE SUPREME COURT OF FLORIDA .

NICHOLAS ARSALI,

Petitioner/Appellant,CASE NO.: SC12-600

v. L.T. NO.: 4D11-2348

CHASE HOME FINANCE LLC,AMY B. WILSON, andCHRISTOPHER D. MANNING,

Respondents/Appellees./

PETITIONER'S REPLY BRIEF

(In response to Respondents Wilson's and Manning's Answer Brief)

BETH M. COLEMAN, ESQ.Florida Bar No.: 903973BETH M. COLEMAN, P.A.Post Office Box 7280St. Petersburg, FL 33734(727) 526-1220beth@bmc-legal.comAttorney for Petitioner,Nicholas Arsali

TABLEOFCONTENTS

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

ARGUMENT......................................................1

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

I. BROWN AND ARLT DO NOT CONFLICT AND DO NOT NEEDTO BE RECONCILED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. THE FOURTH DISTRICT'S CERTIFIED QUESTION SHOULDBE REPHRASED AND ANSWERED IN THE NEGATIVE. . . . . .4

III. THERE WAS NO BASIS TO SET ASIDE THE FORECLOSURESALE OR JUDGMENT IN THIS CASE. . . . . . . . . . . . . . . . . . . . . . .8

IV. THE LOWER COURT SHOULD HAVE CONDUCTED ANEVIDENTIARY HEARING ON THE MOTION TO SETASIDE THE SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATES OF COMPLIANCE AND SERVICE . . . . . . . . . . . . . . . . . . . . 14

11

TABLE OF CITATIONS

Cases:

Action Realty & Invest., Inc. v. Grandison, 930 So. 2d 674 (Fla. 4th DCA 2006). . 8

Arlt v. Buchanan, 190 So. 2d 575 (Fla. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . .2-3

Arsali v. Chase Home Finance, LLC, 79 So. 3d 845(Fla. 4th DCA 2012) (Appx.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2-5, 7

Avi-Isaac v. Wells Fargo Bank, N.A., 59 So. 3d 174 (Fla. 2d DCA 2011) . 7, 12, 13

Bank ofAmerica, N.A. v. Lane, 76 So. 3d 1007 (Fla. 1" DCA 2011) . . . . . . . . . . . 9

Bilfuco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997) . .13

Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838, 840(Fla. 2d DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Chancey v. Chancey, 880 So. 2d 1281 (Fla. 2d DCA 2004) . . . . . . . . . . . . . . . . . 13

D 'Angelo v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . 1

Dillingham v. Dillingham, 667 So. 2d 337, 338 (Fla. 1* DCA 1995) . . . . . . . . . . 10

Fernandez v. Suburban Coastal Corp., 489 So. 2d 70 (4th DCA 1986) . . . . . . . . . .6

Flagler v. Flagler, 94 So. 2d 592 (Fla. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Florida Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc.,67 So. 3d 187 (Fla. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Hooters ofAmerica, Inc. v. Carolina Wings, Inc., 65 5 So. 2d 1231(Fla. 1" DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ingorvaia v. Horton, 816 So. 2d 1256 (Fla. 2d DCA 2002) . . . . . . . . . . . . . . . . .3, 4

John Crescent, Inc. v. Schwartz, 382 So. 2d 383 (Fla. 4th DCA 1980) . . . . . . . . . 12

111

Josecite v. Wachovia Mtg. Corp., -- So. 3d --, 2012 WL 3758648 (Fla. 5th DCAAug. 31, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

JPMorgan Chase Bank, N.A. v. Hernandez, -- So. 3d --, 2011 WL 2499641(Fla. 3d DCA Jun. 22, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Lawyers ' Co-op Pub. Co. v. Bennett, 16 So. 185 (Fla. 1894) . . . . . . . . . . . . . . . . . 2

Long Beach Mtg. Corp. v. Bebble, 985 So. 2d 611 (Fla. 4th DCA 2008) . . . . . . .6, 7

LR5A-JV v. Little House, LLC, 50 So. 3d 691 (Fla. 5th DCA 2010) . . . . . . . . . . . . .7

Macfarlane v. Macfarlane, 39 So. 995 (Fla. 1905) . . . . . . . . . . . . . . . . . . . . . . . . . 1

Matter ofBoromei, 83 B.R. 74 (Bankr. M.D. Fla. 1988) . . . . . . . . . . . . . . . . . . . . .8

Moran-Alleen Co. v. Brown, 123 So. 561 (Fla. 1929) . . . . . . . . . . . . . . . . . . 1-5, 11

One 79'* St. Estates, Inc. v. Am. Inv. Sycs., 47 So. 3d 886 (Fla. 3d DCA 2010) . .8-9

Phoenix Hldg., LLC v. Martinez, 27 So. 3d 791 (Fla. 3d DCA 2010) . . . .3, 5, 7, 11

PK Ventures, Inc. v. Raymond James & Assoc., Inc., 690 So. 2d 1296(Fla. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Republic Federal Bank, N.A. v. Doyle, 19 So. 3d 1053 (Fla. 3d DCA 2009) . . 7, 11

State v. T.G., 800 So. 2d 204 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sulkowski v. Sulkowski, 561 So. 2d 416 (Fla. 2d DCA 1990) . . . . . . . . . . . . . . . 5, 7

U-M Publishing Inc. v. Home News Pub. Co., Inc., 279 So. 2d 379(Fla. 3d DCA 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

United Companies Lending Corp. v. Abercrombie, 7 13 So. 2d 1017(Fla. 2d DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Van Delinder v. Albion Realty & Mtg., Inc., 287 So. 2d 352(Fla. 3d DCA 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

IV

Statutes, Rules, and Other Authorities:

§ 45.0315, Fla. Stat. (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

Fla. R. Civ. P. 1.540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

V

ARGUMENT

STANDARD OF REVIEW

Petitioner is asking the Court to evaluate only the Fourth District's legal

conclusions, not any discretionary decision of the trial court. As such de novo

review is the appropriate standard. See Florida Ins. Guar. Ass'n, Inc. v. Devon

Neighborhood Ass'n, Inc., 67 So. 3d 187 (Fla. 2011) (question of law concerning

proper test to be applied to issue is reviewed de novo); D 'Angelo v. Fitzmaurice,

863 So. 2d 311, 314 (Fla. 2003) (pure questions of law reviewed de novo and no

deference given to judgment of lower courts).

I. BROWN AND ARLT DO NOT CONFLICT AND DO NOT NEED TOBE RECONCILED.

All parties agree the Fourth District is mistaken in suggesting Brown and

Arlt conflict. See Init. Brf. at 8-13; Borrowers' Ans. Brf. at 7; Chase Ans. Brf. at 6,

12-13. Yet the Borrowers continue to adhere to the Fourth District's unnecessary

and unsound "reconciliation" analysis. Ans. Brf. at 7-10. Brown mentioned five

grounds for setting aside a sale: a grossly inadequate bid, surprise, accident,

mistake, and irregularity in the conduct of the sale. Moran-Alleen Co. v. Brown,

123 So. 561 (Fla. 1929). Brown supported this statement with citations to well-

established law that, independently, a grossly inadequate bid is an insufficient

reason to set aside a sale unless it is connected with or results from the other

factors. Id. (citing Macfarlane v. Macfarlane, 39 So. 995, 998 (Fla. 1905), etc.).

1

Accordingly it is clear that one of the grounds Brown mentions - a grossly

inadequate price - cannot alone justify setting aside a sale. See, e.g., id.: Arlt v.

Buchanan, 190 So. 2d 575 (Fla. 1966).

Nonetheless in Arsali the Fourth District concludes that the other four

grounds can independently, or standing alone, warrant setting aside a sale. Appx. 1

at 3. The court based its conclusion on the faulty Ingorvaia analysis and Brown 's

use of the phrase "any and all" in dictum when discussing the bases for setting

aside a sale. Appx. 1 at 3; Brown, 123 So. at 561. If "any and all" is to be taken

literally, then an inadequate bid must be an independent basis to set aside a sale on

its own just as the other factors. Brown, of course, made no such holding, which

would have been contrary to well-established precedent. See, e.g., Macfarlane, 39

So. 995; Lawyers Co-Op Pub. Co. v. Bennett, 16 So. 185 (1894). The Fourth

District's analysis and conclusion also render Arlt superfluous. The Arlt Court

would not have needed to consider the adequacy of the bid price if the other

applicable Brown factor -- a sale irregularity -- was enough independently to

justify setting aside the sale. See Arlt, 190 So. 2d at 577.

In defending the Fourth District's opinion, the Borrowers fail to address

Florida courts' consistent application of the law in a manner that refuses to set

aside sales for any single factor mentioned in Brown. Most cases citing Brown or

Arlt over the last century have rejected efforts to vacate sales. Until Arsali,

2

decisions approving such motions fell into only two categories: those involving a

court error, or those involving an inadequate bid combined with another factor

such as a sale irregularity or mistake. See cases cited in Init. Brf. at 15-17,

including those cited by Borrowers (Ans. Brf. at 8-9): U-M Publishing, Inc. v.

Home News Publishing Co., Inc. 279 So. 2d 379 (Fla. 3d DCA 1973) (sale set

aside due to court errors); and Ingorvaia v. Horton, 816 So. 2d 1256, 1257 (Fla. 2d

DCA 2002) (court failed to send notice of sale to plaintiff).

The Borrowers' reliance on Phoenix Holding serves them no better. The

court there held that it was a gross abuse of discretion to set aside a sale and final

judgment based on the borrowers' failure to receive certain notices. Phoenix

Holdings, LLC v. Martinez, 27 So. 3d 791, 792-93 (Fla. 3d DCA 2010). As the

appellate court explained, neither fairness, benevolence, nor compassion justify

setting aside a valid sale. Id. at 793. "[T]he courts of equity [do not] have any

right or power under the law of Florida to issue such order it considers to be in the

best interest of 'social justice' at the particular moment without regard to

established law.'" Id. quoting Flagler v. Flagler, 94 So. 2d 592, 594 (Fla. 1957).

Until Ingorvaia and Arsali, the courts did not perceive any inconsistency

between Brown and Arlt and did not set aside sales solely for reasons such as

mistakes or sale irregularities. Even Ingorvata involved an error by the court, not

by one of the parties. Ingorvaia, 816 So. 2d at 1257 (court failed to provide notice

3

of sale to plaintiff). The Fourth District's faulty analysis and conclusion are setting

dangerous precedent, as shown by Josecite v. Wachovia, -- So. 3d --, 2012 WL

3758648 (Fla. 5* DCA Aug. 31, 2012) (reversing refusal to vacate sale on basis

that bank failed to put foreclosure action on hold pursuant to forbearance

agreement). This Court should reverse Arsali and halt an emerging trend that

vacates valid sales solely for unilateral mistakes.

II. THE FOURTH DISTRICT'S CERTIFIED QUESTION SHOULD BEREPHRASED AND ANSWERED IN THE NEGATIVE.

Unlike the Fourth District's certified question, Petitioner's rephrased

question gets to the heart of the issue in this case - can a unilateral mistake justify

setting aside a properly conducted sale with an adequate bid price? The

Borrowers' argument that this rephrased question contradicts Brown or courts'

equitable discretion is based on the Fourth District's faulty reasoning. See Ans.

Brf. at 14-19. Brown never said that an inadequate bid, or a mistake, or any other

factor, on its own, justifies setting aside a sale. Brown 's actual holding was that

the plaintiffs failed to prove any of the grounds they alleged, including an

inadequate bid. Brown, 123 So. at 561. Thus the proposition that a sale cannot be

set aside for a unilateral mistake is not contrary to Brown.

According to the Borrowers, a negative answer to the rephrased question

would be "draconian" and take away trial courts' wide discretion. Ans. Brf. at 10-

13. They claim that refusing to permit sales to be set aside for unilateral mistakes

4

would "ignore the equities as it relates to homeowners losing their home through

no fault of their own" due to a "tragic mistake." Ans. Brf. at 10-12. First, the

Borrowers overstate their victimhood in this case. See Phoenix Holdings, 27 So.

3d at 792 (borrowers provided no true defense to mortgage foreclosure but merely

pled their victimhood in various ways). It can hardly be said that the sale of this

property occurred "through no fault" of the Borrowers. See Ans. Brf. at 10. It was

the Borrowers who defaulted on their mortgage loan in the first place; they did not

successfully defend against the foreclosure action; they did not appeal the

foreclosure judgment; they did not redeem the property during the eight months

between the judgment and the sale; and despite notice of the sale they apparently

did not check to see if the bank cancelled the sale as promised. Appx.2, 3.

Although performing loans are surely better than defaulted ones, the time to

bring loans into performance is before the foreclosure judgment. Once parties

resort to the courts, they must follow the legal process and precedent. That process

includes opportunities to avoid a foreclosure judgment either by a meritorious

defense or through reinstatement or other settlement with the lender. After

judgment, borrowers have yet another chance to save their homes, by way of

redemption. See § 45.0315, Fla. Stat. (2011). Absent such occurrences, the law

provides for the property to be sold to the highest bidder absent some intervention

by the court. If this scenario warrants setting aside a judicial sale, the floodgates

5

will open to any manner of belated attempts to avoid foreclosure judgments and

sales for reasons having nothing to do with the sale process itself. Neither policy

nor precedent supports vacating sales in such circumstances. Init. Brf. at 18-21;

Long Beach Mtg. Co. v. Bebble, 985 So. 2d 611, 613 (Fla. 4'' DC 2008) ("To

establish a precedent that encourages easy setting aside of foreclosure sales 'would

be to destroy the incentive which prompts bidding at [a] sale and thereby work a

hardship on both debtors and creditors.'").

Second, the Borrowers' alarm about the demise of equitable discretion is

misplaced. Discretion always has limits. See Sulkowski v. Sulkowski, 561 So. 2d

416, 418 (Fla. 2d DCA 1990) (trial court's discretion in setting aside sale must be

based upon a cause which is adequate to justify the equitable relief). The

Borrowers contend courts have set aside sales for unilateral mistakes, but claim it

is of "no moment" that these cases also involved inadequate bids. Ans. Brf. at 11-

12 citing Van Delinder v. Albion Realty & Mtg., Inc., 287 So. 2d 352 (Fla. 3d DCA

1973): Fernandez v. Suburban Coastal Corp., 489 So. 2d 70 (Fla. 4th DCA 1986);

United Companies Lending Corp. v. Abercrombie, 713 So. 2d 1017 (Fla. 2d DCA

1998). The distinction, of course, is of great moment. It shows that for at least a

century, courts have consistently interpreted the law and exercised their equitable

discretion against setting aside sales solely for unilateral mistakes or similar factors

unconnected to the bid price. See cases cited in Init. Brf. at 15-17. This includes

6

the Sulkowski case the Borrowers cite, which specifically held that a unilateral

mistake, without more, was an insufficient basis to set aside a sale. Sulkowski, 561

So. 2d at 418. Respondents have not cited any reported Florida decision setting

aside a properly-conducted judicial sale, which resulted in an adequate bid, based

solely on a party's unilateral mistake. That is, until the erroneously-decidedArsali

opinion, which has now been followed in Josecite.

Setting aside sales merely for unilateral mistakes resembles making

decisions based on general notions of fairness, sympathy, or benevolence, rather

than on the law. Equity has never countenanced such an approach. See Phoenix

Holdings, 27 So. 3d at 792-93; Republic Fed. Bank, N.A. v. Doyle, 19 So. 3d 1053,

1054 (Fla. 3d DCA 2009) (benevolence or compassion do not constitute lawful,

cognizable bases for granting relief to one side to detriment of other). Although

the Borrowers paint Petitioner as some type of interloper whose rights are

insignificant, foreclosure sale purchasers are integral to the entire process and their

rights and interests warrant full consideration. See LR5A-JV v. Little House, LLC,

50 So. 3d 691, 695 (Fla. 5th DCA 2010) (court considers all parties' interests;

judgment holder alone does not have right to control if and when sale takes place);

Avi-Isaac v. Wells Fargo Bank, N.A., 59 So. 3d 174, 177 (Fla. 2d DCA 2011)

(foreclosure sale purchaser entitled to notice and opportunity to be heard at

evidentiary hearing on motion to vacate sale); Bebble, 985 So. 2d at 613 (standard

7

to set aside foreclosure sales is narrow to ensure competitive market in sale

process); Action Realty & Invest. Inc. v. Grandison, 930 So. 2d 674, 677 n.1 (Fla.

4* DCA 2006) (vacating sale for negligence would prevent innocent foreclosure

sale purchaser from deriving benefit of investment through no fault of it), receded

from by Arsali.

This Court should reverse Arsali and answer the rephrased certified question

in the negative and hold that a properly conducted sale that results in adequate bid

price cannot be vacated solely for a mistake or other single factor. Doing so will

merely confirm well-established law and enable courts to continue exercising their

discretion in evaluating whether a combination of factors warrants setting aside a

sale in any particular case.

III. THERE WAS NO BASIS TO SET ASIDE THE FORECLOSURESALE OR JUDGMENT IN THIS CASE.

According to the Borrowers, Petitioner erroneously overstates the law by

asserting their loan could not be reinstated after the final foreclosure judgment.

Ans. Brf. at 14. Petitioner's point was that Chase never had the unilateral right to

cancel the sale in the first place because the parties cannot "reinstate" a loan that

merged into a final judgment and no longer exists. Init. Brf. at 22-24. The One

79'* Street decision that the Borrowers rely on confirms this. One 79'^ Street

Estates, Inc. v. Am. Inv. Svcs., 47 So. 3d 886, 889 (Fla. 3d DCA 2010); see also

JPMorgan Chase Bank, N.A. v. Hernandez, -- So. 3d --, 2011 WL 2499641 (Fla.

8

3d DCA Jun. 22, 2011) (same); Matter of Boromei, 83 B.R. 74, 76-77 (Bankr.

M.D. Fla. 1988) (generally Florida law does not permit reinstatement of mortgage

after acceleration; debtor does not have right to cure default and reinstate mortgage

after foreclosure judgment).

It is true that a court can effect a post-judgment reinstatement if it vacates

the foreclosure judgment. This requires a valid reason to vacate the judgment in

the first place. See, e.g., One 79'* Street, 47 So. 3d at 889 n.4 (confirms

reinstatement can occur only after final judgment vacated). Such reasons include

excusable neglect leading to the entry of the judgment, newly-discovered evidence,

fraud, satisfaction of the judgment, etc. Fla. R. Civ. P. 1.540; Bank ofAmerica,

N.A. v. Lane, 76 So. 3d 1007, 1008 (Fla. 1" DCA 2011) (trial court is restricted in

providing relief from judgments to limited number of grounds set forth in Fla. R.

Civ. P. 1.540). The Borrowers never alleged a basis for, or even requested such

relief, so it was improper for the court to vacate the final judgment. See Appx. 4;

Lane, 76 So. 3d at 1009 (error to set aside judgment based on excusable neglect

where such issue was not presented by pleadings, noticed for hearing, or litigated

by parties). Even if the Borrowers had asked for such relief, a post-judgment

attempt at reinstatement does not fall within any of the permissible bases for

vacating a valid judgment.

Thus Chase had no authority to direct the clerk of court to cancel the sale

9

even if it had tried to do so, which it did not. Only redemption would have

permitted a cancellation of the sale and that never occurred here. See § 45.0315,

Fla. Stat. (2011) (party may cure indebtedness and prevent foreclosure sale by

paying amount of monies specified in the foreclosure judgment). As a result, the

trial court's after-the-fact vacation of the final judgment did not cure its error in

vacating the sale based on Chase's inaction.

The Borrowers urge this Court to disregard the trial court's handling of the

judgment because Petitioner did not complain about it in the lower courts. Ans.

Brf. at 15-16. The trial court's unsolicited vacation of a final judgment without

notice, and without any valid basis, which in turn was used to justify vacating a

proper sale, is in the nature of a fundamental error that can be raised at any time.

See Hooters ofAmerica, Inc. v. Carolina Wings, Inc., 655 So. 2d 1231, 1235 (Fla.

1"' DCA 1995) (adequate notice is fundamental element of due process; argument

that plaintiff was not entitled to greater damages than those pled in complaint met

test of fundamental error and was considered for first time on appeal); Dillingham

v. Dillingham, 667 So. 2d 337, 338 (Fla. 1"' DCA 1995) (order adjudicating issues

not raised by pleadings nor litigated is voidable on appeal). In any event, having

accepted jurisdiction of this case, the Court can consider any issue affecting it.

State v. T.G., 800 So. 2d 204, 211 n.4 (Fla. 2001); PK Ventures, Inc. v. Raymond

James & Assoc., Inc., 690 So. 2d 1296, 1297 n.2 (Fla. 1997).

10

More importantly, Petitioner is not asking this Court to reverse on the basis

of the trial court's erroneous vacation of the final judgment. Petitioner raised the

issue to show another flaw in the Fourth District's decision. In holding it was

proper to vacate this sale, under its own analysis the Fourth District must have

assumed the parties' purported loan reinstatement and failure to cancel the sale fell

within the "four independent grounds" discussed in Brown. See Appx.1 at 3, 5.

Those grounds are surprise, accident, or mistake imposed on complainant, and

irregularity in the conduct of the sale. See Brown, 123 So. at 561. What occurred

in this case falls within none of those categories.

At best Chase's failure to cancel the foreclosure sale could be considered a

mistake. Yet this assumes the bank had authority to cancel the sale in the first

place; it did not. Even if Chase had asked permission, there were no grounds for

vacating the judgment in order to reinstate the loan and cancel the sale. As a

result, it cannot have been a "mistake" for the sale to proceed as noticed. Even if

these circumstances constituted a mistake, without something more such as a

grossly inadequate bid, well-established law did not permit vacating the sale.

This means the trial court vacated the sale for some reason the law does not

recognize, such as sense of "fairness" or for another purely benevolent reason.

This is impermissible. See Phoenix Holdings, 27 So. 3d at 792-93; Republic Fed.

11

Bank, 19 So. 3d at 1054. Thus the Fourth District erred in concluding it was

proper under Brown (or any other precedent) to vacate the sale in this case.

IV. THE LOWER COURT SHOULD HAVE CONDUCTED ANEVIDENTIARY HEARING ON THE MOTION TO SET ASIDE THESALE.

According to the Borrowers, no evidentiary hearing was required because

the motion to set aside was properly noticed for a UMC hearing and Petitioner's

ability to object to the motion was limited. Ans. Brf. at 16-17. Petitioner had the

right to challenge the Borrowers' motion in an evidentiary hearing. See Avi-Isaac,

59 So. 3d at 177 (purchaser at foreclosure sale entitled to notice and opportunity to

be heard at evidentiary hearing on motion to vacate sale; submission of affidavits

and argument of counsel do not constitute an evidentiary hearing). The UMC

hearing that occurred here did not meet that requirement as the Borrowers

submitted only unverified documents and arguments of counsel, not evidentiary

proof. See id: John Crescent, Inc. v. Schwartz, 382 So. 2d 383 (Fla. 4* DCA 1980)

(court can vacate judicial sale only if requisite degree of proof establishes grossly

inadequate price coupled with exceptional circumstances set forth in Arlt); Blimpie

Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838, 840 (Fla. 2d

DCA 1994) (unsworn motion does not warrant vacating facially proper fmal

judgment absent stipulation; court cannot make factual determination based on

attorney's unsworn statements); Chancey v. Chancey, 880 So. 2d 1281, 1282 (Fla.

12

2d DCA 2004) (if Rule 1.540 motion alleges colorable entitlement to relief court

should conduct limited evidentiary hearing); cf Bilfuco v. State Farm Mut. Auto.

Ins. Co., 693 So. 2d 707, 709 (Fla. 4* DCA 1997) (documents attached to motion

for summary judgment that were not sworn, certified, or accompanied by affidavit

were inadmissible and could not be considered). The Borrowers do not distinguish

or even mention the foregoing law.

The Borrowers also claim an evidentiary hearing was unnecessary because

neither they nor Chase disputed the fact of the reinstatement or the desire to set

aside the sale. Ans. Brf. at 17. Petitioner, however, did dispute setting aside the

sale; that was the only purpose for intervening in the case. Therefore he was

entitled to an evidentiary hearing to dispute the factual allegations and legal basis

in the Borrowers' motion. Avi-Issac, 59 So. 3d at 177 (foreclosure sale purchaser

entitled to notice and opportunity to be heard at evidentiary hearing on motion to

vacate sale). The suggestion that Petitioner was limited to asserting his right to the

res confirms his standing to challenge the attempt to preclude him from obtaining

title to the property (i.e., the res). See Ans. Brf. at 17. The Fourth District erred in

holding no evidentiary hearing was required.

CONCLUSION

The Court should reverse the District Court's decision affirming the lower

court's order setting aside the sale and fmal judgment. The lower court's order

13

should be vacated, the final judgment of foreclosure reinstated, and certificates of

sale and title issued in Petitioner's name.

Respectfully submitted,

Beth M. Coleman, Esq.Florida Bar No.: 903973Beth M. Coleman, P.A.P.O. Box 7280St. Petersburg, FL 33734(727) 526-1220beth@bmc-legal.com

CERTIFICATE OF SERVICE AND COMPLIANCE

I HEREBY CERTIFY that a copy of the foregoing has been served by emailthis 9th day of October, 2012, upon: Joseph D. Wargo and Ryan David Watstein,Esq., Wargo French, at JWargo@wargofrench.com andRWatstein@wargofrench.com; and Marshall C. Osofsky, Esq., Law Office of PaulA. Krasker, P.A., at mosofsky@kraskerlaw.com.

I HEREBY CERTIFY that the font type and size used in this brief is TimesNew Roman 14 point. The undersigned certifies that this font complies with therequirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.

Beth M. Coleman, Esq.

14