Wilmington Trust Company v. Pearce et al

Filing 24

ORDER: Plaintiff's Unopposed Motion to Confirm Foreclosure Sale, Certificate of Title, Writ of Possession, and Related Relief (Doc. # 22) is GRANTED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 6/14/2018. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILMINGTON TRUST COMPANY
AS TRUSTEE FOR STRUTURED
ASSET SECURITIES CORPORATION
2005-4XS TRUST FUND,
Plaintiff,

Case No.: 8:16-cv-3531-T-33TGW

v.
DAVID ALEXANDER PEARCE,
KRISTI PEARCE, A/K/A
KRISTI DARLENE LYNCH,
SERGIO MORENO, and
MORTAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendants.
__________________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Wilmington Trust Company’s Motion to Confirm Foreclosure Sale,
Certificate of Title, Writ of Possession, and Related Relief (Doc.
# 22), filed on May 30, 2018. In the Motion, Plaintiff explains
that the Pearce Defendants do not oppose the Motion.

Defendant

Mortgage Electronic Registration Systems, Inc. (“MERS”) failed to
appear in this action and is in default. (Doc. # 17).

Defendant

Sergio Moreno has been dropped from the litigation. (Doc. # 20 at
4). The Motion is unopposed and is accordingly granted as follows.

1

DISCUSSION
Plaintiff commenced this action on December 30, 2016, to
judicially foreclose a mortgage on real property, specifically:
Lot 12, Block S, Sun Haven, Unit No. 3, according to the
Plat thereof as recorded in Plat Book 9, Page 52, of the
public records of Sarasota County, Florida. Address:
5732 Beneva Road, Sarasota, Florida, 34231.
(Doc. # 1 at ¶ 7). The Complaint contained the following counts:
Establishment

of

Lost

Note

as

to

all

Defendants

(Count

1);

Equitable Lien and Equitable Mortgage as to all Defendants (Count
2); Constructive Trust as to all Defendants (Count 3); Judicial
Foreclosure of Real Property as to all Defendants (Count 4);
Possession and Assignment of Rents as to all Defendants (Count 5);
and Enforcement of Instruments as to David Pearce (Count 6).
On March 10, 2017, the parties entered into a stipulation to
resolve the case. (Doc. # 14).

On March 22, 2017, the Court

entered its Order of Final Consent Judgment and Default Judgment,
pursuant to the parties’ stipulation, determining that “by motion
after the sale, the Court will enter an order confirming the sale
of the property, conveying title to the purchaser at sale, which
shall be filed and recorded in the local land registry office,
with the same legal effect as a Certificate of Title or other
conveyance . . . Or the Special Master may execute a conveyance of
the property to [the] purchaser at sale.” (Doc. # 20 at 13).

2

The Court appointed James Chaplin, Esq. of Mediation Inc.,
and/or his designee, as the Special Master (Id. at 11) who was
authorized and directed to offer and sell the property for public
sale at the Sarasota County Courthouse. (Id.). A copy of the
affidavit of Publication confirms that the property was properly
advertised prior to the sale for four consecutive weeks in the
Business Observer before the scheduled sale date of March 12, 2018.
(Doc. # 22-1). The Special Master filed the required Report of
Foreclosure Sale on May 30, 2018, indicating that the sale was
conducted on March 12, 2018, at 4:00 p.m., and that Plaintiff
purchased the property with an opening and uncontested credit bid
of

$100.00.

(Doc.

#

22-2).

The

Special

Master

executed

a

Certificate of Title on May 23, 2018, reflecting Plaintiff as the
new owner of the property. (Doc. # 22-3).
Pursuant to the Final Consent Judgment and Default Judgment,
Plaintiff now moves the Court to confirm the foreclosure sale as
the new owner and to grant possession of the property. (Doc. # 22
at 4).

As previously noted, the Motion is unopposed. (Id. at 5).

Courts

have

broad

discretion

in

determining

whether

to

confirm or to vacate a judicial sale. See Citibank, N.A. v. Data
Lease

Fin.

Corp.,

645

F.2d

333,

339

(5th

Cir.

1981).

“Such

determinations ordinarily will not be disturbed except for an abuse
of discretion, recognizing the strong public policy in favor of
the finality of judicial sales.” JP Morgan Chase Bank, N.A. v.
3

Surek, No. 11-00263, 2013 U.S. Dist. LEXIS 205, at *3 (S.D. Ala.
Jan. 2, 2013). “Generally courts have adopted the policy that
confirmation will not be refused except for substantial reasons,
and that in the absence of fraud or misconduct, the highest bidder
will ordinarily be accepted as the purchaser of the property
offered for sale.” Id. (citing First Nat. Bank of Jefferson Parish
v. M/V Lightning Power, 776 F.2d 1258, 1261 (5th Cir. 1985)).
In

addition,

Rule

70(b)

of

the

Federal

Rules

of

Civil

Procedure provides that if real property is located within a
judicial district, the court may enter judgment divesting a party's
title and vesting it in others. The United States Supreme Court
has established that when a special master conducts a foreclosure
sale, confirmation of the sale is required as "a bidder at a sale
by a master, under a decree of court, is not considered a purchaser
until the sale is confirmed." Ballentyne v. Smith, 205 U.S. 285,
288 (1907). As shown by the record, the Court finds good cause to
confirm the foreclosure sale and convey title of the property to
Plaintiff.
Accordingly, it is now
ORDERED, ADJUDGED and DECREED:
(1) Plaintiff’s Unopposed Motion to Confirm Foreclosure Sale,
Certificate of Title, Writ of Possession, and Related Relief
(Doc. # 22) is GRANTED.

4

a. The Court confirms the foreclosure sale that Special
Master James Chaplin, Esq. of Mediation Inc. held on
March 12, 2018, at 4:00 p.m., at the Sarasota County
Courthouse.
b. The Special Master shall CONVEY a Certificate of Title
or Deed for the Property to Plaintiff, which shall be
recorded in the Official Records of Sarasota County,
Florida.

Upon recording of the Certificate of Title or

Deed, Plaintiff shall be let into possession of the
property.
DONE and ORDERED in Chambers, in Tampa, Florida this 14th day
of June, 2018.

5