Florida appeal court reverses foreclosure dismissal as 'sanction' against New York bank

By Karen Kidd | May 31, 2019

TALLAHASSEE (Florida Record) — A foreclosure action dismissed as a "sanction" against a bank for not obeying court orders is on its way back to Bay County after a state appeal court reversed the dismissal.

In its five-page decision issued May 13, a Florida First District Court of Appeal three-judge panel reversed Bay County Circuit Court Judge Elijah Smiley's dismissal of the foreclosure action of the appellees, borrowers in the case. The lower court had dismissed the foreclosure "as a sanction for its noncompliance with court orders," the appeal court decision said.

In its remand, the appeal court also had advice for the lower court, as well as parties in the case.

"We encourage the trial court [and the parties] to conduct such proceedings as expeditiously as possible because this case has been pending for more than seven years and the parties have spent an inordinate amount of that time focused on the adequacy of the mediation process rather than the merits of the case," the decision noted. "Indeed, from our review of the record, there does not appear to be any reason that this case cannot be promptly tried upon remand."

Florida First District Court of Appeal Judge T. Kent Wetherell II   1dca.org

Appeal Court Judge T. Kent Wetherell II wrote the decision in which judges James R. Wolf and Scott Makar concurred.

Appellant Bank of New York Mellon was represented by Nancy M. Wallace of Akerman LLP in Tallahassee, William P. Heller of Akerman LLP in Fort Lauderdale and Eric M. Levine of Akerman LLP of West Palm Beach. The appellees, borrowers in the foreclosure case, were represented by Jeffrey P. Whitton of Whitton Law in Panama City.

The bank argued in its appeal that Smiley's dismissal order had been deficient because it dismissal was not justified as a sanction, according to the background portion of the appeal court's decision. The bank also argued that Smiley lacked authority to enter the dismissal order because he did not preside during on the borrowers' motion for sanctions.

The bank also said it complied with the lower court's orders on which the motion for sanctions had been based.

"We find it unnecessary to address the sufficiency of the dismissal order or Judge Smiley's authority to enter the order because the record clearly establishes that the bank complied with the specific orders on which the motion for sanctions was based," the decision said.

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