Bankers Trust Co. of California v. Weidner

District Court of Appeal of Florida

Bankers Trust Co. of California v. Weidner

688 So. 2d 453, 1997 Fla. App. LEXIS 1807, 1997 WL 82568

CourtDistrict Court of Appeal of Florida

DecidedFebruary 28, 1997

DocketNo. 97-195

StatusPublished

Cited by4 cases

This text of 688 So. 2d 453 (Bankers Trust Co. of California v. Weidner) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bankers Trust Co. of California v. Weidner, 688 So. 2d 453, 1997 Fla. App. LEXIS 1807, 1997 WL 82568 (Fla. Ct. App. 1997).

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Opinion

HARRIS, Judge.

Bankers Trust Co. of California, N.A. successfully obtained a summary judgment of foreclosure of the property involved in this action. A foreclosure sale was set for December 19, 1996. There is no question that the summary judgment was properly entered. The mortgagor, however, died on December 3, 1996 leaving two children. Her father moved to be appointed guardian of the minor child and petitioned the court to stay the foreclosure sale for at least 90 days. The court went him one better and granted the stay indefinitely. Bankers Trust seeks cer-tiorari; we grant it and reverse.

The sole reason stated for the stay is that the guardian needs “to see if the assets of the minor child can be preserved by sale of the homestead, rather than loss of the homestead by foreclosure.” There are no allegations that the property value exceeds the amount of the judgment nor is there any requirement that any security be given for the stay or that the property be insured or even maintained by the guardian during the period of the stay. The court has stayed indefinitely the enforcement of a mortgage merely on the offhand chance that there may be equity in the property in excess of the debt. This petition and the time to reschedule a new sale has already given the guardian in excess of 60 days to make that determination. That is time enough.

We grant the writ of certiorari and direct the trial court to reschedule the foreclosure sale.

COBB and GOSHORN, JJ., concur.

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HARRIS, Judge.

Bankers Trust Co. of California, N.A. successfully obtained a summary judgment of foreclosure of the property involved in this action. A foreclosure sale was set for December 19, 1996. There is no question that the summary judgment was properly entered. The mortgagor, however, died on December 3, 1996 leaving two children. Her father moved to be appointed guardian of the minor child and petitioned the court to stay the foreclosure sale for at least 90 days. The court went him one better and granted the stay indefinitely. Bankers Trust seeks cer-tiorari; we grant it and reverse.

The sole reason stated for the stay is that the guardian needs “to see if the assets of the minor child can be preserved by sale of the homestead, rather than loss of the homestead by foreclosure.” There are no allegations that the property value exceeds the amount of the judgment nor is there any requirement that any security be given for the stay or that the property be insured or even maintained by the guardian during the period of the stay. The court has stayed indefinitely the enforcement of a mortgage merely on the offhand chance that there may be equity in the property in excess of the debt. This petition and the time to reschedule a new sale has already given the guardian in excess of 60 days to make that determination. That is time enough.

We grant the writ of certiorari and direct the trial court to reschedule the foreclosure sale.

COBB and GOSHORN, JJ., concur.

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688 So. 2d 453, 1997 Fla. App. LEXIS 1807, 1997 WL 82568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bankers-trust-co-of-california-v-weidner-fladistctapp-1997.

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