JEFFREY LOWENSTEIN AND VICTORIA LOWENSTEIN v. U. S. BANK NATIONAL ASSOCIATION

253 So. 3d 86

• Court: District Court of Appeal of Florida
• Decided: August 8, 2018
• Docket: 16-4252
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

VICTORIA L. LOWENSTEIN & ) JEFFREY B. LOWENSTEIN, ) ) Appellants, ) ) v. ) Case No. 2D16-4252 ) U.S. BANK NATIONAL ASSOCIATION, ) AS TRUSTEE FOR CREDIT SUISSE ) FIRST BOSTON MBS HEAT 2004-4. ) ) Appellee. ) )

Opinion filed August 8, 2018.

Appeal from the Circuit Court for Pasco County; William H. Burgess, II, Judge.

Dineen Pashoukos Wasylik and Jared M. Krukar of DPW Legal, Tampa, for Appellants.

Michele L. Stocker of Greenberg Traurig, P.A., Ft. Lauderdale; and M. Hope Keating, and Karusha Y. Sharpe of Greenberg Traurig, P.A., Tallahassee, for Appellee.

KELLY, Judge. Victoria1 and Jeffrey Lowenstein appeal from the final judgment of

foreclosure, the order denying their motion for rehearing and to set aside judgment, and

the "Final Order on All Defendants' Motions." We affirm the final judgment of

foreclosure but reverse the portions of the Final Order that deny the objection to the

foreclosure sale, the motion to vacate the October 22, 2015, foreclosure sale, and the

motion to vacate the order directing the Clerk of Court to issue the certificate of title and

disburse funds.

"It is well settled that a foreclosure sale cannot be held while a timely

motion for rehearing is pending because enforcement of a final judgment is suspended

by the filing of the rehearing motion." 944 CWELT–2007 LLC v. Bank of Am., N.A., 194

So. 3d 470, 471 (Fla. 3d DCA 2016); see also Hoffman v. BankUnited, N.A., 137 So. 3d

1039, 1039 (Fla. 2d DCA 2014) (setting aside the foreclosure sale of property because

the sale was conducted while Hoffman's timely motion for rehearing was pending); Diaz

v. U.S. Bank, N.A., 239 So. 3d 151, 152 (Fla. 3d DCA 2018), review denied, No. SC18-

306, 2018 WL 2684471 (Fla. June 5, 2018) (holding that the mortgagors were entitled to

vacation of the foreclosure sale that was conducted while the mortgagors' motion for

rehearing of the foreclosure judgment remained pending). Here, the foreclosure sale

was conducted while the Lowensteins' motion for rehearing remained pending.

Therefore, we reverse the Final Order and remand with instructions for the trial court to

1The appellants' counsel filed a suggestion of death informing this court that Victoria Lowenstein died on May 18, 2018. Ms. Lowenstein's death does not affect the disposition of this appeal. See Colucci v. Colucci, 309 So. 2d 67 (Fla. 2d DCA 1975); Variety Children's Hosp., Inc. v. Perkins, 382 So. 2d 331, 336 (Fla. 3d DCA 1980).

-2- set a new foreclosure sale date and for further proceedings consistent with this opinion.

In all other respects, we affirm.

Affirmed in part; reversed in part with directions.

SILBERMAN and MORRIS, JJ., Concur.

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