This objection to foreclosure sale was sustained by Judge Lazarus in the 17th Judicial Circuit. The objection was to a procedure used in many foreclosure sales throughout Florida. The objection could potentially be used in hundreds or thousands of foreclosures, eventually forcing changes to the procedures used for foreclosure sales.
This objection to foreclosure sale was sustained by Judge Lazarus in the 17th Judicial Circuit. The objection was to a procedure used in many foreclosure sales throughout Florida. The objection could potentially be used in hundreds or thousands of foreclosures, eventually forcing changes to the procedures used for foreclosure sales.
This objection to foreclosure sale was sustained by Judge Lazarus in the 17th Judicial Circuit. The objection was to a procedure used in many foreclosure sales throughout Florida. The objection could potentially be used in hundreds or thousands of foreclosures, eventually forcing changes to the procedures used for foreclosure sales.
This objection to foreclosure sale was sustained by Judge Lazarus in the 17th Judicial Circuit. The objection was to a procedure used in many foreclosure sales throughout Florida. The objection could potentially be used in hundreds or thousands of foreclosures, eventually forcing changes to the procedures used for foreclosure sales.
17 th J UDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
J AMES D. EVANS, CASE NO. CACE 11-006244(11)
Plaintiff,
vs.
STUART FINKELSTEIN AND EVELYN FINKELSTEIN a/k/a EVELYN COOPER FINKELSTEIN, husband and wife, COUNTRY GLEN ASSOCIATION, INC., KING MOTOR COMPANY OF SOUTH FLORIDA, INC. and BEST VALET, LLC,
DEFENDANTS STUART FINKELSTEIN, EVELYN FINKELSTEIN, AND BEST VALET, LLCs OBJECTION TO FORECLOSURE SALE
COME NOW, Defendants STUART FINKELSTEIN and EVELYN FINKELSTEIN (Collectively referred to as Finkelstein Defendants), by and through undersigned counsel, and pursuant to 45.031, Florida Statutes, and hereby file this Objection to Foreclosure Sale, and as grounds therefore state as follows: 1. Defendants Stuart Finkelstein and Evelyn Finkelstein are the owners of the real property located at 13255 Lakeside Terrace, Cooper City, FL 33330, and described as Lot 8, Block 7, of Country Glen, according to the Plat thereof, as recorded in Plat Book 154, Page 49 of the Public Records of Broward County, Florida. 2. A foreclosure sale was held on J uly 16, 2014, for the above described property. 3. Finkelstein Defendants object to the sale in that the procedures utilized for the sale were and are inherently faulty and resulted in a noncompetitive and unreasonable auction.
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4. This case highlights the problems inherent in the current foreclosure auction system due to the following facts and circumstances. 5. Prior to the sale date, a potential purchaser entered into a short sale agreement to purchase the property for $400,000.00. A copy of the short sale contract is attached hereto as Exhibit 1. 6. As a short sale, the contract was subject to Evans approval, and Evans rejected the short sale contract. 7. However, the contract demonstrates that a 3 rd party was willing to pay $400,000.00 for the property. 8. The property actually sold for $5,200.00 at the foreclosure sale. Attached hereto as Exhibit 2 is a printout of the foreclosure auction website showing the auction information. 9. Evans had a maximum bid of $555,000 recorded in the foreclosure sale online system, and said max bid was visible to anyone viewing that page of the foreclosure system website, including potential bidders. Evans max bid of $555,000.00 was different from the amount of the judgment in that the judgment amount was greater than the listed max bid. 10. There are 2 other ways that a plaintiffs max bid is listed: (1) the amount of the judgment exactly matches the amount of the max bid, or (2) the amount of the max bid is hidden. 11. Finkelstein Defendants maintain that this case demonstrates that the system of displaying a plaintiffs max bid, and allowing a plaintiff to automatically bid over anyone bidding under that max bid, is unreasonable and leads to noncompetitive auctions that result in unfairly low sales prices. 12. In order for foreclosure sales to be reasonable, the auctions must be competitive. In order to be competitive, plaintiffs max bid should either not be disclosed, or the system
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should not permit automatic bidding by plaintiffs with the first option being more crucial for the existence of a fair system. 13. In this case, it is quite possible that the same 3 rd party who attempted to purchase the property via short sale (or another 3 rd party) might have bid at the foreclosure sale. However, the listing of plaintiffs max bid gives notice that any bid under $555,000.00 will not be a winning bid. As a result, bidding is futile, and plaintiffs are permitted to scare away bidders before they begin bidding. 14. Were a plaintiffs max bid not visible, in this case, the property could have very well sold for more than $400,000.00. Evans may have been forced to outbid someone bidding $400,000.00. Instead, Evans was able to avoid competition by posting a max bid that would outbid any lower bid automatically up to $555,000.00. 15. The result is a noncompetitive auction process in which sales prices are frequently unreasonably low. 16. If the automatic bidding did not exist, a portion of the problem would be solved in that potential bidder in a foreclosure sale may bid to see whether someone else is bidding (in other words, plaintiffs should be forced to actively bid, rather than passively). 17. However, a max bid amount different from the judgment amount has its own chilling effect in that other potential bidders may assume that a plaintiff will bid up to that amount (even assuming that automatic bidding did not exist). 18. For the above reasons, in order for a foreclosure sale to be fair and reasonable, a plaintiffs max bid should not be visible to potential bidders.
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19. Any potential bidder knows from the amount of the judgment what he or she is potentially up against. However, a plaintiff could decide not to bid at all or might stop far short of the judgment amount. Uncertainty creates competitive bidding. 20. The lack of competitive bidding, and the process tainted by it, is very important for a number of reasons. 21. Firstly, pursuant to 45.031(8), Florida Statutes (2013), The amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale. 22. Secondly, pursuant to the same subsection of the same statute, the sale price may be considered as a factor when the Court is making a determination of the value of the property upon a Motion for Deficiency J udgment. 23. Considering the legal implications of a foreclosure sale price, the process is very important. As presently carried out, the foreclosure auction process is unfair and noncompetitive. While 45.031(10), Florida Statutes (2013) permits a clerk to accept an electronic proxy bid from a plaintiff, there is nothing in the statute that requires or permits this information to be disclosed to the public before the foreclosure auction. The practice of disclosing said bid makes any such auction conducted in that manner inherently unreasonable, unfair, and ultimately noncompetitive.
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WHEREFORE, Defendants STUART FINKELSTEIN, EVELYN FINKELSTEIN and BEST VALET, LLC respectfully request that this Honorable Court sustain their objection, vacate the sale of the property in this case, order that a new foreclosure sale be held in a fair and reasonable manner, and grant any other relief that may be just and proper. Respectfully submitted,
THE GOSZ PROFESSIONAL LIMITED COMPANY Counsel for Finkelstein Defendants and Best Valet, LLC 2 S. Biscayne Blvd., Ste. 3760 Miami, FL 33131 Telephone: 305.505.6340 Facsimile: 866.860.9122
By: s/J oseph R. Gosz J OSEPH R. GOSZ Fla. Bar No. 570311 [email protected]
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Notice of Appeal was served via e-mail this 25th day of J uly, 2014, upon the following parties/individuals, pursuant to the Florida Rules of Civil Procedure and the Florida Rules of J udicial Administration: 1. Robert T. Slatoff, Esq. ([email protected]), Frank, Weinberg & Black, P.L., Counsel for Plaintiff, 1875 NW Corporate Blvd Ste 100, Boca Raton, Florida 33431. 2. Mark D. Cohen ([email protected]), Mark D. Cohen, P.A., former Counsel for Stuart Finkelstein, Evelyn Finkelstein, and Best Valet, LLC, Presidential Circle, Ste. #435 So., 4000 Hollywood Blvd., Hollywood, FL 33021. 3. Charles F. Otto, Esq. ([email protected]), Straley and Otto, P.A., Counsel for Defendant Country Glen Association, Inc., 2699 Stirling Rd, Fort Lauderdale, FL 33312. s/J oseph R. Gosz
Quantum of Justice - The Fraud of Foreclosure and the Illegal Securitization of Notes by Wall Street: The Fraud of Foreclosure and the Illegal Securitization of Notes by Wall Street