Opinion
No. 2D21-935
02-09-2022
Karin ROHRET, Appellant, v. ANTHONY ZUCCO, N.A., Appellee.
Christopher Hixson of Consumer Law Attorneys, Clearwater, for Appellant. No appearance for Appellee.
Christopher Hixson of Consumer Law Attorneys, Clearwater, for Appellant.
No appearance for Appellee.
NORTHCUTT, Judge.
Karin Rohret appeals both a final judgment of foreclosure and an order overruling her objection to the sale conducted pursuant to the judgment and denying her motion to vacate it. We affirm the foreclosure judgment without further comment, but we reverse the order on the objection and motion to vacate the sale.
The foreclosure sale at issue here took place before the circuit court disposed of Rohret's timely and authorized motion for rehearing of the foreclosure judgment. "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." Lowenstein v. U.S. Bank Nat'l Ass'n for Credit Suisse First Boston MBS Heat 2004-4 , 253 So. 3d 86, 87 (Fla. 2d DCA 2018) (quoting 944 CWELT–2007 LLC v. Bank of Am., N.A. , 194 So. 3d 470, 471 (Fla. 3d DCA 2016) ). Consequently, the sale in this case cannot stand.
Moreover, the circuit court's postsale entry of an order denying Rohret's motion for rehearing "nunc pro tunc" to a date preceding the sale did not rectify the defect. "A court may enter an order nunc pro tunc to correct the record of an order [a]ctually made, which was either entered incorrectly in the court records or not entered at all." In re Riha's Estate , 369 So. 2d 404, 404 (Fla. 2d DCA 1979) (citing De Baun v. Michael , 333 So. 2d 106 (Fla. 2d DCA 1976) ). Here, the record reflects no attempt to rule on the motion for rehearing before the sale occurred. And "when the court wholly omits an order or wishes to change it, the new order cannot be entered nunc pro tunc." Id. ; see also Rodriguez v. Palm Beach Cnty. Div. of Animal Care & Control , 988 So. 2d 738 (Fla. 4th DCA 2008) (holding it was error to enter a nunc pro tunc order on a motion to transfer when the court had not ruled on the motion in the year it had been pending). Consequently, adding the phrase "nunc pro tunc" to the order denying the motion for rehearing could not alter the fact that the sale was fatally premature.
Therefore, we affirm the final judgment of foreclosure, but we reverse the order overruling Rohret's objection to the foreclosure sale and denying her motion to vacate it. We remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
MORRIS, C.J., and SILBERMAN, J., Concur.