and does not match the legal descriptino in the filed final summary judgement. This foreclsoure case can be dismissed, correct? property was sold at auction to a 3rd party and the plaintiff filed a motion to vacate, but then changed its mind when the 3rd party purchaser tried to keep the foreclosure case going. The actual defendants in the case (florida) filed a motion to dismiss due to the clerks error in the legal description published the notice of foreclosure sale. Please advise
An incorrect legal description in the Notice of Sale which was published would necesitate a new foreclosure sale. Due to the fact that the Notice of Sale was incorrect, the public, did not have an opportunity to bid on the property. This mistake does not dismiss the lawsuit or vacate the final judgment, however, it would force the Clerk to sell the property once more. If you are the current owner, you may have been given some extra time. If you would like extra time, I suggest hiring an attorney immediately to have the sale vacated,
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Good question. I had to look this up. If the advertisement, sale, and purchase was based on an incorrect legal description, then from the case I read, no and yes. No, the case should not be dismissed. Yes, the certicate of sale should be canceled or rescinded. The sale should be vacated or rescinded and the final judgment (or summary judgment--which is not a true final judgment) should be rescinded or vacated. The reason is that although the mortgagee (bank) might have know what property is was getting, a potential bidder might not have know what property is was getting. As a result the right of redemption kicks in for the homeowner again where they can buy back their interest in the property. It sounds like you are asking for someone else, which is nice of you, but whoever owned the house needs to be involved and seeking counsel. I mean what if they did not fight this at all and they got lucky at the last minute. It drives me crazy when homeowners ignore cases or walk away without a fight without even CHECKING to see if they have good defenses or not. The banks have to PROVE they own the loan. It is like the movie, "Training Day" , "it's not about what you know, it's about what you can prove." So if this homeowner needs to get help. THERE IS A GOOD CHANCE THAT THE COURT WILL THINK THAT IT CAN JUST CORRECT THE LEGAL DESCRIPTION. or that the bank's attorney will convince the judge that he or she can correct the typos. The case I read says the foreclosure starts anew. So, the judgment, sale, certificate have to be vacated and the summary judgement amended and possibly the complaint be amended. If the complaint is amended the homeowner has a chance to start defending all over again. Even if the complaint is fine, but the summary judgment is wrong, once the summary judgment gets vacated a attorney may be able to jump in quickly and start defending. But I'm giving guidance from a distance. Again, the homeowner needs to see a foreclosure defense attorney or a real estate attorney who goes to court.
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