THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWABS ASSET-BACKED CERTIFICATES, SERIES 2005-BC4 v. KEITH HENRY, ET AL.

The Sixth District Court of Appeal, sitting en banc, affirmed the trial court's denial of a foreclosure judgment holder's motion to vacate a foreclosure sale, holding that equitable relief requires a showing not merely of a procedural irregularity but of an irregularity that actually resulted in injustice to the complaining party. The bank failed to prove that the clerk's pre-sale affidavit requirement caused it any injustice because competent substantial evidence showed the bank could have made a cash bid above its judgment amount on the same terms as any other bidder. The decision also carries a significant procedural holding: a district court of appeal may retain jurisdiction and proceed to decide an appeal despite a party's voluntary dismissal notice when the case is of exceptional public importance and is likely to recur.

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