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Vilvar v. Deutsche Bank Trust Co. Americas

Florida Court of Appeal, Fourth District

December 21, 2011

Margarette R. VILVAR, Appellant,
v.
DEUTSCHE BANK TRUST COMPANY AMERICAS formerly known as Banker's Trust Company, Ixis 2005-HE4 as Trustee and Custodian By: Saxon Mortgage Services, Inc. f/k/a Meritech Mortgage Services, Inc., as its Attorney-in-Fact, Appellee.

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Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellant.

Jeffrey M. Gano of Florida Default Law Group, P.L., Tampa, for appellee.

DAMOORGIAN, J.

Margarette R. Vilvar appeals a non-final order denying her motion to vacate an amended final summary judgment of foreclosure. Concluding that Vilvar's claims have no merit, we affirm and write only to address the insufficiency of the allegations of fraud and misrepresentation contained in Vilvar's motion to vacate.

The underlying foreclosure action was commenced five years ago when Vilvar failed to pay her mortgage.[1] Soon after filing the foreclosure action, Deutsche Bank (" the bank" ) obtained a final judgment against Vilvar. Thereafter, Vilvar filed a petition in bankruptcy, which was later dismissed. The bank then moved to amend the final judgment to include additional sums due. In support of its motion, the bank filed an affidavit from Lonna Cross, the assistant vice president of Saxon Mortgage Services, Inc. (" Saxon" ), the entity that serviced the loan. The motion was granted and an amended final judgment was entered.

One day before the foreclosure sale was to have occurred, Vilvar filed a second petition in bankruptcy, which was also later dismissed. The sale was re-scheduled, but one week before the sale, Vilvar filed a motion to vacate the amended final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In her motion, Vilvar alleged that Cross's affidavit " was inaccurate and constituted hearsay" and it " failed to include sworn or certified copies of the very business records upon which" Cross relied. The motion was denied and this appeal followed.

The standard of review of an order on a rule 1.540(b) motion is whether there has been an abuse of discretion. J.J.K. Int'l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008) (citing Snipes v. Chase Manhattan Mortg. Corp., 885 So.2d 899, 900 (Fla. 5th DCA 2004)).

Vilvar argues that Cross's affidavit failed to comply with Florida Rule of Civil Procedure 1.510(e) because it " did not constitute admissible evidence, and the facts therein and [the] affiant's personal knowledge were intentionally or negligently misrepresented to the trial court." [2] Vilvar's argument is without merit. We recently addressed the same issue in Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202 (Fla. 4th DCA 2010).

In Freemon, the appellant moved for relief from a foreclosure judgment because she claimed " that the affidavit of indebtedness attesting to the amounts due on the mortgage and note was not made on the

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personal knowledge of the affiant." Id. at 1203. Deutsche Bank moved for summary judgment, attaching an affidavit from an assistant secretary of a separate company that serviced the loan. Id. at 1204. In the affidavit, the affiant stated that she was familiar with the books and accounts and " specifically had personal knowledge of the sums due on the mortgage loan." Id. The affidavit also " set forth the unpaid balance, interest, and other charges." Id. The trial court entered summary judgment in favor of Deutsche Bank and denied the appellant's motion to vacate. Id. We affirmed and explained:

Freemon's motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment. Freemon nowhere contends that she did not default on her mortgage, nor does she allege that the amounts due and owing, set forth in the affidavit and incorporated in the final judgment, are incorrect.

Id. at 1205.

What occurred in Freemon is precisely what transpired in this case. Cross's affidavit stated that she was the assistant vice president of Saxon, which, as the loan servicer, was responsible for collection of the loan and pursuit of any delinquency in payments. Cross went on to explain that she was familiar with Saxon's books, records, and documents relevant to the allegations in the complaint, and that all of the books, records, and documents concerning the loan were kept by Saxon in the regular course of its business. Cross's affidavit also ...


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