final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-6370, Jose M. Rodriguez, Judge.
Robertson, Anschutz & Schneid, PL, and Robert R. Edwards,
David Rosenberg, and Jarrett Cooper (Boca Raton), for
Carrera & Amador, P.A., and Juan M. Carrera, for appellee
AG 07 Investments, LLC.
ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
Nationstar Mortgage, LLC appeals from an order denying its
amended motion to vacate the final judgment of foreclosure as
void pursuant to Florida Rule of Civil Procedure 1.540(b)(4)
and/or motion for an evidentiary hearing on its prior motion
to vacate pursuant to rule 1.540(b)(1). Because the final
judgment of foreclosure is not "void, " we
filed a foreclosure action against Vincent Diaz
("Vincent"), who executed both the mortgage and
note, and Deisel Diaz ("Deisel"), who executed the
mortgage. The initial and amended complaints alleged that the
amount of principal due and owing on the note was $428,
128.73, but the complaints did not reference nor plead as due
and owing the amount of $319, 496.36, based on a streamline
modification of the note and/or mortgage.
August 10, 2015, Deisel filed an unsworn and unverified
answer and affirmative defenses to the amended complaint.
Vincent, however, did not defend the foreclosure action in
following day, August 11, 2015, Nationstar filed a motion for
an order to show cause to be issued for the entry of a final
judgment of foreclosure pursuant to section 702.10(1),
Florida Statutes (2015), which sets forth a procedure to
expedite foreclosure cases that are not being materially
defended. The proposed final judgment attached to the motion
for the order to show cause provided that the amount due and
owing under the note was $428, 128.73, but does not reference
a streamline modification of that amount, or that Nationstar
was due an additional $319, 496.36. Therefore, the final
judgment of foreclosure was consistent with Nationstar's
initial and amended complaints. Thereafter, the trial court
issued the order to show cause, attaching Nationstar's
proposed final judgment, and setting a hearing for October 7,
August 25, 2015, prior to the defendants being served with
the order to show cause, the trial court entered the final
judgment of foreclosure attached to the order to show cause.
The parties did not move for rehearing or appeal the final
judgment of foreclosure. Instead, Nationstar moved to cancel
the scheduled hearing on the order to show cause, asserting
that a final judgment of foreclosure had been entered and
that the parties would not be prejudiced by the cancellation
of the hearing.
prior to the scheduled October 7th hearing on the order to
show cause, Nationstar filed a motion to amend the final
judgment of foreclosure nunc pro tunc by interlineation
pursuant to rule 1.540(a) ("motion to amend"),
asserting that when preparing for the foreclosure sale, it
discovered that the final judgment mistakenly omitted the
$319, 496.36 streamline modification, and therefore, the
total amount due and owing to Nationstar was actually $834,
trial court had not ruled on the motion to cancel the hearing
on the order to show cause, the parties appeared at the
scheduled October 7th hearing. However, the trial court did
not hear argument relating to the order to show cause because
Deisel's counsel informed the trial court that his client
had conceded and ...