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Nationstar Mortgage, LLC v. Diaz

Florida Court of Appeals, Third District

September 20, 2017

Nationstar Mortgage, LLC, Appellant,
v.
Vincent Diaz, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         An 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 appellant.

          Carrera & Amador, P.A., and Juan M. Carrera, for appellee AG 07 Investments, LLC.

          Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.

          ROTHENBERG, C.J.

          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 affirm.[1]

         FACTS

         Nationstar 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.

         On 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 any respect.

         The 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, 2015.

         On 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.

         A day 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, 010.90.

         As the 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 ...


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