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Bayview Loan Servicing, LLC v. Dzidzovic

Florida Court of Appeals, Second District

June 22, 2018

BAYVIEW LOAN SERVICING, LLC, Appellant,
v.
HUSO DZIDZOVIC; EAST LAKE WOODLANDS MASTER ASSOCIATION, INC., a dissolved corporation; GREENHAVEN UNIT ONE ASSOCIATION, INC.; EDINA DZIDZOVIC; JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, successor in interest by purchase from the Federal Deposit Insurance Corporation, as received for Washington Mutual Bank f/k/a Washington Mutual Bank, FA, Appellees.

          NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Pinellas County; Jack R. St. Arnold, Judge.

          Jonathan L. Black of Phelan Hallinan Diamond & Jones, PLLC, Fort Lauderdale, for Appellant.

          No appearance for Appellees.

          OPINION

          LaROSE, Chief Judge.

         Bayview Loan Servicing, LLC, appeals the trial court's order granting Huso Dzidzovic's motion to vacate the final judgment of foreclosure and dismissing its foreclosure action.[1] We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The trial court entered the order ex parte without a hearing. Further, no competent substantial evidence supports the order. Consequently, we reverse and remand.

         Background

         The trial court entered a final judgment of foreclosure against Mr. Dzidzovic. He appealed. By stipulation, the parties voluntarily dismissed the appeal. See Dzidzovic v. Bayview Loan Servicing, LLC, 233 So.3d 1091 (Fla. 2d DCA 2017). Thereafter, the trial court scheduled a foreclosure sale.

         Several weeks before the sale and pursuant to Florida Rule of Civil Procedure 1.540(b), Mr. Dzidzovic filed a "motion to vacate final judgment and dismiss action and motion to enforce settlement or in the alternative to reschedule sale date." He alleged that he had entered into a loan modification agreement with Bayview, following the final judgment, that he was in compliance with the terms of that agreement, and that Bayview was imprudently proceeding with the foreclosure sale.

         On the same day that the motion was filed, the trial court, without hearing, entered an order granting the motion, vacated the final judgment, and dismissed the foreclosure action. Bayview filed an unsuccessful motion for rehearing.

         Analysis

         We "review an order granting a [rule 1.540(b)] motion . . . for abuse of discretion." State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So.3d 528, 531 (Fla. 2d DCA 2017). Thus, we afford the trial court's ruling a degree of deference, such that it will be affirmed unless the "judicial action is arbitrary, fanciful, or unreasonable . . . . [D]iscretion is abused only where no reasonable [person] would take the view adopted by the trial court." Trease v. State, 768 So.2d 1050, 1053 n.2 (Fla. 2000) (second alteration in original) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla. 1990)). The trial court's order is problematic for three reasons.

         First, by entering the order the same day the motion was filed, and without giving Bayview an opportunity to be heard, the trial court acted ex parte. This was error. "Due process mandates that in any judicial proceeding, the litigants must be afforded the basic elements of notice and opportunity to be heard." E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226, 228 (Fla. 2d DCA 1995); see also Arcila v. BAC Home Loans Servicing, L.P., 145 So.3d 897, 898-99 (Fla. 2d DCA 2014) (reversing trial court's ex parte order vacating an order of dismissal); Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So.3d 1271, 1274-75 (Fla. 2d DCA 2009) (reversing the trial court's ex parte order granting a motion to vacate a foreclosure sale where the third-party purchaser was provided neither notice nor an opportunity to be heard).

         Second, the trial court failed to conduct an evidentiary hearing on the motion. "Where a motion under rule 1.540(b) sets forth 'a colorable entitlement to relief,' the trial court should conduct an evidentiary hearing to determine whether such relief should be granted." Cottrell v. Taylor, Bean & Whitaker Mortg. Corp., 198 So.3d 688, 691 (Fla. 2d DCA 2016) (quoting Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004)). Mr. Dzidzovic's allegation that the parties entered a loan modification agreement was a colorable claim for rule 1.540(b) relief. Cf. Nowlin v. Nationstar Mortg., LLC, 193 So.3d 1043, 1045 (Fla. 2d DCA 2016) ("We conclude ...


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