FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Jack R. St.
Jonathan L. Black of Phelan Hallinan Diamond & Jones,
PLLC, Fort Lauderdale, for Appellant.
appearance for Appellees.
LaROSE, Chief Judge.
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. 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
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
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.
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.
"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.
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).
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 ...