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Ricci v. Ventures Trust 2013-I-H-R By MCM Capital Partners, LLC

Florida Court of Appeals, Fourth District

June 12, 2019

ERNEST P. RICCI, Appellant,
v.
VENTURES TRUST 2013-I-H-R BY MCM CAPITAL PARTNERS, LLC, its trustee, et al., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal of nonfinal order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barry J. Stone, Judge; L.T. Case No. CACE 13-007175.

          Ernest P. Ricci, North Kingston, Rhode Island, pro se.

          Richard S. McIver and H. Michael Muñiz of Kass Shuler, P.A., Tampa, for appellee.

          Conner, J.

         Ernest P. Ricci, pro se, appeals the trial court's nonfinal order overruling his objection to sale, denying his motion to set aside certificate of sale, and directing the clerk of the court to issue a certificate of title to Ventures Trust ("Ventures") in an underlying mortgage foreclosure action. Ricci argues that the trial court erred in entering the order because prior to its entry, Ricci filed a notice of removal to federal court and filed a copy with the state court clerk. He argues that the trial court did not have jurisdiction until the federal court remanded the case and that the trial court's order was therefore void because it was entered prior to the remand.

         Because the case was effectively removed to federal court a few hours before the order under review was entered, we reverse the order under review. However, as we explain, our reversal is without prejudice for the trial court, sua sponte or upon motion, to immediately re-enter the order after vacating it, with notice to the parties.

          Background

         Ventures filed its foreclosure complaint, and eventually moved for summary judgment, which was granted. Ricci appealed and this Court affirmed per curiam. Ricci v. Ventures Tr. 2013-I-H-R By MCM Capital Partners, LLC, 253 So.3d 607 (Fla. 4th DCA 2018). Thereafter, Ricci filed his first notice of removal to the federal district court, which delayed the foreclosure sale until the federal district court remanded the case in October 2017. Ventures maintains that during this time, Ricci filed numerous bankruptcy petitions, which Ventures argues were used to further delay the foreclosure sale.

         In March 2018, Ricci filed his motion to set aside the sale, and the trial court held a hearing. In support of the motion, Ricci argued that he was not given proper notice of the judicial sale. On April 4, 2018, the trial court entered an order overruling the objection to the sale, finding that at the time the notice of sale was served, Ricci was represented by counsel, and that counsel for Ventures had properly served Ricci's counsel with the notice. The trial court concluded that an evidentiary hearing was not required because Ricci was not entitled to personal notice by Ventures. At 7:25 a.m. the same day, and prior to the order overruling the objection to sale was filed, Ricci filed his second notice of removal to federal court and filed a copy with the state court clerk.

         Five days later, Ricci filed his notice of appeal with this Court. One week later, the federal district court rendered its second order remanding the case, concluding that it did not have subject matter jurisdiction.

         Appellate Analysis

         On appeal, Ricci asserts that the trial court lost jurisdiction once he filed his notice of removal and filed a copy with the state court clerk, which was prior to the entry of the order denying his objection to the foreclosure sale. He contends that the nonfinal order at issue is therefore void.

         In response, Ventures maintains that Ricci invited any error, and that he failed to preserve the jurisdictional argument by not first raising it in the trial court. Ventures further contends that Ricci's objection to the sale failed as a matter of law, and therefore, even if the trial court ...


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