Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Whittingham v. HSBC Bank USA, NA

Florida Court of Appeals, Fifth District

July 24, 2019

WESLEY WHITTINGHAM AND ANDREA BROWN, Appellants.
v.
HSBC BANK USA, NA AS TRUSTEE FOR THE HOLDERS OF DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST, SERIES 2007-OA1, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Nonfinal Appeal from the Circuit Court for Brevard County, Lisa Davidson, Judge.

          Nicholas A. Vidoni, of Vidoni Law PLLC, Cocoa, for Appellants.

          Shawn Taylor and Brandi Wilson, of Deluca Law Group, PLLC, Ft. Lauderdale, for Appellee.

          BERGER, J.

         Wesley Whittingham and Andrea Brown ("Borrowers") appeal the trial court's order vacating two separate orders issued on October 14, 2013, and February 20, 2018, under Florida Rule of Civil Procedure 1.540(b)(4). The 2013 order was a case management order dismissing the foreclosure case without prejudice after the parties failed to appear at the case conference. The 2018 order vacated a summary final judgment of foreclosure in favor of HSBC Bank USA, NA as Trustee for the Holders of Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA1 ("Bank"), and again dismissed the case without prejudice. Borrowers raise four arguments on appeal. We find dispositive Borrowers' argument that judicial estoppel prevented Bank from challenging the 2018 order that it requested, and reverse.

         On August 27, 2010, the trial court rendered a summary final judgment of foreclosure against Borrowers and in favor of Bank, which it had signed four days earlier. The foreclosure sale was set for December 15, 2010. But, a week prior to the sale, Bank filed an ex parte motion to cancel it. The trial court granted the motion and cancelled the sale. The next year, in October 2011, Bank filed a motion to vacate the final judgment, stating that it did not wish to proceed with the case. Bank also asked the trial court to withdraw the original documents and dismiss the case without prejudice. Bank, however, never noticed the motion for a hearing, and the trial court did not rule on it at that time.

         Two years later, in 2013, on its own motion, the trial court set and held a case management conference. Neither party attended. Based on their nonattendance, the trial court issued a case management order on October 14, 2013, which dismissed the case without prejudice and gave the parties forty-five days to file additional pleadings. More than a year later, on December 9, 2014, Bank filed a motion to withdraw the original documents from the court file. In the motion, Bank decelerated the loan, withdrew its demand for immediate payment, and reinstituted the loan as an installment loan. Ten days later, the trial court granted the motion. Bank then filed a separate foreclosure action in October 2015, which was set for trial in May 2018.

         Bank subsequently filed a notice of hearing on its October 2011 motion to vacate the 2010 final judgment in this case. On February 20, 2018, the trial court, ex parte, granted the October 2011 motion to vacate and dismissed the case without prejudice. Shortly thereafter, Borrowers filed a rule 1.540(b)(4) motion to vacate the 2013 case management order, which had also dismissed the case without prejudice. They characterized the order as an involuntary dismissal and argued that it was void because the trial court lacked jurisdiction to involuntarily dismiss the case after it had rendered the summary final judgment. Bank also filed a similar motion, which not only sought to vacate the 2013 case management order, but the 2018 order as well. Similar to Borrowers, Bank claimed that both orders were void because the trial court lost subject matter jurisdiction to enter them after the final judgment was rendered. Bank also maintained that the 2010 final judgment was still enforceable, and thus, a new foreclosure sale date should be set.

         At the subsequent hearing on the parties' motions, the trial court inquired why Bank had previously moved to vacate the 2010 final judgment. Bank responded:

Well, Your Honor, fundamentally what we thought we were able to do is clean up the Court docket. We knew that we were advancing on a 2015 case, it was already set for trial, and we didn't want there to be an issue where there was an outstanding judgment. Subsequent to the Court granting that order though, after partly reading counsel's arguments on their motion to vacate, they titled it a motion to vacate a judgment but they're actually trying to vacate an order of dismissal, but after reviewing their case law we believe that it was error for us to have renoticed it just as it was error for Your Honor to have granted it.

         Bank then proceeded to argue that the motions and orders were void because the trial court lost jurisdiction to enter them one year after the 2010 final judgment was rendered. The trial court agreed and vacated, as void, all orders entered after August 23, 2011.

         On appeal, Borrowers contend that, regardless of whether the 2018 order was void, judicial estoppel bars Bank from challenging it. They maintain that under estoppel principles a party who accepts the benefit of an order is estopped from urging error upon the same order. We agree.

         Judicial estoppel provides that "[o]ne who assumes a particular position or theory in a case is judicially estopped in a later phase of that same case, or in another case, from asserting any other or inconsistent position toward the same parties and subject matter." In re Adoption of D.P.P., 158 So.3d 633, 639 (Fla. 5th DCA 2014) (citing Federated Mut.Implement & Hardware Ins. Co. v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.