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Linares v. Bank of America, N.A.

Florida Court of Appeals, Third District

September 4, 2019

Geraldo Linares, Appellant,
v.
Bank of America, N.A., etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Tribunal No. 11-29615, Dennis J. Murphy, Judge.

          Eddy Leal, P.A., and Eddy Leal, for appellant.

          Liebler Gonzalez & Portuondo, and Mary J. Walter, for appellee.

          Before SCALES, HENDON, and LOBREE, JJ.

          HENDON, J.

         Geraldo Linares ("Borrower") appeals from the denial of his "Motion to Rescind Foreclosure Sale and Verified [Motion] to Vacate Final Judgment Pursuant to F.R.C.Pr. 1.540(b)" ("motion for relief from judgment"). For the reasons that follow, we affirm.

         Bank of America, N.A., etc. ("the Bank"), filed a foreclosure action against the Borrower. On June 10, 2013, a final judgment of foreclosure was entered in favor of the Bank. The Borrower did not appeal the final judgment of foreclosure.

         On August 3, 2015, more than two years after the final judgment of foreclosure was entered, the Borrower filed the motion for relief from judgment, asserting that "the court may relieve a party from final judgment due to mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or that the decree is void." The Borrower asserted that he applied for a loan modification with the Bank in 2009, the Bank offered him a trial plan for three months, and he continued to make the payments for twenty-four months. However, in March 2011, the Bank notified him that he was not being considered for a permanent loan modification because he had notified the Bank that he was not interested in modifying the loan. In the motion for relief from judgment, the Borrower claimed that he did not notify the Bank that he was not interested in a loan modification. The Borrower further asserted that, at the final foreclosure hearing, he informed the trial court that the Bank had approved him for a permanent loan modification, but the trial court nonetheless entered a final judgment of foreclosure against him and in favor of the Bank.

         At the conclusion of the evidentiary hearing, the trial court denied the Borrower's motion for relief from judgment. The Borrower's appeal followed.[1]

         "The denial of a motion for relief from final judgment under Florida Rule of Civil Procedure 1.540(b) is reviewed for an abuse of discretion." Noel v. James B. Nutter & Co., 232 So.3d 1112, 1115 (Fla. 3d DCA 2017); see also Voce v. Wachovia Mortg., FSB, 174 So.3d 545, 547 (Fla. 4th DCA 2015) (quoting Fla. Philharmonic Orchestra, Inc. v. Bradford, 145 So.3d 892, 894 (Fla. 4th DCA 2014)) ("The standard of review of an order denying a Rule 1.540(b) motion for relief from judgment is abuse of discretion.").

         The Borrower sought relief from the final judgment of foreclosure pursuant to Florida Rule of Civil Procedure 1.540(b), which provides as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

(underlining added). Here, despite not specifying under which part of rule 1.540(b) he was proceeding, based on the language used in the motion for relief from judgment, the Borrower proceeded under (b)(1) based on mistake, inadvertence, surprise, or excusable neglect; (b)(3) based on fraud[2] or ...


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