final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Tribunal
No. 11-29615, Dennis J. Murphy, Judge.
Leal, P.A., and Eddy Leal, for appellant.
Liebler Gonzalez & Portuondo, and Mary J. Walter, for
SCALES, HENDON, and LOBREE, JJ.
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.
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
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.
conclusion of the evidentiary hearing, the trial court denied
the Borrower's motion for relief from judgment. The
Borrower's appeal followed.
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
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 or ...