Dabas v. Boston Investors Group, Inc., 16-2672

In April 2011 Boston Investors Group, Inc. (Borrower) executed a $450,000 note and mortgage to Dev D. Dabas and Sumedha Dabas (Lenders); foreclosure final judgment entered May 2013 for $579,409.92.
Foreclosed vacant land sold at foreclosure sale for $65,100 to the Lenders.
Lenders moved for a deficiency judgment; hearing was noticed (not expressly as an evidentiary hearing), Borrower’s counsel received notice and appeared; no transcript of hearing exists.
Trial court entered a deficiency judgment for $508,602.62; Borrower did not appeal or timely move for rehearing but filed a post-judgment "motion for reconsideration" 34 days later citing rule 1.540(b) without specifying a ground.
Years later Borrower sought to redesignate the earlier filing as a 1.540(b)(4) motion to set aside the judgment as void (arguing no evidentiary hearing violated due process); trial court granted relief under 1.540(b)(4). Lenders appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the deficiency judgment is void for lack of an evidentiary hearing/violation of due process	Lenders: Judgment not void; court had jurisdiction, Borrower received notice and opportunity to be heard, so any error is voidable, not void.	Borrower: Judgment void under Fla. R. Civ. P. 1.540(b)(4) because the hearing was not set as an evidentiary hearing and due process was denied.	Judgment is not void; trial court erred in granting relief under 1.540(b)(4). Reversed.
Whether Borrower timely and properly sought relief under correct rule/procedure	Lenders: Borrower failed to use timely motion for rehearing (rule 1.530) or timely appeal; 1.540 is not a substitute for rehearing/appeal.	Borrower: Cited rule 1.540 and later identified 1.540(b)(4) as basis for relief; argued relief available because judgment lacked evidentiary hearing.	Court notes motion for rehearing would have been proper and timely but Borrower did not timely act; delay undermines relief. The 1.540(b)(4) voidity claim fails on the merits.

Epstein v. Bank of Am., 162 So. 3d 159 (discussing standard of review for 1.540(b) motions)
Wiggins v. Tigrent, Inc., 147 So. 3d 76 (a void judgment must be vacated; not discretionary)
Vercosa v. Fields, 174 So. 3d 550 (whether judgment is void is a question of law reviewed de novo)
Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So. 2d 658 (distinguishing void vs. voidable judgments; actual notice undermines voidness)
Tannenbaum v. Shea, 133 So. 3d 1056 (grounds for declaring a judgment void include lack of jurisdiction or denial of due process)
Phadael v. Deutsche Bank Tr. Co. Americas, 83 So. 3d 893 (rule 1.540 is not a substitute for rehearing or appeal)
Liberty Bus. Credit Corp. v. Schaffer/Dunadry, 589 So. 2d 451 (burden and need for evidentiary hearing to determine fair market value for deficiency)
Merrill v. Nuzum, 471 So. 2d 128 (deficiency is unliquidated and may require evidentiary hearing)
Thunderbird, Ltd. v. Great Am. Ins. Co., 566 So. 2d 1296 (presumption that foreclosure sale price equals fair market value)
Khan v. Simkins Indus., Inc., 687 So. 2d 16 (correct formula for calculating deficiency judgment)
Barnard v. First Nat’l Bank of Okaloosa Cnty., 482 So. 2d 534 (foreclosure sale price not conclusive on market value)