Dage v. Deutsche Bank National Trust Co.
95 So. 3d 1021
| Fla. Dist. Ct. App. | 2012Background
- Dages appeal a nonfinal order denying their motion to vacate a final foreclosure judgment.
- Deutsche Bank filed a two-count foreclosure complaint in December 2008, alleging it owned/held the note and seeking foreclosure on the mortgage.
- Mortgage attachment showed Mortgage Lenders Network USA, Inc. as lender and MERS as mortgagee; default entered January 2009.
- Deutsche Bank moved for summary judgment with the original note endorsed in blank, the mortgage, and a Corporate Assignment showing MERS assigned to Deutsche Bank after filing.
- Final judgment of foreclosure entered July 10, 2009; sale scheduled for July 18, 2010.
- Dages moved to vacate in 2011 asserting excusable neglect, loan modification efforts, and lack of Deutsche Bank ownership/possession; trial court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does lack of standing render the judgment void or voidable? | Dage claims lack of standing makes judgment void. | Bank’s standing at filing is sufficient; judgment not void. | Voidable, not void; still, no relief under 1.540(b)(4). |
| Whether Rule 1.540(b)(1)-(3) relief was timely and proper. | Motion timely due to excusable neglect and meritorious defenses. | Untimely under 1.540(b); no meritorious defense shown. | Untimely and insufficient even if timely. |
| Whether 1.540(b)(4) voidness relief applies here. | Judgment void due to lack of standing. | Voidable only; cannot be attacked by 1.540(b)(4). | Not void; 1.540(b)(4) relief denied. |
Key Cases Cited
- Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176 (Fla. 2d DCA 2010) (plaintiff must own/hold note at filing)
- Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla. 2d DCA 2010) (defaulted party may not pursue set-aside relief; context differs)
- BAC Funding Consortium, Inc., ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) (foreclosure default relief not inapposite here)
- Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658 (Fla. 2d DCA 2007) (default relief standards)
- Paul v. Wells Fargo Bank, N.A., 68 So.3d 979 (Fla. 2d DCA 2011) (timeliness and meritorious defense requirements)
- Palacio v. Alaska Seaboard Partners Ltd. P’ship, 50 So.3d 54 (Fla. 1st DCA 2010) (timeliness considerations in default-related relief)
- Phadael v. Deutsche Bank Trust Co Americas, 83 So.3d 893 (Fla. 4th DCA 2012) (standing as affirmative defense; void vs voidable)
- Beaulieu v. JPMorgan Chase Bank Nat’l Ass’n, 80 So.3d 365 (Fla. 4th DCA 2012) (defaulting party cannot contest ownership allegations)
- Jones-Bishop v. Estate of Sweeney, 27 So.3d 176 (Fla. 5th DCA 2010) (void vs voidable judgments and related defenses)