Freemon v. Deutsche Bank Trust Co. Americas
46 So. 3d 1202
| Fla. Dist. Ct. App. | 2010Background
- Deutsche Bank foreclosed Freemon's home, alleging default and debt above $570,000.
- Freemon did not answer or respond; a default judgment and summary judgment followed in 2008.
- An affidavit of indebtedness by Denise Bailey, Litton Loan Servicing’s assistant secretary, was used to establish amounts due.
- Bailey claimed personal knowledge of the loan sums, based on Litton’s books and records kept in the regular course of business.
- Foreclosure sale occurred after judgments; Freemon later sought relief from judgment under Fla. R. Civ. P. 1.540(b) arguing fraud in the affidavit.
- Trial court denied relief; the Fourth District Court of Appeal affirmed, addressing standards for 1.540(b) relief and the sufficiency of the affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1.540(b)(3) motion showed prima facie fraud entitling relief | Freemon claims Bailey relied on others and lacked personal knowledge. | Bank contends Bailey had personal knowledge through Litton’s records. | No prima facie fraud shown; no basis to set aside judgment. |
| Whether Bailey's affidavit satisfied personal knowledge requirements | Affidavit did not show Bailey personally knew the amounts. | Affidavit attested to familiarity with records and regular business practices. | Affidavit supportable; not inconsistent with Bailey’s deposition. |
| Whether Freemon preserved the business records/Heasare argument for review | N/A | Issue not preserved on appeal. | Not preserved; trial court ruling stands. |
| Whether the standard of review and evidentiary hearing requirements were met | N/A | Motion did not mandate an evidentiary hearing. | The trial court did not abuse discretion; no hearing required. |
Key Cases Cited
- Crowley v. Crowley, 678 So.2d 435 (Fla. 4th DCA 1996) (broad discretion for 1.540(b) relief)
- J.J.K. Int'l, Inc. v. Shivbaran, 985 So.2d 66 (Fla. 4th DCA 2008) (abuse-of-discretion standard for 1.540(b))
- Flemenbaum v. Flemenbaum, 636 So.2d 579 (Fla. 4th DCA 1994) (need for particularized fraud showing to obtain hearing)
- Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So.3d 952 (Fla. 4th DCA 2009) (avoidance of unnecessary hearings; policy of final judgments)
- Hembd v. Dauria, 859 So.2d 1238 (Fla. 4th DCA 2003) (prima facie fraud standard for 1.540(b) hearings)