Gascue v. HSBC Bank, U.S.A.
2012 Fla. App. LEXIS 14491
Fla. Dist. Ct. App.2012Background
- HSBC Bank filed a foreclosure complaint against Gascue in November 2007 and later moved for summary final judgment in March 2009.
- Gascue retained counsel after service; her attorney appeared initially but failed to appear at the summary judgment hearing.
- The trial court granted summary judgment for Bank after the attorney's non-appearance, and Gascue learned of the judgment afterward.
- Gascue moved to vacate the final judgment under Florida Rule 1.540(b) alleging excusable neglect and a meritorious defense; the motion was denied in a non-evidentiary proceeding.
- Rule 1.540(b) relieves a party from final judgment for mistake, inadvertence, surprise, or excusable neglect, and relief requires a meritorious defense.
- On appeal, the Fourth District reversed, remanding for a limited evidentiary hearing to determine excusable neglect and meritorious defense, including standing questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of 1.540(b) relief was abuse of discretion | Gascue contends excusable neglect warrants relief. | Bank contends no excusable neglect or meritorious defense established. | Abuse of discretion; reversal and remand for hearing. |
| Whether Gascue demonstrated excusable neglect under 1.540(b) | Attorney's non-appearance at the hearing constitutes excusable neglect. | No excusable neglect proven due to procedural gaps and timing. | Limited evidentiary hearing required to resolve excusable neglect. |
| Whether Gascue has a meritorious defense on standing to foreclose | Bank lacked standing to foreclose because it was not the holder of the note/mortgage at filing. | Bank is the holder or proper representative; standing established by records. | Remand for evidentiary hearing on standing and related defenses. |
Key Cases Cited
- Walker v. Franklin, 669 So.2d 1088 (Fla. 4th DCA 1996) (nonappearance at summary judgment can support 1.540(b) relief)
- Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195 (Fla. 4th DCA 2012) (standing must exist at inception; later acquisition cannot cure)
- America’s Yate de Costa Rica v. Armco Mfg., Inc., 82 So.3d 882 (Fla. 4th DCA 2011) (meritorious defense required for 1.540(b) relief)
- Chancey v. Chancey, 880 So.2d 1281 (Fla. 2d DCA 2004) (colorable entitlement to relief warrants limited evidentiary hearing)
- SunTrust Bank v. Puleo, 76 So.3d 1037 (Fla. 4th DCA 2011) (abuse of discretion standard for 1.540(b) denials)
- BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) (proper party with standing to foreclose required)