227 So. 3d 726
Fla. Dist. Ct. App.2017Background
- Nationstar filed foreclosure against Vincent Diaz (note and mortgage) and Deisel Diaz (mortgage), alleging $428,128.73 due; did not plead a $319,496.36 streamline modification.
- Trial court issued an order to show cause with Nationstar’s proposed final judgment (reflecting $428,128.73) and then entered that final judgment before the scheduled hearing and before defendants were served with the order to show cause.
- Deisel filed an unsworn answer but later consented to and did not oppose entry of the final judgment; Vincent did not defend at all.
- Nationstar later discovered the streamline modification omission, sought to amend the judgment nunc pro tunc and then moved to vacate under Florida R. Civ. P. 1.540(b)(1) (mistake) and (b)(4) (voidness/due process), and requested an evidentiary hearing; the trial court denied relief.
- The property was sold to an unaffiliated purchaser (AG 07 Investments) after Nationstar’s (b)(4) motion was pending; no lis pendens was recorded; Nationstar appealed the denial of the (b)(4) motion and evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the final judgment is void for lack of notice/opportunity to be heard (due process) | Nationstar: judgment void because entered before defendants were served with order to show cause and before hearing | Trial court/Respondents: Deisel consented; Vincent did not defend; judgment matched Nationstar’s proposed judgment and complaint; no due process violation | Judgment not void; (b)(4) relief denied and affirmed |
| Whether Nationstar waived objection by submitting the proposed judgment | Nationstar: sought relief despite prior submission | Respondents: submitting proposed judgment waived Nationstar’s due process claim | Trial court found waiver; appellate panel affirmed |
| Whether relief under rule 1.540(b)(1) required an evidentiary hearing | Nationstar: alleged mistake/excusable neglect and requested evidentiary hearing | Respondents: trial court denied evidentiary hearing; no abuse of discretion | Appellate court affirmed denial of evidentiary hearing |
| Effect of purchaser protections on available relief | Nationstar: sought to vacate judgment to include omitted modification | Respondents: purchaser acquired for value; statute limits relief to monetary damages, not title changes | Court noted §702.036 would limit relief to monetary damages if statutory prerequisites met; judgment still not void |
Key Cases Cited
- Epstein v. Bank of Am., 162 So. 3d 159 (Fla. 4th DCA 2015) (standard of review for rule 1.540(b) motions)
- Wiggins v. Tigrent, Inc., 147 So. 3d 76 (Fla. 2d DCA 2014) (void judgments must be vacated as a matter of law)
- Horton v. Rodriguez Espaillat y Asociados, 926 So. 2d 436 (Fla. 3d DCA 2006) (trial court must vacate a void judgment)
- Vercosa v. Fields, 174 So. 3d 550 (Fla. 4th DCA 2015) (whether a judgment is void is reviewed de novo)
- Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So. 2d 658 (Fla. 2d DCA 2007) (definition and effect of a void judgment)
- Tannenbaum v. Shea, 133 So. 3d 1056 (Fla. 4th DCA 2014) (grounds rendering a judgment void include denial of due process)