Phadael v. Deutsche Bank Trust Co. Americas
83 So. 3d 893
Fla. Dist. Ct. App.2012Background
- Deutsche Bank filed a two-count mortgage foreclosure complaint against Jean Phadael on July 29, 2009.
- Count I claimed ownership of the note and that the original note was lost or destroyed, with Deutsche Bank asserting it owned and possessed the note when the loss occurred; Count II sought foreclosure of Phadael’s mortgage.
- Phadael did not answer or respond, and a default was entered; he never moved to set aside the default.
- Around the summary judgment hearing, Deutsche Bank filed the original note, the original mortgage, and an Amended Affidavit of Indebtedness stating Deutsche Bank was the designated holder.
- The original note contained an undated special endorsement in favor of Deutsche Bank; the Amended Affidavit claimed DB was the holder of both note and mortgage and that Phadael defaulted.
- After the summary judgment hearing, the court entered a final judgment of foreclosure; Phadael moved under Rule 1.540(b)(4) to vacate arguing the judgment was void ab initio for lack of standing; the trial court denied the motion, and the appellate court affirmed, holding the judgment was voidable, not void, due to default.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of standing at inception makes the judgment void under 1.540(b)(4). | Phadael: DB lacked standing at filing. | DB had standing at inception. | No; the judgment was not void under 1.540(b)(4). |
Key Cases Cited
- Glynn v. First Union Nat’l Bank, 912 So.2d 357 (Fla. 4th DCA 2005) (standing waiver when no defense raised)
- Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So.2d 909 (Fla. 4th DCA 2003) (standing defense waiver principle)
- Maynard v. Fla. Bd. of Educ., 998 So.2d 1201 (Fla. 2d DCA 2009) (standing may be raised in different procedural contexts)
- Beaulieu v. JPMorgan Chase Bank Nat’l Ass’n, 80 So.3d 365 (Fla. 4th DCA 2012) (rule 1.540(b)(4) not a rehearing substitute; void vs voidable)
- Jones-Bishop v. Estate of Sweeney, 27 So.3d 176 (Fla. 5th DCA 2010) (voidable judgments; lack of standing may render voidable)
- Donohue v. Brightman, 939 So.2d 1162 (Fla. 4th DCA 2006) (defaults terminate most defense rights)
- Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202 (Fla. 4th DCA 2010) (abuse of discretion standard for 1.540(b) relief)