Pino v. Bank of New York Mellon
2011 Fla. App. LEXIS 4341
| Fla. Dist. Ct. App. | 2011Background
- BNY Mellon forecloses on mortgage; complaint alleges ownership by assignment but lacks copy of any assignment and notes the original promissory note was lost.
- Defendant moves to dismiss for failure to state a claim due to lost instrument and lack of proper assignment.
- BNY Mellon amends to attach an unrecorded assignment dated just before filing; defendant sanctions alleging fraud in the assignment.
- BNY Mellon files notice of voluntary dismissal before defendant can obtain affirmative relief or sanctions.
- Five months later, plaintiff refiles identical foreclosure action with a new assignment; defendant seeks to strike dismissal under Rule 1.540(b) and sanction for fraud, which the trial court denies on jurisdictional grounds.
- Court grants clarification, holds no relief under Rule 1.540(b) or common law exceptions where plaintiff obtained no affirmative relief before dismissal; certifies a question of great public importance to the Florida Supreme Court regarding jurisdiction to grant relief from voluntary dismissal for fraud on the court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court may grant relief under Rule 1.540(b) for a fraudulent voluntary dismissal when no affirmative relief was obtained. | BNY Mellon argues inherent authority to protect judicial integrity allows relief. | Defendant contends no relief is available absent adverse impact from dismissal. | No relief; dismissal affirmed without evidentiary hearing. |
| Whether common law exceptions permit striking a voluntary dismissal for fraud when no affirmative relief was obtained. | BNY Mellon relies on Select Builders to show fraud on the court. | Defendant argues no affirmative relief exists and thus no fraud-based relief. | Distinguished; no applicable common law exception present. |
| Whether the trial court had jurisdiction to consider sanctions for fraud on the court after voluntary dismissal. | Court had inherent authority to protect integrity and sanction fraud. | Dismissal under Rule 1.420 terminates proceedings; no jurisdiction to consider Rule 1.540(b). | Trial court lacked authority to reopen for sanctions given lack of affirmative relief; affirmed. |
| Whether the issue presents a question of great public importance warranting Supreme Court review. | Foreclosure practice tainted by suspect documents; widespread impact. | Not necessary to sanction voluntary dismissal after fraud attempt. | Question certified to Florida Supreme Court. |
| Whether the dissent’s view should permit sanctions as to the voluntary dismissal to prevent fraud on the court. | Sanctions should extend to prevent fraud even absent affirmative relief. | Sanctions require an applicable rule and adverse impact; distinction needed. | Dissent acknowledges potential authority but is not the controlling ruling. |
Key Cases Cited
- Ormond Beach Assocs. Ltd. v. Citation Mortg., Ltd., 835 So.2d 292 (Fla. 5th DCA 2002) (absolute right to dismiss prior to summary judgment, with narrow exceptions)
- Meyer v. Contemporary Broadcasting Co., 207 So.2d 325 (Fla. 4th DCA 1968) (early articulation of voluntary dismissal rights)
- Romar Int'l, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So.2d 346 (Fla. 5th DCA 1982) (narrow common-law exception for fraud on the court)
- Visoly v. Bodek, 602 So.2d 979 (Fla. 3d DCA 1992) (sham complaint; consideration of rule 1.150(a) in context of dismissal)
- Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979) (affirmative relief obtained; court protects integrity when fraud on court involved)
- Bevan v. D’Alessandro, 395 So.2d 1285 (Fla. 2d DCA 1981) (distinguishes Select Builders when no relief obtained)
- Miller v. Fortune Insurance Co., 484 So.2d 1221 (Fla. 1986) (Rule 1.540(b) may be used to relieve from finality for fraud/misconduct)
- Ramey v. Haverty Furn. Co., 993 So.2d 1014 (Fla. 2d DCA 2008) (sanctions for misrepresentations in discovery; fraud on court)
- Aoude v. Mobil Oil Corp., 892 F.2d 1115 (1st Cir. 1989) (federal standard: failure of intent does not excuse fraud on court)
- Service Experts LLC v. Northside Air Conditioning & Electrical Service, 56 So.3d 26 (Fla. 2d DCA 2010) (discretionary rule-based relief; not dispositive for fraud-on-court issue)