U.S. Bank National Ass'n v. Paiz
68 So. 3d 940
| Fla. Dist. Ct. App. | 2011Background
- U.S. Bank filed foreclosure and reestablishment of lost note against Rosa and Rigoberto Paiz on February 27, 2009; service of process on March 10, 2009; Paiz failed to respond.
- Bank moved for summary judgment on December 19, 2009, intending to present the original note at the hearing and attaching affidavits for fees and costs as exhibits.
- Bank filed multiple affidavits of amounts due in 2009–2010; hearing on motion for summary judgment occurred April 27, 2010, after which final judgment was entered in Bank's favor; note was filed that day.
- Foreclosure sale took place August 6, 2010; certificates of sale and title were recorded in August 2010.
- Writ of possession was sought October 8, 2010; hearing and writ entered January 18, 2011; Paiz later moved to vacate the judgment under Rule 1.540(b).
- Paiz filed a January 2011 Rule 1.540(b) motion claiming SASCO 2007-WF-2 did not exist; amended motions and hearings occurred February–March 2011 seeking stay and limited discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Paiz's Rule 1.540 motion to vacate was timely and proper | Paiz seeks relief from judgment due to alleged issues with the trust and affidavits. | Paiz argues grounds exist to vacate based on trust nonexistence and affidavit defects. | Motion improper; untimely and insufficient under 1.540. |
| Whether a Rule 1.540(b) motion can substitute for an appeal | Paiz relies on 1.540 to rectify errors without appeal. | Bank argues 1.540 is narrow relief for clerical errors or fraud with specific Showings, not a substitute for appeal. | Rule 1.540 cannot substitute for a timely appeal. |
| Whether the court erred in proceeding on the 1.540 motion given prior notice and procedural posture | Paiz contends pending discovery and amended motions warranted relief. | Bank contends Paiz waived objections by not raising them previously; ample opportunity to contest earlier. | No reversible error; the relief granted was improper. |
| Whether the stay of the writ of possession and discovery order were proper | Paiz seeks continued stay and limited discovery due to alleged fraud. | Bank contends there was no fraud shown and final judgment and sale should be enforced. | Orders staying possession and enabling discovery reversed; writ should take effect. |
Key Cases Cited
- Herrick v. Southeast Bank, N.A., 512 So.2d 1029 (Fla. 3d DCA 1987) (Rule 1.540 requires fraud or misrepresentation, not mere miscalculation)
- Freemon v. Deutsche Bank Trust Co. Am.s, 46 So.3d 1202 (Fla. 4th DCA 2010) (fraud must be specified with particularity to obtain a hearing)
- Beal Bank, S.S.B., Inc. v. Sherwin, 829 So.2d 961 (Fla. 4th DCA 2002) (1.540(b) relief not a substitute for appellate review)
- Rutshaw v. Arakas, 549 So.2d 769 (Fla. 3d DCA 1989) (1.540 not a vehicle for broad relief absent specific grounds)
- Metro. Dade Cnty v. Certain Lands Upon Which Assessments Are Delinquent, 471 So.2d 191 (Fla. 3d DCA 1985) (1.540 relief not a substitute for proper appellate relief)
- Mourning v. Ballast Nedam Constr., Inc., 964 So.2d 889 (Fla. 4th DCA 2007) (de novo standard where no factual dispute exists for 1.540 review)
- Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So.3d 952 (Fla. 4th DCA 2009) (extraordinary relief requires a prima facie fraud showing)