Vilvar v. Deutsche Bank Trust Co. Americas
83 So. 3d 853
| Fla. Dist. Ct. App. | 2011Background
- Vilvar appeals a non-final order denying her motion to vacate an amended final summary judgment of foreclosure.
- Foreclosure action began five years earlier after Vilvar defaulted on her mortgage; Deutsche Bank obtained a final judgment.
- Vilvar filed a bankruptcy petition after the initial judgment and again after the amended final judgment, both petitions later dismissed.
- Bank sought to amend the final judgment to include additional sums, supported by an affidavit from Lonna Cross, Saxon Mortgage Services’ assistant vice president.
- Vilvar moved to vacate the amended final judgment under rule 1.540(b), asserting Cross’s affidavit was inaccurate, hearsay, and not supported by sworn records; motion was denied and is now appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1.540(b)(3) motion to vacate was properly denied for failure to plead fraud with specificity | Vilvar | Vilvar argues lack of specific fraud due to Cross affidavit failing personal knowledge/records | No merit; allegations lacked particularity and failed to show fraud entitling relief |
| Whether Cross’s affidavit complied with admissibility requirements | Vilvar | Cross’s affidavit complied; objections not timely raised | Affidavit admissible; failure to attach copies not fatal given prior service and personal knowledge |
| Whether the failure to timely object to the Cross affidavit bars relief | Vilvar | Late objection preserves nothing; no fraud established | Timeliness issue fatal to fraud challenge; no error in denying vacate |
Key Cases Cited
- Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202 (Fla. 4th DCA 2010) (affidavit of indebtedness need not show personal knowledge to support judgment when fraud not alleged)
- J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66 (Fla. 4th DCA 2008) (abuse of discretion standard for Rule 1.540(b) petition)
- Snipes v. Chase Manhattan Mortg. Corp., 885 So.2d 899 (Fla. 5th DCA 2004) (guidance on procedural requirements for affidavits in summary judgments)
- Hembd v. Dauria, 859 So.2d 1238 (Fla. 4th DCA 2003) (fraud claims must be pleaded with precision)
- Flemenbaum v. Flemenbaum, 636 So.2d 579 (Fla. 4th DCA 1994) (fraud claims must be clearly stated, not conclusory)
- Cady v. Chevy Chase Sav. & Loan, Inc., 528 So.2d 136 (Fla. 4th DCA 1988) (fraud allegations must be stated with particularity)