115 So. 3d 1072
Fla. Dist. Ct. App.2013Background
- Virgo executed a mortgage and note to National City Mortgage and defaulted, leading to a 2009 foreclosure action.
- National City notified Virgo of potential eligibility for the HAMP modification program, which required qualification paperwork and trial payments.
- National City obtained summary judgment and foreclosed in April 2009; a sale was initially set for July 2009.
- Virgo entered a HAMP trial plan in Oct 2009 and a second in Mar 2010, making several timely payments, but the lender rejected the fifth payment and proceeded with foreclosure.
- In Feb 2011 Virgo filed the First Motion to Vacate asserting lack of standing and fraudulent affidavit; the trial court denied it and Virgo appealed.
- In Sep 2011 Virgo filed the Second Motion to Vacate seeking relief under Rule 1.540(b)(4)-(5) alleging HAMP violation and inequity; the trial court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars the Second Motion to Vacate | Virgo argues the Second Motion raises new inequities not previously litigated. | National City contends the Second Motion raises issues that could have been raised earlier and are barred. | Res judicata bars the Second Motion to Vacate. |
| Whether the trial court erred in considering the Second Motion to Vacate without jurisdiction due to pending appeal | Virgo argued trial court retained jurisdiction to adjudicate the Second Motion while appeal on the First Motion was pending. | National City asserts lack of jurisdiction given the procedural posture and prior rulings. | Affirmed without discussing jurisdiction issues; basis: res judicata bars the motion. |
Key Cases Cited
- Purcell v. Deli Man, Inc., 411 So.2d 378 (Fla. 4th DCA 1982) (second motion to vacate barred when grounds could have been raised earlier)
- Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971) (issues raised or ripe could be raised in first motion barred by res judicata)
- Paul v. Wells Fargo Bank, N.A., 68 So.3d 979 (Fla. 2d DCA 2011) (res judicata not bar where first decision left unresolved issues and court invited further briefing)
- Phadael v. Deutsche Bank Trust Co. Am., 83 So.3d 893 (Fla. 4th DCA 2012) (review of motion to vacate abuse of discretion standard)