Citibank, N.A., the plaintiff in a mortgage foreclosure action, appeals a non-final order denying its motion to vacate final judgment of foreclosure. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). We reverse.
After the borrower defaulted on a note secured by a mortgage on real property, Citibank filed a foreclosure complaint. Citibank obtained a final judgment of foreclosure in March 2013, and a foreclosure sale was set for a date in July 2013.
In June 2013, a non-party, Diana Diaz, moved to cancel the sale. Her motion alerted Citibank that the owners of the property at the time the note and mortgage were executed had quit-claimed the property to Diaz and another person, Luis Garcia. Diaz and Garcia actually were the record title owners at the time the foreclosure complaint was filed. They were not named in the foreclosure action or on the final judgment; therefore, them interests were not foreclosed. Diaz did not move to intervene in the foreclosure action or to vacate the final judgment of foreclosure. Instead, she filed a separate action to quiet title to the property.
Citibank moved to vacate the final judgment of foreclosure in October 2014, a year and seven months after the judgment was filed and a year and four months after Diaz alerted it to the existence of the record title owners. Without intervening, Diaz filed a response, arguing that the motion was untimely. The trial .court denied the motion without explanation. This appeal followed.
A trial court’s ruling on a motion to vacate generally is reviewed for abuse of discretion. Suntrust Mortg. v. Torrenga,
The fee simple title holder is an indispensable party in an action to foreclose a mortgage on property. Oakland Props. Corp. v. Hogan,
In English v. Bankers Trust Co. of California, N.A.,
On appeal, the borrower argued she could not be joined in the new action be
The trial court correctly concluded that the first action was void. Significantly, this is not a re-foreclosure to extinguish a junior lienor. Rather, this second action is an initial foreclosure as to the fee simple owner. Because Lesa Investments, the undisputed owner, was not a party to the first suit, the initial foreclosure judgment could not result in a valid sale, as the owner of the fee simple title was an indispensable party. Community Fed. Svgs. and Loan Ass’n v. Wright,452 So.2d 638 , 640 (Fla. 4th DCA 1984).
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We note that, more than a century ago, the Florida Supreme Court recognized that “a foreclosure proceeding resulting in a final decree and a sale of the mortgaged property, without the holder of the legal title being before the court will have no effect to transfer his title to the purchaser at said sale.” Jordan v. Sayre,24 Fla. 1 ,3 So. 329 , 330 (1888). If the foreclosure proceeding has no effect to transfer title because the legal title holder has not been joined, it is simply another way of saying that the foreclosure proceeding is void.
Id. (emphasis added). This court explained that the borrower’s res judicata argument would have merit if the first foreclosure sale were not void. Id. Similarly, Citibank’s foreclosure judgment was void for failing to join indispensable parties. See also Lambert v. Dracos,
If the trial court denied the motion to vacate because of Citibank’s delay in filing it, that was not a proper reason for denial. Florida Rule of Civil Procedure 1.540(b) allows relief from a final judgment for various reasons, including that the judgment is void, which falls under subdivision 1.540(b)(4). “The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.” Fla. R. Civ. P. 1.540(b). Thus, the time limit for void judgments is “within a reasonable time.” Id. However, that language has been construed to mean almost no time limit. Kirchoff v. Jenne,
Accordingly, we reverse the order denying Citibank’s motion to vacate final judgment of foreclosure and direct the trial court on remand to grant the motion.
Reversed and Remanded.