BANK OF AMERICA, N.A. v. LAZARA A. RODRIGUEZ

• Court: District Court of Appeal of Florida
• Decided: February 23, 2022
• Docket: 21-1557
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 23, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1557 Lower Tribunal No. 19-25195 ________________

Bank of America, N.A., Petitioner,

vs.

Lazara A. Rodriguez, Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.

Liebler, Gonzalez & Portuondo, and Adam J. Wick and Alan M. Pierce, for petitioner.

Jacobs Legal, PLLC, and Bruce Jacobs, for respondent.

Before MILLER, LOBREE and BOKOR, JJ.

PER CURIAM. Bank of America, N.A. petitions for a writ of prohibition or certiorari

seeking to quash the trial court’s July 28, 2021 order to the extent it denied

Bank of America’s motions to dismiss based on subject-matter jurisdiction

and litigation privilege.

In the underlying independent action giving rise to the instant petition,

Rodriguez seeks to vacate a consent final judgment of foreclosure obtained

in a previous foreclosure action. Instead of filing a motion in the foreclosure

case within a year of judgment based on intrinsic fraud, as provided in Florida

Rule of Civil Procedure 1.540, Rodriguez filed an independent action more

than a year after final judgment alleging extrinsic fraud. After a review of the

record, including the briefings of the parties,1 we conclude that despite

Rodriguez’s characterization, the allegations constitute intrinsic fraud.

Therefore, “the trial court’s denial of the motion to dismiss on litigation

privilege grounds constitutes irreparable harm as a matter of law.” Bank of

N.Y. Mellon v. Abadia, 314 So. 3d 595, 596 (Fla. 3d DCA 2020) (citations

omitted).

1 Counsel for respondent failed to comply with the September 20, 2021, noon deadline for filing its response, instead filing its response at 6:23 p.m. However, counsel filed a motion to accept the response as timely filed, claiming inadvertence and mistake, which petitioner opposed. Upon consideration, we grant the motion to accept the response as timely filed and deny petitioner’s motion to strike.

2 In the previous foreclosure action, the burden of proof as to each

required element of foreclosure fell on the bank. Rodriguez had the right to

make the bank introduce evidence, present witnesses subject to cross-

examination, and prove its case before a finder of fact. She didn’t exercise

that right. Instead, Rodriguez entered into a stipulated final judgment. After

nine years of litigation, she and the bank voluntarily agreed that she hadn’t

paid her mortgage, that she owed money, and that she wouldn’t contest

foreclosure. In return, the bank promised not to sell the house within ninety

days from the stipulated final judgment and not to seek a deficiency judgment

resulting from the sale. Despite the stipulated judgment, Rodriguez files the

underlying action seeking to undo the benefit of her bargain, the stipulated

final judgment of foreclosure, claiming that the judgment was procured by

fraud.

Because Rodriguez’s allegations constitute intrinsic fraud, rather than

extrinsic fraud, the one-year bar under Florida Rule of Civil Procedure 1.540

applies. Greenwich Ass’n, Inc. v. Greenwich Apts., Inc., 979 So. 2d 1116,

1118–19 (Fla. 3d DCA 2008) (“[I]ntrinsic fraud is defined as ‘the presentation

of misleading information on an issue before the court that was tried or could

have been tried. A challenge to a final judgment based upon intrinsic fraud

must be brought by filing a timely motion in the original trial court.’”) (internal

3 citations omitted); see also Parker v. Parker, 950 So. 2d 388, 391 (Fla. 2007)

(“Under rule 1.540(b), relief from a judgment based on intrinsic fraud must

be sought by motion within one year of its entry.”).

Despite filing an independent action, Rodriguez cannot redefine and

change the underlying claim from intrinsic to extrinsic fraud. See id. at 391–

92 (“In other words, extrinsic fraud occurs where a defendant has somehow

been prevented from participating in a cause. . . . This Court . . . has

expressly held that false testimony given in a proceeding is intrinsic fraud.”).

The record demonstrates that Rodriguez participated, for years, represented

by able counsel, in the underlying foreclosure action. No party compelled

Rodriguez to agree to a consent final judgment. Rodriguez offered no

allegations (or proof) that the bank engaged in extrinsic fraud, collateral to

the issues in the foreclosure case, to secure the results in that case. No one

prevented her from continuing to defend her case, or pursue counterclaims

or affirmative defenses, which she did ably for years until entry of the consent

judgment on March 2, 2018. Instead, the alleged fraud of which Rodriguez

complains in the underlying independent action to vacate the foreclosure

sale (without tying any of the alleged fraud to Rodriguez’s case specifically)

was intrinsic—that is, to the extent it existed it was “baked in” to the

correspondence and statements from the bank and was there all along for

4 discovery and exploration in the original foreclosure case. It “pertain[ed] to

the issues that have been tried or could have been tried.” Id. at 391

(emphasis added).

The consent judgment on its face reveals that it was a bargained-for

exchange. Both sides, Rodriguez, and the foreclosing bank, were

represented by counsel. Both sides gave up certain rights in exchange for

certainty and finality. Specifically, Rodriguez “consent[ed] to the entry of a

final judgment of foreclosure” and, in exchange, Plaintiff (a) waive[ed], its

right, if any, to a deficiency judgment . . . and (b) agree[d] the foreclosure

sale date [would] not be set earlier than 90 days from entry of the final

judgment of foreclosure.” Rodriguez chose the certainty of the bank not

seeking a deficiency judgment and the assuredness that no sale would occur

for three months; she has bettered this three-month deferral by almost three-

and-a-half years and counting. In exchange, Rodriguez represented that

she “waive[d] all claims against the Plaintiff and any defenses to this

foreclosure action.” (Emphasis added). Rodriguez litigated her

foreclosure case for years until deciding to negotiate and agree to a

stipulated consent final judgment. Either side could have sought to continue

the foreclosure. Either side could have pursued claims or defenses. She

chose negotiation and the certainty of an agreed-to judgment. She doesn’t

5 get a late do-over because of intrinsic fraud. See, e.g., Alexander v. First

Nat’l Bank of Titusville, 275 So. 2d 272, 274 (Fla. 4th DCA 1973) (explaining

the limited application of an independent action for fraud based upon the text

of the relevant rule and public policy favoring finality, reaffirming the

requirement that intrinsic fraud be brought within one year in the original

action and not via an independent action). Accordingly, we grant the petition

for certiorari, 2 quash the order under review, and remand for proceedings

consistent with this opinion.

Petition for certiorari granted, order quashed, and cause remanded.

2 Because the certiorari relief granted herein disposes of the issues in this petition, we decline to address the request for prohibition.