Garno v. Bank of America, N.A.

District Court of Appeal of Florida

Garno v. Bank of America, N.A.

209 So. 3d 5, 2015 Fla. App. LEXIS 5877

CourtDistrict Court of Appeal of Florida

DecidedApril 22, 2015

DocketNo. 1D14-1994

StatusPublished

This text of 209 So. 3d 5 (Garno v. Bank of America, N.A.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Garno v. Bank of America, N.A., 209 So. 3d 5, 2015 Fla. App. LEXIS 5877 (Fla. Ct. App. 2015).

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Opinion

PER CURIAM.

Appellants appeal the trial court’s order dismissing without prejudice the foreclosure action filed on behalf of their former client Bank of America against Appellees Sunder J. Aswani and Poonam S. Aswsani. The trial court’s ground for dismissal was Appellant Garno’s purported fraud on the court.

We agree with Appellant that she was denied her right to due process, because she was not provided with notice of the hearing leading to the dismissal and the trial court’s findings of fraud on the court. See Dep’t of Children & Families v. W.H., 109 So.3d 1269, 1270 (Fla. 1st DCA 2013) (holding that the lack of notice and lack of an evidentiary healing violated the Department’s right to due process).

We also agree that the record does not support the trial court’s finding that Gamo perpetrated a fraud on the court. “[Fjraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 252 (Fla. 1st DCA 2012). Here, nothing in the record supports a finding that Garno engaged in any act of deception, deliberate or otherwise.

Therefore, we reverse the order of dismissal and remand for the trial court to reinstate Bank of America’s foreclosure action.

REVERSED and REMANDED with instructions.

THOMAS, CLARK, and WETHERELL, JJ., concur.

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PER CURIAM.

Appellants appeal the trial court’s order dismissing without prejudice the foreclosure action filed on behalf of their former client Bank of America against Appellees Sunder J. Aswani and Poonam S. Aswsani. The trial court’s ground for dismissal was Appellant Garno’s purported fraud on the court.

We agree with Appellant that she was denied her right to due process, because she was not provided with notice of the hearing leading to the dismissal and the trial court’s findings of fraud on the court. See Dep’t of Children & Families v. W.H., 109 So.3d 1269, 1270 (Fla. 1st DCA 2013) (holding that the lack of notice and lack of an evidentiary healing violated the Department’s right to due process).

We also agree that the record does not support the trial court’s finding that Gamo perpetrated a fraud on the court. “[Fjraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 252 (Fla. 1st DCA 2012). Here, nothing in the record supports a finding that Garno engaged in any act of deception, deliberate or otherwise.

Therefore, we reverse the order of dismissal and remand for the trial court to reinstate Bank of America’s foreclosure action.

REVERSED and REMANDED with instructions.

THOMAS, CLARK, and WETHERELL, JJ., concur.

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209 So. 3d 5, 2015 Fla. App. LEXIS 5877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garno-v-bank-of-america-na-fladistctapp-2015.

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