LAZARA A. RODRIGUEZ v. THE BANK OF NEW YORK MELLON, etc.

• Court: District Court of Appeal of Florida
• Decided: September 22, 2021
• Docket: 21-1778
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 22, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1778 Lower Tribunal No. 19-25195 ________________

Lazara A. Rodriguez, Appellant,

vs.

The Bank of New York Mellon, etc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.

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

Liebler, Gonzalez & Portuondo, and Adam J. Wick; Holland & Knight, LLP, and Courtney Oakes (Fort Lauderdale); Quintairos, Prieto, Wood & Boyer, P.A., and Sonia Henriques McDowell (Orlando), for appellees.

Before FERNANDEZ, C.J., and GORDO and LOBREE, JJ.

ON MOTION FOR STAY

GORDO, J. Appellant, Lazara A. Rodriguez, has filed an emergency motion to stay

eviction pending appeal of the trial court’s order denying her motion for

rehearing of its order finding section 702.036, Florida Statutes (2013)

constitutional and granting third-party purchaser’s emergency motion to lift

the stay of eviction. The motion for stay pending appeal is the latest in a

string of “emergency” motions seeking to delay Ms. Rodriguez’s eviction

from the subject property, which was foreclosed in 2018.

The underlying foreclosure action commenced in 2009 and was

litigated for nine years. On March 2, 2018, the trial court entered a consent

final judgment of foreclosure based on a joint stipulation by the parties. In

the stipulation, Ms. Rodriguez, who had been represented by counsel

throughout the course of the proceedings, agreed not to contest the

foreclosure, waived all claims and defenses to foreclosure and agreed to the

sale of the property within 90 days.

The property was sold to the Bank of New York Mellon at the

foreclosure sale in January 2019 and certificate of title was issued in

February 2019. The property was then sold to a third-party purchaser,

Vanessa Veytia, in October 2020. Meanwhile, Ms. Rodriguez continued to

occupy the property and filed a separate action to vacate the consent final

judgment of foreclosure alleging it was obtained by fraud. In February 2021,

2 Ms. Veytia filed an emergency motion for writ of possession. The trial court

granted the motion and issued a writ of possession for the subject property

on February 16, 2021. Since that time, Ms. Rodriguez has repeatedly sought

to stop the writ of possession and has remained unlawfully at the property.1

On June 5, 2021, the trial court ultimately granted a stay of the writ pending

an evidentiary hearing. On August 1, 2021, Ms. Veytia filed an emergency

motion to dismiss the fraud action under section 702.036, the finality of

judgment statute, and to lift the stay of the writ of possession. Following a

hearing on August 3, 2021, the trial court found section 702.036

constitutional, sustained Ms. Veytia’s objection to the evidentiary hearing,

granted the motion to lift the stay and ordered the Sheriff to enforce the writ

of possession after August 31, 2021. On August 20, 2021, Ms. Rodriguez

filed an “Emergency Motion for Rehearing of Order Finding Fla. Stat.

§ 702.036 Constitutional and Granting Vanessa Veytia’s Emergency Motion

1 Ms. Rodriguez filed her first emergency motion to stop the writ of possession on February 16, 2021. The trial court denied the motion, Ms. Rodriguez appealed and later voluntarily dismissed the appeal. On April 30, 2021, Ms. Rodriguez filed a second emergency motion seeking a temporary injunction to stop the writ of possession. Her motion was granted on the condition that Ms. Rodriguez post a bond. She appealed, but later voluntarily dismissed the appeal. On May 25, 2021, Ms. Rodriguez filed a third emergency motion for temporary injunctive relief to stop the writ of possession and for an evidentiary hearing to reduce the bond amount. On June 3, 2021, Ms. Rodriguez filed her fourth emergency motion for temporary injunctive relief to stop the writ of possession.

3 to Lift Stay of Eviction.” The trial court denied the motion for rehearing, 2 but

extended the stay of the writ of possession to September 10, 2021. On

September 11, 2021, the Sheriff served a notice of eviction and writ of

possession on the door of the property. Mayor Levine-Cava granted a one-

day reprieve from eviction for Ms. Rodriguez to petition this Court. The

following Monday, on September 13, 2021, Ms. Rodriguez filed the instant

motion for stay.

We address the procedural history of this case on motion to stay

because Ms. Rodriguez presents a passionate argument that her

constitutional rights have been violated by the eviction. As the record in this

case makes clear, Ms. Rodriguez consented to the final judgment of

foreclosure in 2018. Since that time, however, Ms. Rodriguez has

continuously tried to delay her inevitable eviction from the property that is

legally owned by Ms. Veytia, a bona fide third-party purchaser. Ms. Veytia,

meanwhile, has been deprived of the possession and enjoyment of her

property by the repeated delay tactics.

Ms. Rodriguez files the instant motion for stay on the eve of her eviction

without presenting any cognizable legal grounds warranting a stay. Instead,

Ms. Rodriguez seeks to appeal to this Court’s sympathies. “Unfortunately,

2 This is the order being appealed in the instant action.

4 neither the ground of fairness nor ‘the “ground” of benevolence and

compassion . . . constitute[s] a lawful, cognizable basis for granting relief to

one side to the detriment of the other, and thus cannot support [the

requested relief]: no judicial action of any kind can rest on such a

foundation.’” Phoenix Holding, LLC v. Martinez, 27 So. 3d 791, 793 (Fla. 3d

DCA 2010) (quoting Republic Fed. Bank, N.A. v. Doyle, 19 So. 3d 1053,

1054 (Fla. 3d DCA 2009)); see Firstbank Puerto Rico v. Othon, 190 So. 3d

110, 111 (Fla. 4th DCA 2015) (finding trial court abused its discretion where

it granted a continuance of a foreclosure sale based upon compassion for

the mortgagor). While we may be sympathetic to Ms. Rodriguez’s plight, our

guiding principle is the law. We are mindful that “[i]t is emphatically the

province and duty of the judicial department to say what the law is.” Marbury

v. Madison, 5 U.S. 137, 177 (1803). And the law must be applied equally to

all natural persons. Art. I, § 2, Fla. Const.; see Southern R. Co. v. Greene,

216 U.S. 400, 412 (1910).

Here, Ms. Rodriguez seeks to halt her eviction from the subject

property, which is rightfully owned by a third-party purchaser and for which

Ms. Rodriguez has not made any payments for twelve years. Ms. Rodriguez

has been afforded due process at every stage in the foreclosure and fraud

actions and continues to have her interests zealously represented.

5 However, Ms. Rodriguez would not be entitled to the remedy she seeks—

i.e., staying in her home—even if her arguments are meritorious. “[Section

702.036] provides that where title has passed to an innocent third-party

buyer, a claim for wrongful foreclosure is converted into an action for money

damages against the wrongfully foreclosing lender.” Vista Fin. Grp., LLC v.

Bank of New York Mellon, No. 3D20-602, 2021 WL 3177302, at *1 (Fla. 3d

DCA July 28, 2021). As such, Ms. Rodriguez has failed to establish

entitlement to a stay of the writ of possession pending appeal. We express

no opinion as to whatever else Ms. Rodriguez might file in any pending action

before the trial court.

Stay denied.