Nationstar Mortgage, LLC v. Diaz

227 So. 3d 726, 2017 WL 4158855
CourtDistrict Court of Appeal of Florida
DecidedSeptember 20, 2017
Docket3D16-1927
StatusPublished
Cited by12 cases

This text of 227 So. 3d 726 (Nationstar Mortgage, LLC v. Diaz) 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.

Bluebook
Nationstar Mortgage, LLC v. Diaz, 227 So. 3d 726, 2017 WL 4158855 (Fla. Ct. App. 2017).

Opinion

ROTHENBERG, C.J.

Nationstar Mortgage, LLC appeals from an order denying its amended motion to vacate the final judgment of foreclosure as void pursuant to Florida Rulé of Civil Procedure 1.540(b)(4) and/or motion for an evidentiary hearing on its prior motion to vacate pursuant to rule 1.640(b)(1). Be-causé the final judgment of foreclosure is not “void,” we affirm. 1

' FACTS

. Nationstar filed a foreclosure action against Vincent Diaz (“Vincent”), who executed both the mortgage and note, and Deisel Diaz (“Deisel”), who executed the mortgage. The initial and amended complaints alleged that the amount of principal due and owing on the note was $428,128.73,. but the complaints did not reference nor plead as due and owing the amount of $319,496.36, based on a streamline modification of the note and/or mortgage. .

On August 10, 2015, Deisel filed an un-sworn and unverified answer and affirmative defenses to the amended complaint. Vincent, however, did not defend the foreclosure action in any respect.

The following day, August 11, 2015, Na-tionstar filed a motion for an order to show cause to be issued for the entry of a final judgment of foreclosure pursuant to section 702.10(1), Florida Statutes (2015), which sets forth a procedure to expedite foreclosure cases that are not being materially defended. The proposed final judgment attached to the motion for the order to show cause provided that the amount due and owing under the note was $428,128.73, but does not reference a streamline modification of that amount, or that Nationstar was due an additional $319,496.36. Therefore, the final judgment of foreclosure was consistent with Nations-tar’s initial and amended complaints. Thereafter, the trial court issued the order to show cause, attaching Nationstar’s proposed final judgment, and setting a hearing for October 7, 2015.

On August 25, 2015, prior to the defendants being served with the order to show cause, the trial court entered the final judgment of foreclosure attached to the order to show cause.' The parties did not move for rehearing or appeal the final judgment of foreclosure. Instead, Nations-tar moved to cancel the scheduled hearing on the order to show cause, asserting that a final judgment’ of foreclosure had been entered and that the partiés would not be prejudiced by the cancellation of the hearing.

A day prior to the scheduled October 7th hearing on the order to show cause, Nationstar filed a motion to amend the final judgment of foreclosure nunc pro tunc by interlineation pursuant to rule 1.540(a) (“motion to amend”), asserting that when preparing for the foreclosure sale, it discovered that the final judgment mistakenly omitted the $319,496.36 streamline modification, and therefore, the total amount due and owing to Nationstar was actually $834,010.90.

As the trial court had not ruled on the motion to cancel the hearing on the order to show cause, the parties appeared at the scheduled October 7th hearing. However, the trial court did not hear argument relating to the order to show cause because Deisel’s counsel informed the trial court that his client had conceded and consented to the final judgment of foreclosure and did not oppose the entry of the final judgment.

Nationstar withdrew its motion to amend the final judgment on October 21, 2015, and on that same day, Nationstar filed a motion to vacate the final judgment of foreclosure pursuant to rule 1.540(b)(1) based on mistake, inadvertence, or excusable neglect, asserting that, after the trial court entered the final judgment, Nations-tar discovered it had not included the streamline mortgage in the final judgment executed by the trial court. In December 2015, following a non-evidentiary hearing, the trial court denied the motion to vacate. Nationstar did not file a motion for rehearing or appeal the denial of its rule 1.540(b)(1) motion to vacate.

Nationstar’s attempt to vacate the final judgment of foreclosure continued. In December 2015, Nationstar filed another motion to vacate the final judgment, but this time, the motion claimed that the final judgment was void pursuant to Florida Rule of Civil Procedure 1.540(b)(4), and requested an evidentiary hearing on its prior motion to vacate filed pursuant to rule 1.540(b)(1), which had been previously denied by the trial court. Although Na-tionstar’s second motion to vacate the final judgment was still pending, Nationstar did not seek a stay of the foreclosure sale, and the foreclosed property was sold at a foreclosure sale to AG 07 Investments, LLC, for $533,900. AG 07 Investments is not affiliated with the foreclosing lender or foreclosed owner, and at the time of the foreclosure sale, there was no lis pendens filed in the official records regarding Na-tionstar’s rule 1.540(b)(4) motion to vacate.

Nationstar’s rule 1.540(b)(4) motion to vacate arguments were premised not on a violation of Nationstar’s rights, but rather upon alleged violations of the defendants’ rights. For example, Nationstar argued that the trial court lacked authority to enter the final judgment of foreclosure pursuant to section 702.10 because an answer and affirmative defenses had been filed, and that the defendants’ (as opposed to Nationstar’s) due process rights were denied because the final judgment of foreclosure was entered prior to the scheduled October 7th hearing on the order to show cause. Thus, Nationstar argued that the final judgment was void. Nationstar’s counsel, however, acknowledged at the October 7, 2015 hearing, that Deisel’s counsel had informed the trial court that Deisel had consented to, conceded to, and did not oppose the entry of the final judgment, and that Deisel was now also consenting to the entry of the amended final judgment and did not oppose Nationstar’s rule 1.540(b)(4) motion to vacate. The trial court continued the hearing to June 24, 2016.

Prior to the continued hearing, Nations-tar filed an amended motion to vacate the judgment as void pursuant to rule 1.540(b)(4) and/or a motion for an eviden-tiary hearing on its prior motion to vacate pursuant to rule 1.540(b)(1) (“amended rule 1.540(b)(4) motion to vacate”), asserting that AG 07 Investments was opposing the amended rule 1.540(b)(4) motion to vacate. Nationstar argued that any party affected by a void judgment could challenge the void judgment; Nationstar has an interest in vacating the allegedly void final judgment; and Nationstar discovered that it mistakenly did not include the streamline modification in the final judgment when preparing for the order to show cause hearing.

At the June 24, 2016 hearing on the amended rule 1.540(b)(4) motion to vacate, the trial court noted that the defendants were not claiming a due process violation, and that Nationstar waived its due process rights by submitting the proposed final judgment with the order to show cause. The trial court denied Nationstar’s amended rule 1.540(b)(4) motion to vacate and/or motion for an evidentiary hearing. Na-tionstar’s appeal followed.

ANALYSIS

Nationstar contends that the final judgment of foreclosure is void because it was entered without notice and an opportunity to be heard, and therefore, the parties’, including Nationstar’s, due process rights were violated.

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Cite This Page — Counsel Stack

Bluebook (online)
227 So. 3d 726, 2017 WL 4158855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationstar-mortgage-llc-v-diaz-fladistctapp-2017.