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concluding that the appellants were not entitled to an evidentiary hearing and their Rule 1.540(b) motion was improper because the asserted allegations were "before the trial court prior to the entry of the amended final judgment of foreclosure"
Summary of this case from Pimienta v. RosenfeldOpinion
No. 3D19-1805
05-13-2020
Ricardo LOPEZ, et al., Appellants, v. WILMINGTON TRUST, N.A., etc., Appellee.
Jacobs Legal, PLLC, and Bruce Jacobs, for appellants. Akerman LLP, and Nancy M. Wallace (Tallahassee) and William P. Heller, (Fort Lauderdale), for appellee.
Jacobs Legal, PLLC, and Bruce Jacobs, for appellants.
Akerman LLP, and Nancy M. Wallace (Tallahassee) and William P. Heller, (Fort Lauderdale), for appellee.
Before LOGUE, HENDON, and LOBREE, JJ.
HENDON, J.
Ricardo Lopez, et al. ("Lopezes"), appeal from the denial of their Verified Motion to Vacate Plaintiff's Final Summary Judgment of Foreclosure Pursuant to Fla. R. Civ. P. 1.540(b) ("Motion to Vacate"). We affirm.
In February 2007, the Lopezes executed a mortgage in favor Countrywide Home Loans, Inc. ("Countrywide"). In 2012, the underlying foreclosure action was filed against the Lopezes after they allegedly failed to make the April 2009 payment and all subsequent payments. The Lopezes filed an answer and asserted several affirmative defenses to the operative complaint and also filed counterclaims.
After years of litigation, the trial court entered an amended final judgment of foreclosure in favor of Wilmington Trust, N.A. and against the Lopezes as to the foreclosure action and the counterclaims, reflecting that the counterclaims were involuntarily dismissed. The Lopezes filed a motion for rehearing, which the trial court denied on May 22, 2019. The Lopezes did not appeal the amended final judgment of foreclosure.
On July 19, 2019, the Lopezes filed the Motion to Vacate based, in part, on fraud. Following a non-evidentiary hearing, the trial court denied the Lopezes’ Motion to Vacate. This appeal followed, and we review the denial of the Motion to Vacate for an abuse of discretion. See Handel v. Nevel, 147 So. 3d 649, 651 (Fla. 3d DCA 2014) ("We review a trial court's ruling on a rule 1.540(b) motion to vacate for an abuse of discretion, and we will not disturb that ruling unless no reasonable judge would have reached the same decision." (citations omitted)).
In the Motion to Vacate, the Lopezes raised numerous issues that were before the trial court prior to the entry of the amended final judgment of foreclosure, such as an alleged rubber-stamped, forged, and backdated indorsement on the Countrywide note; Wilmington Trust's failure to produce discovery; and lack of candor to the lower tribunal. Rule 1.540(b) motions are often improper "attempts to rehash a matter fully explored at trial." See Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994). Any matter asserted in the Lopezes’ rule 1.540(b) motion that was before the trial court prior to the entry of the amended final judgment of foreclosure is improperly raised in a rule 1.540(b) motion. A rule 1.540(b) motion cannot be utilized "to overcome [a party's] failure to timely challenge the original final judgment." Baez v. Perez, 201 So. 3d 692, 694 (Fla. 4th DCA 2016) (quoting Beal Bank, S.S.B., Inc. v. Sherwin, 829 So. 2d 961, 962 (Fla. 4th DCA 2002) ). Further, the Lopezes argue in their initial brief that the trial judges were not impartial and therefore, the trial judges should have granted their motions to disqualify. Not only was this issue addressed in the lower tribunal prior to the entry of the final judgment of foreclosure, but it was also not raised in the Lopezes’ Motion to Vacate. Accordingly, reversal of order denying the Motion to Vacate is not warranted based on any of these reasons.
The Lopezes also argue that they were entitled to an evidentiary hearing to address the assertions of fraud. We disagree.
To be entitled to an evidentiary hearing on a motion to vacate a final judgment under rule 1.540(b)(3), the moving party must state the circumstances constituting the fraud with particularity and "should explain why the fraud, if it exists, would entitle the movant to have the judgment set aside." Flemenbaum, 636 So. 2d at 580. A review of the Lopezes’ Motion to Vacate reflects allegations of fraud based on the alleged rubber-stamped, forged, and backdated indorsement in the instant case, and assertions of rubber-stamped blank indorsements in other cases. As already stated, the rule 1.540(b) motion asserting allegations regarding the note in the instant case cannot be utilized to overcome the Lopezes’ "failure to timely challenge the original final judgment." Baez, 201 So. 3d at 694 (quoting Beal Bank, 829 So. 2d at 962 ). Further, as to the allegations of rubber-stamped blank indorsements in other cases, the Lopezes failed to explain why the alleged fraud in those other cases would entitle the Lopezes to have the amended final summary judgment entered against them vacated. As such, the Lopezes were not entitled to an evidentiary hearing.
The remaining arguments raised by the Lopezes lack merit and do not warrant discussion. Accordingly, we affirm the order denying the Lopezes’ Motion to Vacate.
Affirmed.