Excusable NeglectNYC Const v. Jerome, No. 4D21-1143 (Fla. 4th DCA, Feb. 2, 2022)The Fourth District found that a failure to appear at a hearing due to a calendaring error is the type of excusable neglect that warrants granting a motion for relief from judgment.In brief: Florida Rule of Civil Procedure 1.540(b) allows a trial court to set aside a final judgment for excusable neglect. Excusable neglect is found where inaction results from an error or reasonable misunderstanding.

See Nos. 2D14-858, 2D14-4436, 2015 WL 8321268 (Fla. 2d DCA Dec. 9, 2015). Though Bank of America had been defaulted in the Association’s claim of lien foreclosure action, the appellate court found the trial court erred in denying Bank of America’s Florida Rule of Civil Procedure 1.540(b) motion. Judge Black delivered the opinion of the court finding that the trial court’s 2011 final judgment was void for two key reasons: (1) Bank of America’s 2004 mortgage lien encumbering the property took priority over the Association’s 2011 claim of lien; and (2) Florida’s lis pendens statute conferred exclusive jurisdiction to the court in Bank of America’s 2009 mortgage foreclosure to adjudicate any interest or encumbrance in the subject property.

Instead, it was mistake. See Fla. R. Civ. P. 1.540(b)(1). The bank alleged that it dismissed its case based on advice of counsel that the claim was time-barred.

I. FLORIDA STATE CASES – ILAN NIEUCHOWICZInverse Condemnation: landowner entitled to money damages from state for inverse condemnation resulting from newly enacted law restricting landowner’s use of equipment and improvements made to further a now restricted business purpose -- State of Florida v Stephen D. Basford d/b/a Basford Farms, No. 1D12-4106 (Fla. 1st DCA July 24, 2013) (affirmed)Inverse Condemnation: cause of action for inverse condemnation resulting from new law accrues when new law becomes enforceable and not when law is enacted -- State of Florida v Stephen D. Basford d/b/a Basford Farms, No. 1D12-4106 (Fla. 1st DCA July 24, 2013) (affirmed)Jurisdiction: after final judgment rendered, trial court loses jurisdiction over action except to enforce judgment(s) or to amend or vacate judgment(s) pursuant to Fla. R. Civ. P. 1.540(b) -- NAFH Nat’l Bank v. Aristizabal, No. 4D13-83 (Fla. 4th DCA July 24, 2013)Judgment: motion to vacate or set aside judgment for “intrinsic fraud” (i.e. judgment rendered on fraudulent instruments or false testimony), pursuant to Fla. R. Civ. P. 1.540(b), must be brought within 1 year from entry of judgment -- NAFH Nat’l Bank v. Aristizabal, No. 4D13-83 (Fla. 4th DCA July 24, 2013)Attorneys’ Fees: defendant not considered “prevailing party” entitled to recover fees when plaintiff voluntarily dismissed action after dispute became moot and where proceeding would have been “waste of resources” -- Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., No. 2D12-1177 (Fla. 2d DCA July 26, 2013)II. 11TH CIRCUIT CASES – NONEIII.

In affirming the ‎denial, the Third District Court of Appeal reiterated that a movant is not entitled to an evidentiary ‎hearing on a motion for relief from judgment where the movant fails to “demonstrate a prima facie ‎case of fraud.”‎In Azran Miami 2, LLC v. U.S. Bank Trust, N.A., Case No. 3D20-1712 (Fla. 3d DCA, September 15, ‎‎2021), the Third District Court of Appeal considered whether it was improper to deny a borrower’s ‎motion to vacate a final judgment under Fla. R. Civ. P. 1.540(3) without holding an evidentiary ‎hearing. After denying oral argument, the Third District affirmed the trial court’s denial and confirmed ‎binding precedent that requires that a movant alleging fraud “demonstrate a prima facie case of ‎fraud, not just nibble at the edges of the concept.”

036 / Eviction: Former borrower failed to establish entitlement to stay of writ of possession pending appeal; section 702.036 solely provides for monetary damages against the wrongfully foreclosing lender where the party seeking relief from the final judgment of foreclosure consented to such foreclosure and title has passed to an innocent third-party buyer – Rodriguez v. Bank of N.Y. Mellon, No. 3D21-1778 (Fla. 3d DCA Sept. 22, 2021) (denying motion to stay)Foreclosure / HOA Lien: County court erred in ordering its prior final order void and vacating it pursuant to Florida Rule of Civil Procedure 1.540(b)(4) because its final order was res judicata, where appeals to the circuit court were dismissed, and the county court had both personal and subject matter jurisdiction over this class of cases – Ge v. Swearingen & Assocs., Inc., No. 5D21-262 (Fla. 5th DCA Sept. 24, 2021) (reversed and remanded)Financial Services UpdateRESPA / Standing: Only borrowers have standing to assert claims under RESPA – Amelina v. Selene Fin. LP, No. 3:21-cv-00512 (S.D. Cal. Sep. 20, 2021)FDCPA / Debt Collector / Servicers: A loan servicer is not a “debt collector” under the FDCPA – ­Amelina v. Selene Fin. LP, No. 3:21-cv-00512 (S.D. Cal. Sep. 20, 2021)Title Insurance UpdateMotion to Remand / Amount in Controversy: Title insurer improperly removed case where it failed to prove, by the preponderance of the evidence, that the amount in controversy exceeded $75,000 – U.S. Bank Nat’l Ass’n v. Fidelity Nat’l Title Grp., Inc., No. 2:20-cv-02239 (D. Nev. Sept. 20, 2021) (granting motion to remand)

duty because right to sue belonged to LLC, where LLC suffered the direct harm and harm to individual was indirect - Home Title Co. of Md., Inc., v. LaSalla, No. 2D17-273 (Fla. 2d DCA Nov. 16, 2018) (reversed and remanded)Foreclosure / Leave to Amend: court abused its discretion in denying borrower an opportunity to amend his answer and affirmative defenses in seven-year-old case because the "justice factor" outweighed the prejudice to opposing party - Sorenson v. Bank of New York Mellon, No. 2D16-273 (Fla. 2d DCA Nov. 16, 2018) (reversed and remanded)Annexation Ordinance / Time Limitation: appeal regarding a municipal annexation must be filed within thirty days of the passage of annexation ordinance - The City of Palm Beach Gardens v. Oxenvad, No. 4D18-1758 (Fla. 4th DCA Nov. 14, 2018) (petition granted)Foreclosure / Final Judgement: borrower's actual knowledge of final judgment may control whether the summary judgment is void or voidable, and a summary judgment may be set aside under Florida Rule of Civil Procedure 1.540 outside of the one-year limitation - Richard v. Bank of America, N.A., No. 4D18-1581 (Fla. 4th DCA Nov. 14, 2018) (reversed and remanded).Financial Services UpdateTCPA / Consent: because plaintiffs gave consent to receive advertising faxes as part of approved supplier program, no reasonable factfinder could determine that faxes were unsolicited to support a violation of the TCPA - Gorss Motels, Inc. v. Safemark Sys., LP, No. 6:16-cv-1638-Orl-31DCI (M.D. Fla. Nov. 15, 2018) (granting summary judgment for defendant)FDCPA / Dismissal: debt collector sufficiently identified creditor even though it did not use the word "creditor," and debtor could be expected to connect the dots on a collection letter that lists name "Medical Center Enterprise" next to an outstanding balance - Lait v. Med.

2016) (petition granted; order quashed; remanded).Foreclosure/Standing:trial court erred in granting borrower’s motion for involuntary dismissal based on bank’s failure to prove standing, where bank attached a copy of the blank endorsed note when it filed complaint and then, at trial, bank introduced identical original blank endorsed note -ALS-RVC, LLC v. Garvin, et al., No. 4D15-2538 (Fla. 4thDCA August 3, 2016) (reversed and remanded).Foreclosure/Relief from Judgment:orders vacating final judgment of foreclosure, certificate of sale, and certificate of title reversed, where motion to vacate final judgment did not allege proper grounds for relief pursuant to Florida Rule of Civil Procedure 1.540, and which grounds were already addressed in a prior motion and should have been raised on appeal -Baez, et al. v. Perez, No. 4D16-456 (Fla. 4thDCA August 3, 2016) (reversed).Foreclosure/Default Notice:lender substantially complied with mortgage by mailing default notice to borrower’s primary address, which was typewritten underneath borrower’s signature on mortgage, but was not notice address listed on mortgage - Federal National Mortgage Association v. Hawthorne, et al., No. 4D15-3505 (Fla. 4thDCA August 3, 2016) (reversed and remanded).Foreclosure/Service of Process:trial court erred in denying motion to quash constructive service on limited liability company, where process server only attempted service at company's designated address, but failed to perform a diligent search and inquiry as to whereabouts of individuals who could bind company -Green Emerald Homes, LLC, v. The Bank of New York Mellon, f/k/a the Bank of New York, as Trustee for the Certificate Holders of CWABS Inc., a

A powerful remedy that is distinctive in natureAs a unique statutory scheme, pay-to-play landlord-tenant litigation replaces many rules of civil procedure. For example, it prohibits the tenant from obtaining relief from judgment like those provided by Florida Rule of Civil Procedure 1.540, in which excusable neglect is usually a factor. Further, instead of a traditional motion for extension of time under Florida Rule of Civil Procedure 1.090, F.S. §83.232(3) allows tenants to pursue extra time to pay only if they do so before the date the money is due.

The trial court denied thedefendants’ motion. The Fourth DCA ruled that a trial court loses jurisdiction to entertain a motion to vacate a final judgment under Florida Rule of Civil Procedure 1.540 (b) after one year, including motions for “fraud on the court,” and upheld the trial court’s ruling. Only “extrinsic fraud,” i.e., that fraud which is outside and collateral to the issues tried in the case, may be raised beyond the one year period.NAFH Nat.