SANDRA READ
v.
DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE ASSET - BACKED PASS - THROUGH CERTIFICATES, SERIES 2005-Q01, ET AL
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The appellate court affirmed the denial of a motion to vacate a default and foreclosure judgment. The appellant argued her attorney's suspension and lack of notice prevented her from defending the case, but the court found her motion facially insufficient.
No, the trial court did not err in denying the motion. The motion was facially insufficient because it failed to allege specific facts regarding the attorney's status and the insufficiency of service.
[1] A motion under Florida Rule of Civil Procedure 1.540(b) to vacate a judgment must contain sufficient factual allegations regarding service of notice on counsel and counse…
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Join FLexlaw to unlock all legal intelligence“Her motion asserted that the default and final judgment should be vacated because her lawyer was suspended from the practice of law for ninety days and thereafter did not give her notice of critical proceedings following the end of the bankruptcy stay.”
Describes the core assertion of the appellant's motion to vacate the judgment.
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Join FLexlaw to unlock all legal intelligenceSandra Read sought to vacate a default and final judgment of foreclosure, alleging her attorney was suspended from practice and failed to notify her o…
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- 2 - PER CURIAM. Sandra Read appeals from an order denying a motion under Florida Rule of Civil Procedure 1.540(b) in which she requested that the trial court vacate a default and a final judgment of foreclosure. Her motion asserted that the default and final judgment should be vacated because her lawyer was suspended from the practice of law for ninety days and thereafter did not give her notice of critical proceedings following the end of the bankruptcy stay. It also alleged that her lawyer was at some point hospitalized.
Factually, Ms. Read's claim depends on whether her attorney of record received the notice sent, whether there was some reason service on him was insufficient here, or whether he was, in fact, still the attorney of record for the purposes of Florida Rule of Civil Procedure 1.080. While this record does not foreclose that she might make allegations as to these facts, the rule 1.540(b) motion that she filed failed to do so. Nor did she allege that her lawyer was never reinstated to the practice of law following his suspension or that he had otherwise stopped practicing law as a member of the bar at the time that he was sent the notices following the end of the bankruptcy stay in this case.
We affirm the trial court's denial of her motion without further comment, but we note that nothing in our affirmance should be read as foreclosing Ms. Read's right to refile in the circuit court a facially sufficient and colorable claim for relief under rule 1.540(b)(4) based on the alleged failures of notice and due process that occurred prior to the entry of the judgment if she is able to do so in a way that would entitle her to an evidentiary hearing on her claims. See Minda v. Minda, 190 So. 3d 1126, 1127-28 (Fla. 2d DCA 2016) (discussing why insufficient rule 1.540 motions do not foreclose the filing of amended motions to meet the sufficiency standards, which the trial court should then consider after an evidentiary hearing).
- 3 - Affirmed. KHOUZAM, C.J., and SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.