GERALDO LINARES

v.

BANK OF AMERICA, N.A.

HENDON, J.

Geraldo Linares (“Borrower”) appeals from the denial of his “Motion to

Rescind Foreclosure Sale and Verified [Motion] to Vacate Final Judgment Pursuant to F.R.C.Pr. 1.540(b)” (“motion for relief from judgment”). For the reasons that follow, we affirm.

Bank of America, N.A., etc. (“the Bank”), filed a foreclosure action against the Borrower. On June 10, 2013, a final judgment of foreclosure was entered in favor of the Bank. The Borrower did not appeal the final judgment of foreclosure.

On August³, 2015, more than two years after the final judgment of foreclosure was entered, the Borrower filed the motion for relief from judgment, asserting that “the court may relieve a party from final judgment due to mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or that the decree is void.” The Borrower asserted that he applied for a loan modification with the Bank in 2009, the Bank offered him a trial plan for three months, and he continued to make the payments for twenty-four months. However, in March 2011, the Bank notified him that he was not being considered for a permanent loan modification because he had notified the Bank that he was not interested in modifying the loan. In the motion for relief from judgment, the Borrower claimed that he did not notify the Bank that he was not interested in a loan modification. The Borrower further asserted that, at the final foreclosure hearing, he informed the trial court that the Bank had approved him for a permanent loan modification, but the trial court nonetheless entered a final judgment of foreclosure against him and in favor of the

Bank.

At the conclusion of the evidentiary hearing, the trial court denied the Borrower’s motion for relief from judgment. The Borrower’s appeal followed.¹

“The denial of a motion for relief from final judgment under Florida Rule of Civil Procedure 1.540(b) is reviewed for an abuse of discretion.” Noel v. James B. Nutter & Co., 232 So. 3d 1112, 1115 (Fla. 3d DCA 2017); see also Voce v. Wachovia Mortg., FSB, 174 So. 3d 545, 547 (Fla. 4th DCA 2015) (quoting Fla. Philharmonic Orchestra, Inc. v. Bradford, 145 So. 3d 892, 894 (Fla. 4th DCA 2014)) (“The standard of review of an order denying a Rule 1.540(b) motion for relief from judgment is abuse of discretion.”).

The Borrower sought relief from the final judgment of foreclosure pursuant to Florida Rule of Civil Procedure 1.540(b), which provides as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than¹ year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

(underlining added). Here, despite not specifying under which part of rule 1.540(b) he was proceeding, based on the language used in the motion for relief from judgment, the Borrower proceeded under (b)(1) based on mistake, inadvertence, surprise, or excusable neglect; (b)(3) based on fraud² or misrepresentation; and (b)(4) asserting that the final judgment of foreclosure is void. As stated in rule 1.540(b), for reasons (1), (2), and (3), the motion shall be filed “not more than¹ year after the judgment, decree, order, or proceeding was entered or taken.” The portion of the Borrower’s motion seeking relief from the final judgment of foreclosure based on rule 1.540(b)(1) and (3) was untimely filed

because the motion was not filed within one year of the entry of the final judgment of foreclosure.³ The Borrower also sought relief under rule 1.540(b)(4), asserting that the final judgment of foreclosure is void. Based on the assertions set forth in the motion for relief from judgment,⁴ the trial court could not have granted relief to the Borrower because, as a matter of law, the final judgment of foreclosure is not void. See Miller v. Preefer,¹ So. 3d 1278, 1282 (Fla. 4th DCA 2009) (“A void judgment is one entered in the absence of the court’s jurisdiction over the subject matter or the person.”). Thus, the trial court did not abuse its discretion by denying the Borrower’s motion for relief from judgment, and therefore, we affirm the order under review.⁵

Based on our determination that the trial court could not have granted the Borrower’s motion for relief from judgment based on the assertions set forth in the motion, we do not need to address the remaining arguments raised by the Borrower relating to the evidentiary hearing.

Affirmed.

motion for relief from judgment, the Borrower litigated the issue regarding the loan modification at the final foreclosure hearing.