TERESA ESCOBAR DE ARDILA, APPELLANT,
v.
CHASE MANHATTAN MORTGAGE CORPORATION AND SOUTH FLORIDA PROPERTY INVESTORS CORPORATION, APPELLEES
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Mortgagor Teresa Escobar De Ardila appealed an order denying her motion for rehearing regarding a foreclosure sale. The court dismissed the appeal for lack of subject matter jurisdiction because Escobar filed her notice of appeal more than 30 days after the denial of a rehearing of a rehearing, which is an untimely and unauthorized appeal.
The appellate court lacks subject matter jurisdiction to entertain the appeal because Escobar's notice of appeal was untimely. The trial court lost jurisdiction to reconsider its order once it denied the initial motion for rehearing, and a notice of appeal filed more than 30 days after the denial of a subsequent rehearing of that denial is not authorized and is therefore untimely.
[1] A trial court loses jurisdiction, except for the entry of post-decretal orders to effectuate a final judgment, upon denying a party's request for rehearing.
[2] A notice of appeal filed more than thirty days after the denial of a request for a rehearing of a ruling on rehearing is untimely and deprives the appellate court of subj…
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Join FLexlaw to unlock all legal intelligence“The trial judge lost jurisdiction,(except for the entry of post decretal orders to effectuate the final judgment), when, having denied the relief sought, she then denied the mortgagor's request for rehearing.”
Establishes that trial court loses jurisdiction once it denies a motion for rehearing, making subsequent motions for rehearing unauthorized
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Join FLexlaw to unlock all legal intelligenceEscobar was a mortgagor in a foreclosure action brought by Chase Manhattan Mortgage Corporation and South Florida Property Investors Corporation. The …
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PER CURIAM.
Mortgagor Teresa Escobar De Ardila appeals an order denying her Motion for Rehearing directed at the trial court’s rulings on her Motion for Objection to Sale at Public Auction and Motion to Vacate. Appellees maintain that both motions had previously been considered by the trial court and ruled on, denying the relief sought; as such, the instant claim amounts to no more than an untimely appeal of an order denying rehearing of a rehearing, and mandates dismissal.1 Appellant argues that she did not receive proper notice of the initial hearing on her Objection to Sale, thus the trial court’s initial ruling on the matter should be ignored. She claims that the bank never properly notified her of the foreclosure action2, and that she was lulled into inaction by the misrepresentations of mortgagee’s agents.3 Without speculating on the mental machinations of the trial judge, we cannot escape the conclusion that what occurred was a rehearing of a rehearing, and ultimately an untimely appeal. The trial judge lost jurisdiction,(except for the entry of post decretal orders to effectuate the final judgment), when, having denied the relief sought, she then denied the mortgagor’s request for rehearing. The mortgagor’s notice of appeal, coming more than 30 days later, was thus, untimely. The mortgagor failed to appeal either the initial order denying her Objection to Sale, dated July 18, 2001, or the first denial of her Motion for Rehearing, dated September 5, 2001. Rather, she filed a Notice of Appeal within thirty days of the denial of a request for a rehearing of a ruling on rehearing, which, of course, is not authorized. This leaves us without subject matter jurisdiction to entertain the instant appeal. See Peltz v. District Court of Appeal, Third Dist., 605 So. 2d 865, 866 (Fla.1992)(Untimely filing of notice of appeal precludes appellate court from exercising jurisdiction); State ex rel. Cantera v. District Court of Appeal, Third Dist., 555 So. 2d 360 (Fla.1990); see also Tedder v. Visually Impaired Persons of Southwest Florida, Inc., 819 So. 2d 274 (Fla. 2nd DCA 2002)(Appeal from amended order for new trial was untimely, where notice of appeal was filed more than 30 days after original deficient order for new trial was granted.)
Accordingly the instant appeal is dismissed.
. Appellee argues in the alternative that even if the merits of appellee’s position are considered, the order under review should be affirmed. See Sulkowski v. Sulkowski, 561 So. 2d 416 (Fla. 2d DCA 1990)(The decision to set aside a judicial sale rests in the trial court's discretion, and the appellate court should not typically interfere with that decision.)
. Insufficiency of the service of process was waived by De Ardila, by her actions in filling her subsequent pleadings. See Department of Revenue ex rel. King v. Blocker, 806 So. 2d 607 (Fla. 4th DCA 2002); MacDougall v. Kutina, 798 So. 2d 30 (Fla. 4th DCA 2001) (holding that former husband waived any defects in service of process by appearing at the first contempt proceeding).
.Mortgagor maintained that a paralegal in the firm representing the foreclosing lender had led the mortgagor into a false sense of security as to the feasibility of mortgagor’s payment of her debt and redemption of her property. The trial judge may have given some credence to the claim, because following the hearing, she filed a letter to the counsel for the lender, stating in part:
please take steps that no other pro se litigant is placed in a situation where he or she may be relying on your firm instead of being directed to comply with legal procedures.
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Citator
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Pennywell v. Dep't OF Revenue, 62 So. 3d 19 (Fla. 1st DCA 2011)….App. P. 9.020(h)(1). The second motion for rehearing was unauthorized and did not further delay rendition of the final judgment. Id.; see also Johnson v. Johnson, 902 So. 2d 241, 244 (Fla. 1st DCA 2005); De Ardila v. Chase Manhattan Mortgage Corp., 826 So. 2d 419, 421 (Fla. 3d DCA 2002). The 30th day after rendition of the final judgment was Saturday, October 30, 2010. Thus, the deadline for filing the notice of appeal was Monday, November 1, 2010. See Fla. R.App. P. 9.420(f). Appellant’s notice of appeal w…
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Cicoria v. Gazi, 901 So. 2d 282 (Fla. 5th DCA 2005)…me of the sale. . See JRBL Development, Inc. v. Maiello, 872 So. 2d 362 (Fla. 2d DCA 2004). . See O’Neal v. McElhiney, 172 So. 2d 492 (Fla. 1st DCA 1965); 8 Fla. Jur.2d, Judicial Sales § 26 (2005). . See De Ardila v. Chase Manhattan Mortgage Co., 826 So. 2d 419 (Fla. 3d DCA 2002). . 8 Fla. Jur. 22, Judicial Sales § 26 (2005). . See Ingorvaia v. Horton, 816 So. 2d 1256 (Fla. 2d DCA 2002); Kerrigan v. Mosher, 679 So. 2d 874 (Fla. 1st DCA 1996); Bennett v. Ward, 667 So. 2d 378 (Fla. 1st DCA 1995); Bit-O-Swe…
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Alina Marcos v. Haecker, 915 So. 2d 703 (Fla. 3d DCA 2005)…to quash. Indeed, applying this rule, Haecker’s alternative forum non conveniens motion may be untimely. However, unlike many situations where the defending party is not under such constraints, see e.g., De Ardila v. Chase Manhattan Mortgage Corp., 826 So. 2d 419 (Fla. 3d DCA 2002)(insuffieiency of service of process waived by mortgagor by her conduct in filing subsequent pleadings); MacDougall v. Rutina, 798 So. 2d 30 (Fla. 4th DCA 2001)(holding that former husband waived any defects in service of process b…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Arvin Peltz v. Dist. Court OF Appeal, 605 So. 2d 865 (Fla. 1992)
- State of Fla. ex rel. Eduardo Cantera v. Dist. Court OF Appeal, 555 So. 2d 360 (Fla. 1990)
- Jerzy Sulkowski and Walter Sulkowski v. Alina Sulkowski, 561 So. 2d 416 (Fla. 2d DCA 1990)
- MacDOUGALL v. Kutina, 798 So. 2d 30 (Fla. 4th DCA 2001)
- Reggie A. Reese v. State, 806 So. 2d 607 (Fla. 4th DCA 2002)
- Dep't OF Revenue v. Ervin Blocker, 806 So. 2d 607 (Fla. 4th DCA 2002)
- Norma E. Tedder, Ph.D. v. Visually Impaired Persons of Sw. Fla., Inc., 819 So. 2d 274 (Fla. 2d DCA 2002)