NOVASTAR MORTGAGE, INC., APPELLANT,
v.
SHEDRICK ARBONNETTA BUCKNOR, A/K/A SHEDRICK A. BUCKNOR, A/K/A SHEDRICK AVONNETTA BUCHNOR; UNKNOWN SPOUSE OF SHEDRICK ARBONNETTA BUCKNOR, A/K/A SHEDRICK A. BUCKNOR, A/K/A SHEDRICK AVONNETTA BUCHNOR; UNKNOWN PERSON(S) IN POSSESSION OF SUBJECT PROPERTY; SUNCOAST SCHOOLS FEDERAL CREDIT UNION; SOUTH POINTE HOMEOWNERS ASSOCIATION, INC., APPELLEES

Fla. 2d DCA | 2011-07-22
No. 2D10-4545
NORTHCUTT and VILLANTI, JJ„ Concur.
69 So. 3d 959 Florida District Court of Appeal, Second District (2011) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Novastar Mortgage appealed the trial court's order setting aside a foreclosure judgment and voiding the foreclosure sale. The court reversed, holding that the trial court erred in granting the motion to set aside without conducting an evidentiary hearing to determine the credibility of conflicting allegations regarding alleged misrepresentations by Novastar.


Holding

The trial court erred in granting Bucknor's rule 1.540(b)(3) motion without conducting an evidentiary hearing. When allegations of fraud or misrepresentation raise a colorable entitlement to relief under rule 1.540(b)(3), a formal evidentiary hearing is required to assess the credibility of the parties' conflicting accounts, and reliance on written submissions and counsel argument alone is insufficient.


Headnotes

[1] A motion for relief from judgment based on fraud or misrepresentation requires an evidentiary hearing when the moving party presents a prima facie case.

[2] A trial court must hold an evidentiary hearing on a motion for post-judgment relief if the moving party attaches evidence supporting their claim of fraud or misrepresenta…

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Key Quotes

“Neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.”

Establishes the legal standard that written submissions alone cannot substitute for a proper evidentiary hearing on credibility determinations.

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Facts & Procedural History

Novastar Mortgage initiated foreclosure proceedings against Shedrick Bucknor's property, which had been damaged by a sinkhole. While Bucknor was negot…

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Opinion of the Court
DAVIS, Judge.

DAVIS, Judge.

Novastar Mortgage, Inc., challenges the trial court’s order granting Shedrick Ar-bonnetta Bucknor’s motion to set aside and vacate the final judgment of foreclosure and to void the foreclosure sale, the certificate of sale, and the certificate of title. Because the trial court granted Bucknor’s motion without first conducting an eviden-tiary hearing, we reverse.

Novastar moved to foreclose the note and mortgage it held for Bucknor’s property, which had been damaged by a sinkhole. As the foreclosure was proceeding, Bucknor was also in negotiations with her insurance company to recover sinkhole-related damages. After Novastar moved for summary judgment of foreclosure but before the final hearing on the matter, an agreement concerning the settlement of the insurance claim was reached. In her motion to set aside, Bucknor alleged that she contacted a representative for Novas-tar and discussed using the insurance check to bring the property out of foreclosure. According to Bucknor, she was told *960that the scheduled hearing on the motion for summary judgment would be canceled and that she did not need to attend. The hearing, however, was not canceled, and a summary judgment of foreclosure was entered in Bucknor’s absence.

Bucknor then moved to set aside the final judgment of foreclosure, alleging pursuant to Florida Rule of Civil Procedure 1.540(b)(3) that her reliance on misrepresentations by Novastar led her to believe that the insurance check would bring the property out of foreclosure and that the hearing would be canceled. The trial court held a hearing on Bucknor’s rule 1.540(b) motion but took no sworn testimony or evidence at the hearing. Relying solely on the written submissions of the parties and the arguments of counsel, the trial court granted the motion and set aside the final judgment of foreclosure based on Novastar’s bad faith.

Although Bucknor’s allegations against Novastar may support the granting of a rule 1.540(b)(3) motion, the trial court erred in basing such a determination on the conflicting affidavits of the parties instead of holding an evidentiary hearing on the motion. See Avi-Isaac v. Wells Fargo Bank, N.A., 59 So.3d 174, 177 (Fla. 2d DCA 2011) (“Of course, ‘[njeither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.’ ” (alteration in original) (quoting Sperdute v. Household Realty Corp., 585 So.2d 1168, 1169 (Fla. 4th DCA 1991))); Rosenthal v. Ford, 443 So.2d 1077, 1078 (Fla. 2d DCA 1984) (“Appellant has ... made allegations of fraud and misrepresentation on the part of appellee as an inducement to her consent to the terms of the final judgment.... The credibility of appellant’s allegations should only be determined by the trial court after an eviden-tiary hearing thereon.”).

We note that although the record currently before this court does not indicate whether Novastar even requested an evi-dentiary hearing, its failure to do so would have no impact on our disposition here. See S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986) (“In circumstances such as th[ese] where the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”).

Accordingly, we reverse the order setting aside the final summary judgment of foreclosure and remand for the trial court to hold an evidentiary hearing prior to making its findings of fact regarding the allegations. We note that nothing in this opinion should be construed as a determination on the merits of the claims raised in Bucknor’s rule 1.540(b) motion.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ„ Concur.


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Citator

Cited By

  • Suntrust Bank v. Dr. Marc Puleo, M.D., 76 So. 3d 1037 (Fla. 4th DCA 2011)
    …on raised a color-able claim that SunTrust misrepresented information. However, SunTrust denied any wrongdoing and challenged Garnish-ors’ representation of the facts. Thus, an evidentiary hearing was necessary. See Novastar Mortg., Inc. v. Bucknor, 69 So. 3d 959, 960 (Fla. 2d DCA 2011) (holding that trial court erred in granting rule 1.540(b)(3) motion to vacate without holding evidentiary hearing where allegations supported granting motion, but opposing party presented conflicting affidavit); see also Avi-…
  • Bayview Loan Servicing, LLC v. Huso Dzidzovic, 249 So. 3d 1265 (Fla. 2d DCA 2018)
  • Casteel v. Maddalena, 109 So. 3d 1252 (Fla. 2d DCA 2013)
    …assess the credibility of the allegations. See Rosenthal, 443 So. 2d at 1078. The failure to hold an evidentiary hearing, in the face of specific allegations of fraudulent conduct, constitutes reversible error. See Novastar Mortg., Inc. v. Bucknor, 69 So. 3d 959, 960 (Fla. 2d DCA 2011); Rosenthal, 443 So. 2d at 1078-79. Of course, here, Maddalena did not allege any fraud on the part of Casteel or his counsel. But even if Maddalena’s allegations could be construed as facially sufficient allegations pursuant…

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