JUAN I. PACHECO, APPELLANT,
v.
INDYMAC FEDERAL BANK, F.S.B., APPELLEE
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Appellant Pacheco sought relief from a foreclosure judgment, arguing the bank lacked standing to file the foreclosure complaint because it did not hold the mortgage and note at the time suit was filed. The court affirmed the trial court's denial of relief, holding that the standing defense was waived by not raising it in the original answer or in opposition to summary judgment.
A defendant cannot raise the affirmative defense of lack of standing for the first time months after final judgment in a motion for relief under Rule 1.540(b) when the defense was not raised in the original answer or in opposition to summary judgment. Additionally, the unsworn allegations of fraud were insufficient to entitle the movant to an evidentiary hearing, as they failed to specify fraud with precision and were not supported by the record.
[1] Failure to raise the affirmative defense of lack of standing in a mortgage foreclosure case precludes relief from judgment pursuant to Florida Rule of Civil Procedure 1.5…
[2] A party cannot raise the issue of standing for the first time months after a final judgment in a motion for relief brought under Florida Rule of Civil Procedure 1.540(b).
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Join FLexlaw to unlock all legal intelligence“the failure to raise the affirmative defense of lack of standing of the plaintiff in a mortgage foreclosure ease precludes relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b)”
Establishes the primary holding that standing defense is waived if not raised timely in the litigation
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Join FLexlaw to unlock all legal intelligenceIndyMac Federal Bank filed a foreclosure complaint alleging it was the owner and holder of the note and mortgage. The bank filed an assignment and the…
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We affirm the trial court’s denial of appellant’s motion for relief from final judgment on the authority of Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893 (Fla. 4th DCA 2012), which holds that the failure to raise the affirmative defense of lack of standing of the plaintiff in a mortgage foreclosure ease precludes relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b).
In an unsworn motion for relief from judgment, appellant claims that the bank lacked standing when it filed the complaint to foreclose the mortgage, because the mortgage and note were not held by the bank at the time suit was filed. The complaint, however, alleged that the bank was the owner and holder of the note and mortgage. A copy of the mortgage, an assignment which occurred on the date of the complaint was filed, and the original note with an allonge were filed with the court at the time of summary judgment.
While this case differs from Phadael in that the appellant filed a pro se answer to the complaint to foreclose the mortgage, he did not raise the issue of standing as an affirmative defense and did not contest the motion for summary judgment which ended in the judgment of foreclosure. He did not raise the issue in a motion for rehearing from the final judgment. Consistent with Phadael, we hold that appellant cannot raise the issue of standing for the first time months after the final judgment in a motion for relief brought under Rule 1.540(b).
Secondarily, appellant contends that he was at least entitled to an eviden-tiary hearing on the issue of fraud. A movant may be entitled to an evidentiary hearing when a Rule 1.540(b)(3) motion sufficiently specifies the fraud and explains why the fraud would allow the court to set aside the judgment. Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). Here, the fraud alleged is that the bank did not have standing at the time of filing the complaint. While appellant appears to rely on the record documents, they do not support a claim of fraud. The unsworn allegations of the motion are insufficient to satisfy the appellant’s burden to show fraud with precision. See Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th *278DCA 2010). The trial court did not err in summarily denying appellant’s motion.
Affirmed.
WARNER, DAMOORGIAN and CONNER, JJ., concur.
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Citator
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Gafoor Jaffer and Nina Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199 (Fla. 4th DCA 2015)…on for summary judgment and argued the defense at the hearing on the motion. There is a significant body of law from this court that standing must be raised as an affirmative defense or it is waived. See, e.g., Pacheco v. Indymac Fed. Bank, F.S.B., 92 So. 3d 276 (Fla. 4th DCA 2012); Miller v. Kondaur Capital Corp., 91 So. 3d 218 (Fla. 4th DCA 2012); Phadael v. Deutsche Bank Trust Co. Amen, 83 So. 3d 893 (Fla. 4th DCA 2012). If standing is defined in its broadest sense, “a sufficient stake in an otherwise ju…
Authorities Cited
- Flemenbaum v. Lily Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994)
- Phadael v. Deutsche Bank Tr. Co. Americas, 83 So. 3d 893 (Fla. 4th DCA 2012)
- Veldrin D. Freemon v. Deutsche Bank Tr. Co. Americas, 46 So. 3d 1202 (Fla. 4th DCA 2010)