CHANDRAKANT PATEL AND NAYAN PATEL, APPELLANTS,
v.
THE BANK OF NEW YORK MELLON, ETC., APPELLEE
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The appellate court affirmed the trial court's denial of the Patels' motion to vacate a foreclosure judgment. The court found that the Patels' arguments regarding the summary judgment were untimely and that their appeal of the denial of the motion to vacate was without merit.
No, the trial court did not err in denying the motion to vacate. The arguments concerning the summary judgment were made too late and could not be raised in a collateral attack. The appeal of the denial of the motion to vacate was also without merit.
[1] A party's failure to properly appeal a summary judgment precludes a collateral attack on that judgment.
[2] An ore tenus motion to vacate a judgment is subject to the trial court's discretion, and its denial will be affirmed absent error.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Counsel’s various arguments directed to the summary judgment are made too late. Since there was no proper appeal of the summary judgment, it may not be collaterally attacked.”
Establishes that the arguments regarding the summary judgment were untimely and could not be raised in a collateral attack.
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Join FLexlaw to unlock all legal intelligenceThe Bank of New York Mellon filed a mortgage foreclosure complaint against the Patels. After multiple delays and extensions, the trial court entered a…
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Appellee, Bank of New York Mellon, filed a complaint to foreclose on its mortgage executed by Appellant’s Chandrakant Patel and Nayan Patel, on June 12, 2008. Appellants responded on July 7, 2008, asking for additional time because they were attempting to lower their payments. They made no denials and raised no defenses. Finally, on May 7, 2010, Appellee moved for summary judgment. The hearing was ultimately scheduled for December 14, *6872010. Appellants in “this unopposed action for foreclosure,” asked for a minimum extension for the hearing to investigate whether adjustments and modifications to their mortgage could be made. At that time, Appellee moved for the court to administratively close the file, and the motion was granted.
A year later, on December 13, 2011, Appellee moved to reopen the file and reschedule the summary judgment hearing. This motion was granted and a new summary judgment hearing was set for November 29, 2012. Appellants moved for an extension until a date after February 8, 2013. This motion was denied. On November 2, 2012, a final judgment of foreclosure was entered. On December 14, 2012, Appellants, through current counsel filed a notice of appeal but it was dismissed on January 18, 2013, based on failure to pay the filing fee. Even so, a month later, Appellants filed an emergency motion to stay all proceedings including the scheduled sale, until Appellants’ pending appeal to this Court. The court then held a case management conference. At this hearing, the court denied Appellant’s ore tenus motion to vacate judgment. It is the denial of this ore tenus motion to vacate judgment that is now being appealed. Counsel’s various arguments directed to the summary judgment are made too late. Since there was no proper appeal of the summary judgment, it may not be collaterally attacked. Concerning her appeal of the ore tenus motion to vacate judgment, we find no error committed by the trial judge.
We therefore AFFIRM.
ORFINGER, LAWSON, JJ., and HARRIS, C. M., Senior Judge, concur.