FOCHE MORTGAGE, LLC, APPELLANT,
v.
CITIMORTGAGE, INC., APPELLEE

Fla. 3d DCA | 2015-02-11
No. 3D14-521
Before EMAS, FERNANDEZ and LOGUE, JJ.
163 So. 3d 525 Florida District Court of Appeal, Third District (2015) Positive Treatment
Cited by 6 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

Foche Mortgage appeals a trial court's order vacating a final summary judgment in its favor. The appellate court reverses because CitiMortgage's motion to vacate was filed under the wrong rule and was untimely under the applicable rule, divesting the trial court of jurisdiction to grant it.


Holding

The trial court lacked jurisdiction to grant CitiMortgage's motion because it was untimely under Rule 1.530, the only rule cited in the motion. Although Rule 1.540 would have allowed a longer filing period, CitiMortgage did not invoke that rule, and the appellate court will not construe an untimely Rule 1.530 motion as a Rule 1.540 motion.


Headnotes

[1] A trial court lacks jurisdiction to grant or consider a motion for reconsideration that is not timely filed within the period prescribed by rule 1.530.

[2] A motion for reconsideration filed more than ten days after the entry of a final judgment is untimely under rule 1.530.

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Key Quotes

“A motion under the then applicable version of rule 1.530 had to have been served within ten days of the trial court's final judgment of November 25, 2013. CitiMortgage's motion was not served within that time-frame, as it was served on December 6, 2013. Thus, the trial court was without jurisdiction to grant or even consider an untimely motion under rule 1.530.”

Establishes the jurisdictional defect preventing the trial court from vacating the judgment

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Facts & Procedural History

CitiMortgage filed a mortgage foreclosure action against Foche Mortgage. On November 25, 2013, the trial court granted final summary judgment in favor…

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Opinion of the Court
FERNANDEZ, J.

FERNANDEZ, J.

Foche Mortgage, LLC appeals an order granting CitiMortgage, Inc.’s motion to vacate a final summary judgment, as well as an order denying Foche Mortgage’s motion for reconsideration. We reverse the trial court’s order granting CitiMortgage’s' motion to vacate the final judgment because CitiMortgage’s motion for reconsideration was untimely.

CitiMortgage filed a mortgage foreclosure action against Foche Mortgage. On November 25, 2013, the trial court granted final summary judgment in favor of Foche Mortgage based on the five-year statute of limitations. On December 6, 2018, Citi-Mortgage moved for rehearing, or alternatively, to vacate the summary judgment order ’ pursuant to Florida Rule of Civil Procedure 1.530. The trial court granted CitiMortgage’s motion to vacate the final summary judgment on February 10, 2014, concluding that the statute of limitations was miscalculated. Foche Mortgage moved for reconsideration, or alternatively, to stay. The trial court denied reconsideration and granted a stay.

The standard of review “on an order ruling on a motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of the trial court’s discretion.” Leach v. Salehpour, 19 So.3d 342, 344 (Fla. 2d DCA 2009); see also Gaffney v. Gaffney, 965 So.2d 1217, 1221 (Fla. 4th DCA 2007) (opining that “[a] trial court’s decision on a motion for rehearing is reviewed for an abuse of discretion”).

We have jurisdiction to review the trial court’s February 10, 2014 order vacating its final judgment in favor of Foche Mortgage because the order is appealable under Florida Rule of Appellate Procedure 9.130(a)(4)-(5). CitiMortgage’s December 6, 2013 motion for reconsideration only references Florida Rule of Civil Procedure 1.530 and is entirely premised upon that rule. No mention of rule 1.540 is made in the motion, nor is reference made to any of the operative provisions of rule 1.540.

A motion under the then applicable version of rule 1.530 had to have been served within ten days of the trial court’s final judgment of November 25, 2013.1 Ci-tiMortgage’s motion was not served within that time-frame, as it was served on December 6, 2013. Thus, the trial court was without jurisdiction to grant or even consider an untimely motion under rule 1.530. Having served an untimely motion for reconsideration, CitiMortgage’s only avenue of recourse to challenge the trial court’s November 25, 2013 order was to file an appeal of the final judgment. It did not.

Because CitiMortgage’s rule 1.530 motion was untimely, it seeks to have this Court construe its motion as a rule 1.540 motion, which may be filed within a year of the judgment. However, CitiMortgage’s motion makes no mention of rule 1.540.

As such, the trial judge was without jurisdiction to grant CitiMortgage’s motion because CitiMortgage’s rule 1.530 motion was untimely. Accordingly, we reverse the trial court’s order of February 10,, *5272014, and remand the case with instructions to reinstate the final judgment of November 25, 2013, in favor of Foche Mortgage. '

Reversed and remanded with instructions.


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Citator

Cited By

  • Coral Gables Imports, Inc. v. Suarez, 219 So. 3d 101 (Fla. 3d DCA 2017)
    …16; The standard of review for an order that rules on a motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of the trial court’s diseretion. Foche Mort., LLC v. CitiMortgage, Inc., 163 So. 3d 525, 526 (Fla. 3d DCA 2015). Florida Rule of Civil Procedure 1.540(b) provides grounds for relief from a final judgment, decree, order, or proceeding when the judgment or degree is void. Rule 1.540(b) specifically provides: (b) Mistakes; Inadvertence;…
  • Eduartez v. Fed. Nat'l Mortg. Ass'n, 251 So. 3d 227 (Fla. 3d DCA 2018)
    …r on appeal denying Eduartez's rule 1.540 motion.5 Eduartez timely appealed this order. II. Standard of Review A trial court's denial of a rule 1.540 motion is generally reviewed for an abuse of discretion. Foche Mortg., LLC v. CitiMortgage, Inc., 163 So. 3d 525, 526 (Fla. 3d DCA 2015). When, however, our review turns either on a purely legal, statutory construction or voidness issue, we review the rule 1.540 order de novo . Metcalfe v. Lee, 952 So. 2d 624, 627-28 (Fla. 4th DCA 2007) (statutory construction…
  • Saad Albassam v. Afnaan Faize Yousef Klob, 238 So. 3d 311 (Fla. 4th DCA 2018)

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