HomeForeclosure Defense - Set Aside Foreclosure Judgment

How to Set Aside a Florida Judgment - Vacating or Removing a Judgment in Florida

When a Florida Judgment Can Be Changed after Final Judgment in a Foreclosure Case

 

There are Situations Where Final Judgments in Foreclosures Are Removed and Ownership Reclaimed

It is rare for a Florida homeowner to be able to set aside (erase, remove, get rid of) a Foreclosure Judgment in Florida that is a final judgment. Florida law favors finality, and once the judgment has been entered by the judge and it is final (not appealed and past the time for the judge to revise or alter it), courts like to leave things as is.

However, there are situations in foreclosure cases in Florida where a final foreclosure judgment has been vacated (removed, set aside). For example, in Heck v. Bank Liberty, 86 So.3d 1281 (Fla. 1 DCA 2012) a soon to be ex-wife was served at another address with the borrower’s Complaint and Summons and the Florida appellate court nixed the foreclosure judgment. Additionally, under Florida Rule 1.540, a Florida appellate court vacated a trial court’s foreclosure judgment because “excusable neglect” coupled with the Broward County home owner’s showing of a “meritorious defense” in Acosta v. Deutsche Bank National Trust Company, 88 So.3d 415 (Fla. 4 DCA 2012).

Florida Rule of Civil Procedure 1.540 Provides for Vacating Final Judgments

Florida law recognizes that there will be situations where final judgments have been entered that would be wrong and unjust to leave as final judgments, and recognizes that things like mistake, fraud, new evidence can all be reasons that final judgments need to change.

Rule 1.540 of the Florida Rules of Civil Procedure provides the basis for moving the court to set aside, or vacate, that final judgment:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Constitutional Ramifications of No Proper Service in Foreclosure Case

The Fifth Amendment to the federal constitution mandates that no one can be deprived of property without due process of law, and if the Florida borrower can demonstrate that he or she has suffered a violation of that due process right, then the final judgment will be vacated (set aside, removed) on constitutional grounds.

In Florida, due process of law in a foreclosure lawsuit means that the borrower (home owner) must be personally served with the Complaint and Summons by a process server or the county sheriff.   If the sheriff or process server makes a mistake, then that can mean the entire foreclosure lawsuit is voided by the error because constitutional due process did not happen. The Bank fails to meet its burden of proof, as well, given the failure to prove proper service on the defendant.

These are not cases that happen very often. Vacating a Final Foreclosure Judgment means that the home owner / borrower never got served at all (not in person, not by mail) and that they never did a single thing to defend or halt or stop the foreclosure lawsuit.

Therefore, in Florida, there is a possibility that you may be able to remove, to vacate, to set aside, to erase a final foreclosure judgment against you and reclaim ownership of your home if:

  • You were never served; and/or
  • You meet one on the limited reasons set forth under Rule 1.540 of the Florida Rules of Civil Procedure.

 

 

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Florida foreclosure defense lawyer Larry Tolchinsky is an experienced Florida real estate lawyer with years of experience dealing with the Florida Foreclosure Fraud problem with all its nuances and new developments. Please feel free to contact South Florida foreclosure defense lawyer Larry Tolchinsky today for a free consultation.

 

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