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How to Set Aside a Florida Foreclosure Judgment
There are at least 2 grounds for setting aside a foreclosure judgment.
It is rare for a Florida homeowner to be able to set aside (open or vacate) a Foreclosure Judgment in Florida that is a final judgment.
However, there are situations in foreclosure cases in Florida where a final foreclosure judgment has been vacated. For example, under Florida Rule 1.540, a Florida appellate court vacated a trial court’s foreclosure judgment because “excusable neglect” existed coupled with the Broward County homeowner’s showing of a “meritorious defense” – See Acosta v. Deutsche Bank National Trust Company, 88 So.3d 415 (Fla. 4 DCA 2012). Additionally, in Heck v. Bank Liberty, 86 So.3d 1281 (Fla. 1 DCA 2012) a husband/borrower’s soon-to-be ex-wife was served on his behalf at another address with the foreclosure Complaint and Summons and the Florida appellate court set aside the foreclosure judgment.
See: Motion to Set Aside Foreclosure Judgment
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 a mistake, fraud, the 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, a final judgment.
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 (homeowner) 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 the 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 homeowner/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 remove a final foreclosure judgment against you, and reclaim ownership of your home if:
- You were never served; and/or
- You meet one of 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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