Bayview Loan Servicing, LLC v. Dzidzovic
Decision Date | 22 June 2018 |
Docket Number | Case No. 2D17–3608 |
Citation | 249 So.3d 1265 |
Parties | BAYVIEW LOAN SERVICING, LLC, Appellant, v. Huso DZIDZOVIC; East Lake Woodlands Master Association, Inc., a dissolved corporation; Greenhaven Unit One Association, Inc.; Edina Dzidzovic; JPMorgan Chase Bank, National Association, successor in interest by purchase from the Federal Deposit Insurance Corporation, as received for Washington Mutual Bank f/k/a Washington Mutual Bank, FA, Appellees. |
Court | Florida District Court of Appeals |
Jonathan L. Black of Phelan Hallinan Diamond & Jones, PLLC, Fort Lauderdale, for Appellant.
No appearance for Appellees.
Bayview Loan Servicing, LLC, appeals the trial court's order granting Huso Dzidzovic's motion to vacate the final judgment of foreclosure and dismissing its foreclosure action.1 We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The trial court entered the order ex parte without a hearing. Further, no competent substantial evidence supports the order. Consequently, we reverse and remand.
The trial court entered a final judgment of foreclosure against Mr. Dzidzovic. He appealed. By stipulation, the parties voluntarily dismissed the appeal. See Dzidzovic v. Bayview Loan Servicing, LLC, 233 So.3d 1091 (Fla. 2d DCA 2017). Thereafter, the trial court scheduled a foreclosure sale.
Several weeks before the sale and pursuant to Florida Rule of Civil Procedure 1.540(b), Mr. Dzidzovic filed a "motion to vacate final judgment and dismiss action and motion to enforce settlement or in the alternative to reschedule sale date." He alleged that he had entered into a loan modification agreement with Bayview, following the final judgment, that he was in compliance with the terms of that agreement, and that Bayview was imprudently proceeding with the foreclosure sale.
On the same day that the motion was filed, the trial court, without hearing, entered an order granting the motion, vacated the final judgment, and dismissed the foreclosure action. Bayview filed an unsuccessful motion for rehearing.
We "review an order granting a [ rule 1.540(b) ] motion ... for abuse of discretion." State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So.3d 528, 531 (Fla. 2d DCA 2017). Thus, we afford the trial court's ruling a degree of deference, such that it will be affirmed unless the Trease v. State, 768 So.2d 1050, 1053 n.2 (Fla. 2000) ( )(quoting Huff v. State, 569 So.2d 1247, 1249 (Fla. 1990) ). The trial court's order is problematic for three reasons.
First, by entering the order the same day the motion was filed, and without giving Bayview an opportunity to be heard, the trial court acted ex parte. This was error. "Due process mandates that in any judicial proceeding, the litigants must be afforded the basic elements of notice and opportunity to be heard." E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226, 228 (Fla. 2d DCA 1995) ; see also Arcila v. BAC Home Loans Servicing, L.P., 145 So.3d 897, 898–99 (Fla. 2d DCA 2014) ( ); Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So.3d 1271, 1274–75 (Fla. 2d DCA 2009) ( ).
Second, the trial court failed to conduct an evidentiary hearing on the motion. "Where a motion under rule 1.540(b) sets forth ‘a colorable entitlement to relief,’ the trial court should conduct an evidentiary hearing to determine whether such relief should be granted." Cottrell v. Taylor, Bean & Whitaker Mortg. Corp., 198 So.3d 688, 691 (Fla. 2d DCA 2016) (quoting Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004) ). Mr. Dzidzovic's allegation that the parties entered a loan modification agreement was a colorable claim for rule 1.540(b) relief. Cf. Nowlin v. Nationstar Mortg., LLC, 193 So.3d 1043, 1045 (Fla. 2d DCA 2016) ().
Further, "[a] trial court errs in granting a motion for relief from judgment without affording the opposing party an opportunity to be heard at an evidentiary hearing." Arcila, 145 So.3d at 898 ; see also Novastar Mortg., Inc. v. Bucknor, 69 So.3d 959, 960 (Fla. 2d DCA 2011) ( ); Avi–Isaac v. Wells Fargo Bank, N.A., 59 So.3d 174, 177 (Fla. 2d DCA 2011) ( ); McCrea v. Deutsche Bank Nat'l Trust Co., 993 So.2d 1057, 1058–59 (Fla. 2d DCA 2008) ( ); Monsour v. Balk, 705 So.2d 968, 969 (Fla. 2d DCA 1998) ( ); Schuman v. Int'l Consumer Corp., 50 So.3d 75, 77 (Fla. 4th DCA 2010) ().
Third, the order is not supported by competent substantial evidence. Cheverie v. Geisser, 783 So.2d 1115, 1119 (Fla. 4th DCA 2001) ( ). Because there was no evidence demonstrating the existence of a loan modification agreement, the trial court abused its discretion in granting Mr. Dzidzovic's motion. See Sourcetrack, LLC. v. Ariba, Inc., 34 So.3d 766, 768 (Fla. 2d DCA 2010) (); see also Rude v. Golden Crown Land Dev. Corp., 521 So.2d 351, 353 (Fla. 2d DCA 1988) ().
Bayview argues that the parties never entered a loan modification agreement. Be that as it may, we are without authority to make such a finding. See Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) (); Douglass v. Buford, 9 So.3d 636, 637 (Fla. 1st DCA 2009) (). The trial court, as fact-finder, must make that determination.
In light of the foregoing, we must reverse the order on appeal and remand for the trial court...
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