Novastar Mortgage Inc. v. Bucknor
| Decision Date | 22 July 2011 |
| Docket Number | No. 2D10–4545.,2D10–4545. |
| Citation | 69 So.3d 959 |
| Parties | NOVASTAR MORTGAGE, INC., Appellant,v.Shedrick Arbonnetta BUCKNOR, a/k/a Shedrick A. Bucknor, a/k/a Shedrick Avonnetta Buchnor; Unknown Spouse of Shedrick Arbonnetta Bucknor, a/k/a Shedrick A. Bucknor, a/k/a Shedrick Avonnetta Buchnor; Unknown Person(s) In Possession of Subject Property; Suncoast Schools Federal Credit Union; South Pointe Homeowners Association, Inc., Appellees. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
James H. Wyman of Hinshaw & Culbertson, LLP, Fort Lauderdale, for Appellant.Pattie W. Halloran of Gibbons, Neuman, Bello, Segall, Allen & Halloran, P.A., Tampa, for Appellee Shedrick A. Bucknor.No appearance for remaining Appellees.DAVIS, Judge.
Novastar Mortgage, Inc., challenges the trial court's order granting Shedrick Arbonnetta Bucknor's motion to set aside and vacate the final judgment of foreclosure and to void the foreclosure sale, the certificate of sale, and the certificate of title. Because the trial court granted Bucknor's motion without first conducting an evidentiary hearing, we reverse.
Novastar moved to foreclose the note and mortgage it held for Bucknor's property, which had been damaged by a sinkhole. As the foreclosure was proceeding, Bucknor was also in negotiations with her insurance company to recover sinkhole-related damages. After Novastar moved for summary judgment of foreclosure but before the final hearing on the matter, an agreement concerning the settlement of the insurance claim was reached. In her motion to set aside, Bucknor alleged that she contacted a representative for Novastar and discussed using the insurance check to bring the property out of foreclosure. According to Bucknor, she was told that the scheduled hearing on the motion for summary judgment would be canceled and that she did not need to attend. The hearing, however, was not canceled, and a summary judgment of foreclosure was entered in Bucknor's absence.
Bucknor then moved to set aside the final judgment of foreclosure, alleging pursuant to Florida Rule of Civil Procedure 1.540(b)(3) that her reliance on misrepresentations by Novastar led her to believe that the insurance check would bring the property out of foreclosure and that the hearing would be canceled. The trial court held a hearing on Bucknor's rule 1.540(b) motion but took no sworn testimony or evidence at the hearing. Relying solely on the written submissions of the parties and the arguments of counsel, the trial court granted the motion and set aside the final judgment of foreclosure based on Novastar's bad faith.
Although Bucknor's allegations against Novastar may support the granting of a rule 1.540(b)(3) motion, the trial court erred in basing such a determination on the conflicting...
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