Powers v. ITT Financial Services Corp., 94-2846
| Decision Date | 17 November 1995 |
| Docket Number | No. 94-2846,94-2846 |
| Citation | 662 So.2d 1343 |
| Parties | 20 Fla. L. Weekly D2542 Marsea J. POWERS, a/k/a Marsea Powers, Appellant, v. ITT FINANCIAL SERVICES CORPORATION, et al., Appellee. |
| Court | Florida District Court of Appeals |
Stanley C. Felton, of Withlacoochee Area Legal Services, Inc., Ocala, for Appellant.
Maria L. Pfohl, of Shapiro & Fishman, Tampa, for Appellee.
Appellant, Marsea J. Powers (Powers), timely appeals from a non-final order vacating a summary judgment of foreclosure.
Marsea J. Powers (and her former husband) executed a mortgage deed and promissory note to Family First Mortgage Corporation for $50,700 and another mortgage in favor of ITT Financial Services Corporation (ITT) in the amount of $22,560. The First Family Mortgage was assigned to First Nationwide Bank (Nationwide).
When the Powers defaulted on their obligation, ITT filed a foreclosure action. The Powers and Nationwide were listed as defendants. Service of process was made on Nationwide by serving Suzanne Podegraz, First Vice President of the human resources department of Nationwide in Sacramento, California. In her affidavit, Podegraz explained that she accepted service because she recognized the name "Gary Powers"; she knew that a person by that name had been employed at Nationwide and she knew he was involved in a divorce proceeding. Podegraz believed that the documents she received were related to Powers' pension plan or 401k plan. She later found out that the Powers she knew was not the same person involved in the current lawsuit and she immediately forwarded the documents to the correct division of the company.
ITT filed a motion for summary judgment and a final judgment of foreclosure was entered. Following a judicial sale of the property, a certificate of sale was executed by the clerk of court.
After learning of its mistake, Nationwide filed a motion to vacate the summary judgment of foreclosure, alleging that due to its excusable neglect, ITT's summons and complaint had not been forwarded to the appropriate division of the company. Included in the memorandum filed with its motion was the argument that pursuant to rule 1.540 Nationwide had "satisfactorily shown both excusable neglect and the existence of a meritorious defense."
A hearing on the motion for relief under Rule 1.540 was conducted by Judge Angel, successor to Judge Musleh. At the hearing, Powers took the position that Nationwide was a second mortgagee and that its mortgage had been extinguished when the certificate of title in favor of ITT was entered. Nationwide argued that if the certificate of title was set aside because its previous failure to respond had been due to excusable neglect, then the vacated certificate of title would have no effect on its position. After hearing argument, the court ruled as follows:
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