Vives v. Wells Fargo Bank, N.A.
| Decision Date | 23 October 2013 |
| Docket Number | No. 3D11–1453.,3D11–1453. |
| Citation | 128 So.3d 9 |
| Parties | Monica VIVES, Appellant, v. WELLS FARGO BANK, N.A., etc., Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Wasson & Associates, Chartered, and Roy D. Wasson and Annabel C. Majewski, Miami; Wald, Castillo & Wald, and Jennifer P. Wald, Miami, for appellant.
Kelly E. Elkins, P.A., Plantation, and Katherine J. Walke, Fort Lauderdale, for appellee.
Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
The defendant, Monica Vives (“Ms. Vives”), appeals from the denial of her motion to vacate the final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A., etc. (“Wells Fargo”), and motion to cancel the foreclosure sale. We remand with instructions.
This appeal stems from a foreclosure action filed on March 4, 2009, by Wells Fargo against Ms. Vives, in which Wells Fargo sought to re-establish a lost or destroyed promissory note (Count I), and foreclose a mortgage on Ms. Vives' home that Wells Fargo now owns and holds (Count II). The process server's verified return of service was returned on March 21, 2009, indicating that substitute service of process was effected at Ms. Vives' home on March 19, 2001, on an unnamed individual.
Ms. Vives did not file a responsive pleading. SeeFla. R. Civ. P. 1.100(a) ( ); Fla. R. Civ. P. 1.140(a)(1) (). Although Wells Fargo did not file a motion for default, it filed a motion for summary final judgment of foreclosure on May 28, 2009, and the service list indicates the motion was mailed to Ms. Vives.1
On April 9, 2010, more than a year after Wells Fargo initiated the foreclosure action, it filed a copy of a letter Ms. Vives wrote on April 3, 2009, to her mortgage servicing agent's attorney, Kahane & Associates, P.A., which Wells Fargo claimed was Ms. Vives “Pro Se Answer.” The letter provides, in pertinent part, as follows:
I have been in contact with my mortgage lender and will be using a Repayment Plan in order to avoid foreclosure.
....
I appreciate any further information you can provide as any other steps that I need to take, including forwarding this to the courts as I had only a few days left to respond to them....
Again, I am going to work with my lender using the Repayment Plan they offered me in order to stop this foreclosure process.
After Kahane & Associates took it upon itself to file Ms. Vives' “Pro Se Answer,” Wells Fargo filed other items, including the original promissory note and mortgage executed by Ms. Vives, an original assignment of mortgage, and two original allonges.
On December 2, 2010, Judge Jennifer D. Bailey heard Wells Fargo's Motion for Summary Final Judgment of Foreclosure, which Ms. Vives did not attend. On that same day, Judge Bailey entered a Final Judgment of Foreclosure in favor of Wells Fargo, finding that “[s]ervice of process has been duly and regularly obtained over” Ms. Vives, and setting the sale of the property for January 21, 2011. A copy of the final judgment was mailed to Ms. Vives.
Three days before the scheduled foreclosure sale, Ms. Vives filed an emergency motion to cancel the foreclosure sale. This was Ms. Vives' first appearance in the foreclosure action. Senior Judge Gillman entered an order rescheduling the sale to March 3, 2011, due to “service of process questions.”
On March 1, 2011, Ms. Vives filed a Motion to Vacate Final Judgment and Cancel Sale, pursuant to Florida Rule of Civil Procedure 1.540(b), attaching her sworn affidavit. The motion to vacate asserts, in part, that Ms. Vives was never served with the complaint, and, therefore, the trial court did not have personal jurisdiction over her when the final summary judgment in favor of Wells Fargo was entered on December 2, 2010. In support of this assertion, the motion to vacate provides that the process server averred in his verified return of service that the unnamed person who was served is a brown-haired female who is thirty-five to forty-nine years old, 5'4? to 5'8? tall, and weighs between 100 to 129 pounds, and that this description is not of Ms. Vives who is thirty-one years old, 5'6? tall, weighs 175 pounds, and, at the time of service, had blonde hair.
In addition to averring that she was not served with process, Ms. Vives stated that she first learned of the foreclosure action on December 22, 2010, when her uncle saw her home on a foreclosure sales list. Although the record demonstrates that numerous items filed by Wells Fargo were mailed to Ms. Vives, she claimed that she “never received any notices or pleadings regarding this lawsuit” and “had no knowledge that a judgment was entered.”
In her affidavit, Ms. Vives described the circumstances relating to the letter she wrote to Kahane & Associates on April 3, 2009. In April 2009, her mortgage servicing agent, American Home Mortgage Servicing (“AHM”), contacted her and offered her a repayment plan to avoid foreclosure. Ms. Vives accepted the plan, and as requested by AHM, she contacted AHM's attorney, Kahane & Associates. She spoke with an employee at Kahane & Associates who requested that she write a letter indicating that she had accepted the repayment plan. This employee assured her the letter “would stop the law firm from filing foreclosure” against her. During her conversations with AHM and Kahane & Associates, Ms. Vives claims she was not told that Wells Fargo had already filed a foreclosure action against her. As part of the repayment plan, from June to December 2009, Ms. Vives made payments to AHM, totaling $13,760. However, in December 2009, a $2500 payment was returned to Ms. Vives without an explanation.
Senior Judge Silver rescheduled the March 3, 2011, foreclosure sale to May 2, 2011. Thereafter, on March 25, 2011, Ms. Vives filed an Amended Motion to Vacate Final Judgment and Motion to Cancel Sale, which is substantively similar to the previously filed motion to vacate.
The hearing on the amended motion to vacate was scheduled for April 21, 2011, before Judge Donner. When Judge Donner cancelled her calendar for that day, Ms. Vives' counsel re-noticed the hearing for April 28, 2011. Ms. Vives' counsel appeared at the April 28th hearing, but was notified that the motion was not placed on the calendar because the notice of hearing was not provided at least seven business days prior to the hearing, as required by Judge Donner. Ms. Vives' counsel re-noticed the hearing on the amended motion to vacate for May 12, 2011.
On April 29, 2011, Ms. Vives filed an emergency motion to cancel the May 2, 2011, sale, explaining that the amended motion to vacate would not be heard by Judge Donner until May 12, 2011. At the hearing on the emergency motion to cancel the sale, Judge Gillman, the presiding judge of the Foreclosure Master Calendar Court, questioned defense counsel as to when Ms. Vives first requested that the final judgment be vacated. In response, Ms. Vives' counsel handed Judge Gillman the February 28, 2011, motion to vacate, and explained that the delay in filing the motion to vacate was due, in part, to the confusion as to which trial judge would be hearing the motion—the trial judge who entered the final judgment (Judge Bailey) or a trial judge in the division in which the foreclosure case was assigned. Thereafter, Judge Gillman signed a form order denying the emergency motion to cancel the sale and an order prepared by Wells Fargo's counsel denying Ms. Vives motion to vacate the judgment.
On May 2, 2011, the subject property was sold to Wells Fargo; on May 6, 2011, Ms. Vives filed an Objection to Sale; and on May 12, 2011, at the hearing scheduled before Judge Donner, Ms. Vives' counsel learned that Judge Gillman had executed an order denying Ms. Vives' motion to vacate.2 Ms. Vives timely appeals Judge Gillman's orders denying her motion to cancel the sale and motion to vacate.
Ms. Vives contends the trial court erred by denying her motion to vacate the final summary judgment of foreclosure as she was not served with process, and, therefore, the trial court did not have personal jurisdiction over her when the final summary judgment was entered. Wells Fargo, however, contends Ms. Vives waived any objection she may have had as to service by answering the complaint without raising this defense. SeeFla. R.C.P. 1.140(h); Lennar Homes, Inc. v. Gabb Constr. Servs., Inc., 654 So.2d 649, 651 (Fla. 3d DCA 1995) ().
In support of this claim, Wells Fargo relies on Ms. Vives' letter that Wells Fargo filed with the trial court as her “Pro Se Answer.” This Court, however, has rejected a similar filing and argument in Opella v. Bayview Loan Servicing, LLC, 48 So.3d 185, 187 (Fla. 3d DCA 2010), concluding that the letter allegedly written by Mr. Opella, but filed by Bayview Loan Servicing as Mr. Opella's “pro se answer,” did not constitute an answer.
In Opella, Bayview filed a foreclosure suit against Mr. Opella. Bayview moved for summary judgment against Mr. Opella, alleging that service of process properly had been effected on Mr. Opella. Approximately one month later, Bayview, without Mr. Opella's authorization, filed a “Notice of Filing Defendant's Pro Se Answer,” attaching an undated letter that Mr. Opella allegedly wrote to Bayview's attorney in an attempt to settle a dispute as to the subject mortgage. Thereafter, the trial court entered final summary judgment in favor of Bayview, finding that service of process had been duly and regularly obtained over Mr. Opella....
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Chapter 1-3 Service of Process
...service was made without confirming the person accepting substitute service was at least 15 years old); Vives v. Wells Fargo Bank, N.A., 128 So. 3d 9, 15 (Fla. 3d DCA 2012) (return of service was not presumed valid where service was made on an unnamed person at defendant's residence. Servic......
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Chapter 1-3 Service of Process
...service was made without confirming the person accepting substitute service was at least 15 years old); Vives v. Wells Fargo Bank, N.A., 128 So. 3d 9, 15 (Fla. 3d DCA 2012) (return of service was not presumed valid where service was made on an unnamed person at defendant's residence. Servic......