Third District Court of Appeal
State of Florida
Opinion filed February 23, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1557
Lower Tribunal No. 19-25195
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Bank of America, N.A.,
Petitioner,
vs.
Lazara A. Rodriguez,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Peter
R. Lopez, Judge.
Liebler, Gonzalez & Portuondo, and Adam J. Wick and Alan M. Pierce,
for petitioner.
Jacobs Legal, PLLC, and Bruce Jacobs, for respondent.
Before MILLER, LOBREE and BOKOR, JJ.
PER CURIAM.
Bank of America, N.A. petitions for a writ of prohibition or certiorari
seeking to quash the trial court’s July 28, 2021 order to the extent it denied
Bank of America’s motions to dismiss based on subject-matter jurisdiction
and litigation privilege.
In the underlying independent action giving rise to the instant petition,
Rodriguez seeks to vacate a consent final judgment of foreclosure obtained
in a previous foreclosure action. Instead of filing a motion in the foreclosure
case within a year of judgment based on intrinsic fraud, as provided in Florida
Rule of Civil Procedure 1.540, Rodriguez filed an independent action more
than a year after final judgment alleging extrinsic fraud. After a review of the
record, including the briefings of the parties,1 we conclude that despite
Rodriguez’s characterization, the allegations constitute intrinsic fraud.
Therefore, “the trial court’s denial of the motion to dismiss on litigation
privilege grounds constitutes irreparable harm as a matter of law.” Bank of
N.Y. Mellon v. Abadia,
314 So. 3d 595, 596 (Fla. 3d DCA 2020) (citations
omitted).
1
Counsel for respondent failed to comply with the September 20, 2021, noon
deadline for filing its response, instead filing its response at 6:23 p.m.
However, counsel filed a motion to accept the response as timely filed,
claiming inadvertence and mistake, which petitioner opposed. Upon
consideration, we grant the motion to accept the response as timely filed and
deny petitioner’s motion to strike.
2
In the previous foreclosure action, the burden of proof as to each
required element of foreclosure fell on the bank. Rodriguez had the right to
make the bank introduce evidence, present witnesses subject to cross-
examination, and prove its case before a finder of fact. She didn’t exercise
that right. Instead, Rodriguez entered into a stipulated final judgment. After
nine years of litigation, she and the bank voluntarily agreed that she hadn’t
paid her mortgage, that she owed money, and that she wouldn’t contest
foreclosure. In return, the bank promised not to sell the house within ninety
days from the stipulated final judgment and not to seek a deficiency judgment
resulting from the sale. Despite the stipulated judgment, Rodriguez files the
underlying action seeking to undo the benefit of her bargain, the stipulated
final judgment of foreclosure, claiming that the judgment was procured by
fraud.
Because Rodriguez’s allegations constitute intrinsic fraud, rather than
extrinsic fraud, the one-year bar under Florida Rule of Civil Procedure 1.540
applies. Greenwich Ass’n, Inc. v. Greenwich Apts., Inc.,
979 So. 2d 1116,
1118–19 (Fla. 3d DCA 2008) (“[I]ntrinsic fraud is defined as ‘the presentation
of misleading information on an issue before the court that was tried or could
have been tried. A challenge to a final judgment based upon intrinsic fraud
must be brought by filing a timely motion in the original trial court.’”) (internal
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citations omitted); see also Parker v. Parker,
950 So. 2d 388, 391 (Fla. 2007)
(“Under rule 1.540(b), relief from a judgment based on intrinsic fraud must
be sought by motion within one year of its entry.”).
Despite filing an independent action, Rodriguez cannot redefine and
change the underlying claim from intrinsic to extrinsic fraud. See
id. at 391–
92 (“In other words, extrinsic fraud occurs where a defendant has somehow
been prevented from participating in a cause. . . . This Court . . . has
expressly held that false testimony given in a proceeding is intrinsic fraud.”).
The record demonstrates that Rodriguez participated, for years, represented
by able counsel, in the underlying foreclosure action. No party compelled
Rodriguez to agree to a consent final judgment. Rodriguez offered no
allegations (or proof) that the bank engaged in extrinsic fraud, collateral to
the issues in the foreclosure case, to secure the results in that case. No one
prevented her from continuing to defend her case, or pursue counterclaims
or affirmative defenses, which she did ably for years until entry of the consent
judgment on March 2, 2018. Instead, the alleged fraud of which Rodriguez
complains in the underlying independent action to vacate the foreclosure
sale (without tying any of the alleged fraud to Rodriguez’s case specifically)
was intrinsic—that is, to the extent it existed it was “baked in” to the
correspondence and statements from the bank and was there all along for
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discovery and exploration in the original foreclosure case. It “pertain[ed] to
the issues that have been tried or could have been tried.”
Id. at 391
(emphasis added).
The consent judgment on its face reveals that it was a bargained-for
exchange. Both sides, Rodriguez, and the foreclosing bank, were
represented by counsel. Both sides gave up certain rights in exchange for
certainty and finality. Specifically, Rodriguez “consent[ed] to the entry of a
final judgment of foreclosure” and, in exchange, Plaintiff (a) waive[ed], its
right, if any, to a deficiency judgment . . . and (b) agree[d] the foreclosure
sale date [would] not be set earlier than 90 days from entry of the final
judgment of foreclosure.” Rodriguez chose the certainty of the bank not
seeking a deficiency judgment and the assuredness that no sale would occur
for three months; she has bettered this three-month deferral by almost three-
and-a-half years and counting. In exchange, Rodriguez represented that
she “waive[d] all claims against the Plaintiff and any defenses to this
foreclosure action.” (Emphasis added). Rodriguez litigated her
foreclosure case for years until deciding to negotiate and agree to a
stipulated consent final judgment. Either side could have sought to continue
the foreclosure. Either side could have pursued claims or defenses. She
chose negotiation and the certainty of an agreed-to judgment. She doesn’t
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get a late do-over because of intrinsic fraud. See, e.g., Alexander v. First
Nat’l Bank of Titusville,
275 So. 2d 272, 274 (Fla. 4th DCA 1973) (explaining
the limited application of an independent action for fraud based upon the text
of the relevant rule and public policy favoring finality, reaffirming the
requirement that intrinsic fraud be brought within one year in the original
action and not via an independent action). Accordingly, we grant the petition
for certiorari, 2 quash the order under review, and remand for proceedings
consistent with this opinion.
Petition for certiorari granted, order quashed, and cause remanded.
2
Because the certiorari relief granted herein disposes of the issues in this
petition, we decline to address the request for prohibition.
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