BAYVIEW LOAN SERVICING, LLC v. HUSO DZIDZOVIC , 249 So. 3d 1265 ( 2018 )


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  •                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    BAYVIEW LOAN SERVICING, LLC,               )
    )
    Appellant,                   )
    )
    v.                                         )           Case No. 2D17-3608
    )
    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.                   )
    )
    Opinion filed June 22, 2018.
    Appeal from the Circuit Court for Pinellas
    County; Jack R. St. Arnold, Judge.
    Jonathan L. Black of Phelan Hallinan
    Diamond & Jones, PLLC, Fort Lauderdale,
    for Appellant.
    No appearance for Appellees.
    LaROSE, Chief Judge.
    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.
    Background
    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.
    Analysis
    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 "judicial action is arbitrary, fanciful, or unreasonable . . . .
    1Defaults
    were entered against the codefendants below, including Edina
    Dzidzovic. None of the codefendants appeared in this appeal.
    -2-
    [D]iscretion is abused only where no reasonable [person] would take the view adopted
    by the trial court." Trease v. State, 
    768 So. 2d 1050
    , 1053 n.2 (Fla. 2000) (second
    alteration in original) (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) (reversing trial
    court's ex parte order vacating an order of dismissal); Shlishey the Best, Inc. v.
    CitiFinancial Equity Servs., Inc., 
    14 So. 3d 1271
    , 1274-75 (Fla. 2d DCA 2009) (reversing
    the trial court's ex parte order granting a motion to vacate a foreclosure sale where the
    third-party purchaser was provided neither notice nor an opportunity to be heard).
    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) ("We conclude that there was a
    valid modification agreement between BAC and the Nowlins and, therefore, the trial
    court erred in entering the judgment of foreclosure.").
    -3-
    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) (holding that the trial court erred in granting rule
    1.540(b)(3) motion to vacate without holding evidentiary hearing where allegations
    supported granting motion, but opposing party presented conflicting affidavit); Avi-Isaac
    v. Wells Fargo Bank, N.A., 
    59 So. 3d 174
    , 177 (Fla. 2d DCA 2011) (reversing and
    remanding order granting the bank's motion to vacate sale because the purchaser "did
    not have a meaningful opportunity to be heard when he was denied an evidentiary
    hearing where he could contest the facts alleged in the affidavit"); McCrea v. Deutsche
    Bank Nat'l Trust Co., 
    993 So. 2d 1057
    , 1058-59 (Fla. 2d DCA 2008) (holding that the
    trial court's failure to conduct a hearing before vacating a prior order of dismissal based
    upon ex parte communications with only one of the parties improperly excluded the
    other party from addressing whether the order should be vacated as the product of
    mistake under rule 1.540(b)); Monsour v. Balk, 
    705 So. 2d 968
    , 969 (Fla. 2d DCA 1998)
    (holding that trial court erred in denying motion for relief from judgment without
    "conducting an evidentiary hearing to determine whether or not the facts in the affidavits
    could be proven"); Schuman v. Int'l Consumer Corp., 
    50 So. 3d 75
    , 77 (Fla. 4th DCA
    2010) ("[T]he motion for relief from judgment stated a claim of 'colorable entitlement to
    relief' that would require the trial court to conduct an evidentiary hearing before
    dismissing the motion.").
    Third, the order is not supported by competent substantial evidence.
    " 'The making of a contract depends not on the agreement of two minds in one intention
    but on the agreement of two sets of external signs.' A trial court's finding of a meeting
    -4-
    of the minds must be supported by competent substantial evidence." Cheverie v.
    Geisser, 
    783 So. 2d 1115
    , 1119 (Fla. 4th DCA 2001) (first quoting Robbie v. City of
    Miami, 
    469 So. 2d 1384
    , 1385 (Fla. 1985); then citing Roggio-Wilgus v. Marlin, 
    699 So. 2d 1050
     (Fla. 4th DCA 1997)). 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) ("[D]iscretion can only be exercised by a court after it has
    received competent, substantial evidence permitting a discretionary decision."); see also
    Rude v. Golden Crown Land Dev. Corp., 
    521 So. 2d 351
    , 353 (Fla. 2d DCA 1988)
    ("Absent such evidence, a court's vacation of final judgment constitutes an abuse of
    discretion.").
    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) ("A fundamental principle of
    appellate procedure is that an appellate court is not empowered to make findings of
    fact."); Douglass v. Buford, 
    9 So. 3d 636
    , 637 (Fla. 1st DCA 2009) ("Sitting as an
    appellate court, we are precluded from making factual findings ourselves in the first
    instance."). 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 to conduct a hearing. In doing so, we do not opine on Bayview's
    contention that Mr. Dzidzovic's motion was time-barred. We note that Mr. Dzidzovic
    filed his motion over one year after entry of the final judgment of foreclosure. This fact
    is not necessarily dispositive under rule 1.540(b).
    -5-
    On motion and upon such terms as are just, the court may
    relieve a party or a party’s legal representative from a final
    judgment, decree, order, or proceeding for the following
    reasons: (1) mistake, inadvertence, surprise, or excusable
    neglect; (2) newly discovered evidence which by due
    diligence could not have been discovered in time to move for
    a new trial or rehearing; (3) fraud (whether heretofore
    denominated intrinsic or extrinsic), misrepresentation, or
    other misconduct of an adverse party; (4) that the judgment
    or decree is void; or (5) that the judgment or decree has
    been satisfied, released, or discharged, or a prior judgment
    or decree upon which it is based has been reversed or
    otherwise vacated, or it is no longer equitable that the
    judgment or decree should have prospective application.
    Fla. R. Civ. P. 1.540(b). Although "[t]he motion shall be filed . . . for reasons (1), (2),
    and (3) not more than 1 year after the judgment . . . was entered," the only time
    constraint for a motion under rule 1.540(b)(5) is that it be filed "within a reasonable time"
    following entry of judgment. 
    Id.
     We leave it to the trial court, on remand, to determine
    the timeliness of the motion in light of an alleged loan modification agreement that may
    have superseded the foreclosure judgment. See In re Guardianship of Schiavo, 
    792 So. 2d 551
    , 560 (Fla. 2d DCA 2001) ("[R]ule [1.540(b)(5)] requires the movant to
    establish that significant new evidence or substantial changes in circumstances arising
    after the entry of the judgment make it 'no longer equitable' for the trial court to enforce
    its earlier order.").
    Conclusion
    We reverse the order on appeal and remand for further proceedings
    consistent with this opinion.
    Reversed and remanded.
    CRENSHAW and LUCAS, JJ., Concur.
    -6-