Kelly v. HSBC Bank USA , 240 So. 3d 107 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed February 28, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2830
Lower Tribunal No. 14-19273
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Denis Kelly,
Appellant,
vs.
HSBC Bank USA National Association, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.
Spittler & Associates, P.A., and John Spittler, Jr., for appellant.
Leόn Cosgrove, LLP, and Benjamin Weinberg and John Byrne and Carly A.
Kligler, for appellee.
Before SALTER, EMAS and FERNANDEZ, JJ.
SALTER, J.
Denis Kelly, mortgagor and plaintiff below, appeals orders: (1) vacating a
final judgment initially obtained by him in the case below; (2) dismissing with
prejudice his complaint to quiet title to his residence in Miami Beach, Florida; and
(3) granting a motion to impose sanctions against him pursuant to section 57.105,
Florida Statutes (2017).1 In his complaint, Kelly alleged that the mortgage he
executed in 2005 was fully accelerated in April 2008 and had become invalid and
unenforceable by virtue of the applicable statute of limitation.
For the reasons which follow, we affirm the order vacating the default final
judgment initially obtained by Kelly and the order dismissing Kelly’s complaint
with prejudice. We dismiss as premature Kelly’s appeal from the sanctions order.
Kelly initially obtained a final default judgment in 2014 against the
mortgagee and defendant (appellee here), HSBC Bank USA National Association
(“HSBC”). HSBC moved to vacate that judgment on the grounds that Kelly’s
complaint had not been properly served on HSBC. The parties briefed and argued
that motion to the trial court, which granted the motion and vacated the default
judgment in 2015. We find no merit whatsoever in Kelly’s argument that HSBC’s
motion to vacate should have been denied. The improperly-served complaint
rendered the default final judgment void. Falkner v. Amerifirst Fed. Sav. & Loan
Ass’n, 489 So. 2d 758 (Fla. 3d DCA 1986).
1 The order on sanctions ruled on entitlement, but did not fix the amount of
attorney’s fees to be awarded.
2
In 2016, HSBC moved to dismiss Kelly’s complaint to quiet title. By that
time, Kelly’s legal theory regarding acceleration and unenforceability of HSBC’s
mortgage (by virtue of the bar of the statute of limitations) had been definitively
rejected by the Supreme Court of Florida and by this Court. Bartram v. U.S. Bank
Nat’l Ass’n, 211 So. 3d 1009 (Fla. 2016); Deutsche Bank Trust Co. Americas v.
Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016). The trial court correctly dismissed
Kelly’s complaint with prejudice on the basis of those decisions.
We dismiss the attempt to appeal the order granting in part HSBC’s motion
for sanctions, because the order only addressed entitlement and not the amount of
attorney’s fees to be imposed against Kelly. That attempt was premature, and the
order on entitlement to sanctions was not an appealable order. HSBC Bank USA,
Nat’l Ass’n for Fremont Home Loan Tr. 2005-B, Mortgage-Backed Certificates,
Series 2005-B v. Buset, 216 So. 3d 701, 704 (Fla. 3d DCA 2017).
Affirmed as to the orders vacating the final default judgment against HSBC
and dismissing Kelly’s complaint with prejudice; dismissed as to the premature
appeal from the order determining HSBC’s entitlement to sanctions.
3