state of florida jacaranda, llc, a new mexico llc,loll (“mr. loll”) of nationstar mortgage, llc...
TRANSCRIPT
IN THE SECOND DISTRICT COURT OF APPEAL
STATE OF FLORIDA
JACARANDA, LLC, a New Mexico LLC,
as Trustee,
Appellant,
CASE NO.: 2D15-263
vs.
LT CASE NO: 2014-CA-4198
CITIBANK, N.A., as Trustee for
First Franklin Mortgage Loan Trust,
Mortgage Loan Asset-Backed Certificates,
Series 2005-FF12,
Appellee.
/
ON APPEAL FROM THE CIRCUIT COURT
OF THE THIRTEENTH CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
__________________________________________________________________
APPELLANT’S INITIAL BRIEF
Mark P. Stopa, Esquire
FBN: 550507
STOPA LAW FIRM
447 Third Ave. N., Suite 405
St. Petersburg, FL 33701
(727) 851-9551
ATTORNEYS FOR APPELLANT
ii
TABLE OF CONTENTS
TABLE OF CITATIONS ............................................................................... iii
STATEMENT OF THE CASE AND FACTS ............................................... 1
STANDARD OF REVIEW ............................................................................ 7
SUMMARY OF ARGUMENT ...................................................................... 8
ARGUMENT .................................................................................................. 9
I. HAVING ALREADY DENIED A MOTION SEEKING RELIEF
UNDER FLA.R.CIV.P. 1.540, THE LOWER COURT ERRED
BY GRANTING A SECOND SUCH MOTION ON THE SAME
GROUNDS ........................................................................................... 9
II. THE LOWER COURT ERRED BY GRANTING 1.540 RELIEF
WHERE WILMINGTON FAILED TO PROVE EXCUSABLE
NEGLECT OR INSUFFICIENT SERVICE OF PROCESS ............... 13
III. THE LOWER COURT ERRED BY GRANTING 1.540 RELIEF
ON BEHALF OF WILMINGTON, A NON-PARTY ......................... 20
CONCLUSION ............................................................................................... 22
CERTIFICATE OF SERVICE ....................................................................... 23
CERTIFICATE OF FONT COMPLIANCE .................................................. 23
iii
TABLE OF CITATIONS
Adams v. Estate of Henderson,
___ So. 3d ____ (Fla. 4th DCA 2015) .................................................. 10
Arleo v. Garcia,
695 So. 2d 862 (Fla. 4th DCA 1997) .................................................... 12-13
Atlas v. City of Pembroke Pines,
441 So. 2d 652 (Fla. 4th DCA 1983) .................................................... 11
Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd.,
636 So. 2d 838 (Fla. 2d DCA 1994) ..................................................... 13-14
Boca Stel 2, LLC v. JP Morgan Chase Bank, N.A.,
___ So. 3d ___ (Fla. 5th DCA 2014) .................................................... 7
Capital Bank v. Knuck,
537 So. 2d 697 (Fla. 3d DCA 1989) ..................................................... 13
Carner Bank of Miami Beach v. R.G. Wolff & Co., Inc.,
329 Sol. 2d 298 (Fla. 1976) .................................................................. 7
Clay County Land Trust v. JP Morgan Chase Bank, N.A.,
___ So. 3d ___ (Fla. 1st DCA 2014) .................................................... 16-17
Coleman v. Grandma’s Place, Inc.,
63 So. 3d 929 (Fla. 4th DCA 2011) ...................................................... 16
Cordova v. Jolcover,
942 So. 2d 1045 (Fla. 2d DCA 2006) ................................................... 18
Flagstar Bank, F.S.B. v. Cleveland,
87 So. 3d 63 (Fla. 4th DCA 2012) ........................................................ 10
Geer v. Jacobsen,
880 So. 2d 717 (Fla. 2d DCA 2004) ..................................................... 13
iv
Hall v. Byington,
421 So. 2d 817 (Fla. 4th DCA 1982) .................................................... 6
Hernandez v. State Farm Mut. Auto. Ins. Co.,
32 So. 3d 695 (Fla. 4th DCA 2010) ...................................................... 7
In re. D.N.H.W.,
955 So. 2d 1236 (Fla. 2d DCA 2007) ................................................... 7
Intercoastal Marina Towers, Inc. v. Suburban Bank,
506 So. 2d 1177 (Fla. 4th DCA 1987) .................................................. 11-12
Jaffer v. Miami Beach Redev. Agency,
392 So. 2d 1305 (Fla. 1980) ................................................................. 20
McMahon v. Carter,
818 So. 2d 560 (Fla. 2d DCA 2002) ..................................................... 12
Mecca Multimedia, Inc. v. Kurzbard,
954 So. 2d 1179 (Fla. 3d DCA 2007) ................................................... 7
Perkins v. Salem,
249 So. 2d 466 (Fla. 1st DCA 1971) .................................................... 9
Potucek v. Smeja,
419 So. 2d 1192 (Fla. 2d DCA 1982) ................................................... 11
Purcell v. Deli Man, Inc.,
411 So. 2d 378 (Fla. 4th DCA 1982) .................................................... 11
Richardson v. Albury,
505 So. 2d 521 (Fla. 2d DCA 1987) ..................................................... 18-19
Ross v. State,
45 So. 3d 403 (Fla. 2010) ..................................................................... 7
Salomon v. Taylor,
30 So. 48 (Fla. 1905) ............................................................................ 20
v
Sas v. Fed. Nat’l Mortg. Assn.,
112 So. 3d 778 (Fla. 2d DCA 2013) ..................................................... 16
Schaffer v. Ling,
76 So. 3d 940 (Fla. 4th DCA 2011) ...................................................... 7
Scherer v. The Club, Inc.,
328 So. 2d 532 (Fla. 3d DCA 1976) ..................................................... 14-15
SR Acquisitions-Florida City, LLC v. San Remo Homes at Florida City, LLC,
78 So. 3d 636 (Fla. 3d DCA 2011) ....................................................... 20
Steeprow Enters., Inc. v. Lennar Homes, Inc.,
590 So. 2d 21 (Fla. 4th DCA 1991) ...................................................... 10-11
Streater v. Stamper,
466 So. 2d 397 (Fla. 1st DCA 1985) .................................................... 10, 12
Fla.Stat. 48.081 ............................................................................................... 18
Fla.R.Civ.P. 1.540 ........................................................................................... passim
1
STATEMENT OF THE CASE
Appellant, JACARANDA, LLC, a New Mexico LLC, as Trustee
(“Jacaranda”), initiated the lower court proceeding by suing Appellee, CITIBANK,
N.A., as Trustee for First Franklin Mortgage Loan Trust, Mortgage Loan Asset-
Backed Certificates, Series 2005-FF12 (“Citibank”), to quiet title.1 Appendix to
Initial Brief, 1 (Appendix is hereinafter “App.”).
On April 24, 2014, Jacaranda effectuated service of process upon Citibank via
personal service on its Vice President, Richard Gaff (“Mr. Gaff”). App. 2 (Verified
Return of Service). After Citibank failed to respond, the clerk entered a default,
then, on May 28, 2014, the lower court entered Final Judgment against Citibank
pursuant to the default. App. 3-5.
Citibank never sought rehearing under Fla.R.Civ.P. 1.530 and did not appeal.
In fact, Citibank never sought relief under Fla.R.Civ.P. 1.540, either. Instead, on
May 28, 2014, Wilmington Trust National Association (“Wilmington”) filed a
Motion to Vacate Default and Objection to Entry of Final Judgment (“Motion to
Vacate”) under Fla.R.Civ.P. 1.540, arguing insufficient service of process and
excusable neglect. App. 6.
Wilmington was not a party below and never sought an Order authorizing it
1 Mercedes V. Scott was sued as well, but she was dropped as a party.
2
to intervene or substitute as a party in place of Citibank. Nonetheless, Wilmington
filed the Motion to Vacate (and other, subsequent motions) as if it were authorized
to do so as a defendant. The Motion to Vacate was not verified and not accompanied
by an affidavit. App. 6.
On June 26, 2014, Wilmington filed a Notice of Hearing on the Motion to
Vacate, setting that motion for hearing on August 27, 2014. App. 7.
Notwithstanding it having noticed the hearing two months earlier,
Wilmington waited until the day before the hearing to file its Supplemental Motion
to Vacate Default and Final Judgment (“Supplemental Motion to Vacate”) as well
as its Verified Amended Supplemental Motion to Vacate Default and Final
Judgment (“First Amended Motion to Vacate”). App. 8-10. The verification on the
First Amended Motion to Vacate reflects that it was entered not on personal
knowledge, but to the best of the signer’s “knowledge and belief.” App. 9.
On August 28, 2014, after having heard arguments from both sides the day
prior, the lower court entered an Order denying the Motion to Vacate, ruling, in
pertinent part:
Wilmington seeks to unwind the default and resulting final
judgment based upon its assertion that service of process was improper,
and even if it was proper, the default and final judgment should be set
aside because of excusable neglect, due diligence after discovery, and
the existence of a meritorious defense. While a properly supported
motion under Rule 1.540 may have obtained the desired result, the
3
motion as filed and supported does not. …
ORDERED AND ADJUDGED that the Motion to Vacate
Default and Objection to Entry of Final Judgment is denied without
prejudice.
App. 11.
Neither Citibank nor Wilmington appealed the August 28, 2014 Order
denying the Motion to Vacate. Neither sought rehearing, either. Instead, on October
7, 2014 (some six weeks later), Wilmington filed its Second Amended Motion to
Vacate Default and Final Judgment (“Second Amended Motion to Vacate”), then
noticed that motion for hearing on December 18, 2014. App. 12, 13.
On December 16, 2014, just two days before the scheduled hearing,
Wilmington filed a lone affidavit in support of the Second Amended Motion to
Vacate. The Affidavit was not executed by Mr. Gaff (the individual upon whom
service was effectuated), any employees of Citibank (the named Defendant), or any
employees of Wilmington (the movant and alleged successor trustee). Instead, A.J.
Loll (“Mr. Loll”) of Nationstar Mortgage, LLC (“Nationstar”) executed the affidavit,
asserting Mr. Gaff was a “branch manager” of a Citibank branch office located in
Palm Beach, Florida and that Mr. Gaff “inadvertently failed to send the Summons
and Complaint to Citibank’s litigation department.” App. 14. The affidavit attached
a Limited Power of Attorney, purporting to authorize Nationstar to act on behalf of
Wilmington, but gave no insight as to how Mr. Loll, a Nationstar employee, had any
4
personal knowledge of Mr. Gaff’s actions. To wit, the affidavit referred to “business
records,” but save the Limited Power of Attorney, no such documents were attached.
App. 14.
On December 18, 2014, the lower court conducted a hearing on the Second
Amended Motion to Vacate. No testimony was taken. Wilmington relied solely on
the affidavit of Mr. Loll as well as legal argument. Jacaranda opposed the motion
on several grounds. App. 15.
First, Jacaranda argued the lower court was prohibited from granting the
Second Amended Motion to Vacate, both for lack of jurisdiction and res judicata,
because it had already denied the Motion to Vacate on the same grounds. As
Jacaranda’s undersigned counsel explained, a successive 1.540 motion is not
authorized once a lower court denies the first such motion. App. 15, pp. 14-22.
During this argument, the lower court interjected, and the following exchange
took place:
THE COURT: Well, let me ask you --
MR. STOPA: -- that one first or --
THE COURT: -- on that point: The reason the first one was turned
down was – you pointed out some deficiency in their paperwork, lack
of an affidavit. So an appeal of that would have been fruitless, I would
think.
MR. STOPA: I would tend to agree, but there is no exception that
5
allows you to file another motion once you get your evidence together,
once you filed the motion the right way or something like that at all.
You get one crack at a 1.540 motion. And if it’s denied, for whatever
reason, then that’s it. You don’t get to do it again. …
… You don’t get to keep bringing 1.540 motions until you
hopefully get one that you win. You get one chance. If you lose, then
your only remedy is to appeal. And if you can’t appeal, then, I’m sorry,
you lost. That’s what all the cases uniformly hold. There aren’t any
exceptions.
App. 15, pp. 18-20.
Second, Jacaranda opposed the Second Amended Motion to Vacate on the
merits, arguing service of process was proper and Wilmington did not establish
excusable neglect. In particular, Jacaranda contended the Verified Return of Service
reflecting service on Mr. Gaff, a Vice President of Citibank, was regular on its face,
and the affidavit of Mr. Loll did not disprove service or prove excusable neglect,
particularly where: (i) Mr. Loll did not dispute Mr. Gaff was Vice President of
Citibank; (ii) Mr. Loll admitted Mr. Gaff was a “branch manager” of Citibank; and
(iii) as an employee of a totally different company, Mr. Loll lacked any evidentiary
basis to testify about what Citibank (or Mr. Gaff) did with the Summons and
Complaint after being served.2 App. 15.
Third, Jacaranda argued the Second Amended Motion to Vacate could not be
2 Jacaranda also objected to Citibank’s use of the affidavit on notice grounds,
as it was filed just two days before the hearing, and argued that, at worst, an
evidentiary hearing was required to resolve any factual dispute. App. 15.
6
granted because Wilmington, the party prosecuting that motion, was not even a party
in the proceeding (and had not substituted or intervened). App. 15.
On December 16, 2014, in the face of these arguments, the lower court entered
an Order granting the Second Amended Motion to Vacate, setting aside the Final
Judgment. The lower court gave no rationale for its ruling, except to say the
deficiency which prompted its denial of the Motion to Vacate, i.e. the lack of an
affidavit or verified motion,3 “has now been corrected.” App. 16.
This timely appeal ensues.
3 The First Amended Motion to Vacate was filed before the hearing on the
Motion to Vacate, and it was verified, but as the lower court correctly ruled in
denying the Motion to Vacate, a motion verified on “knowledge and belief” does not
prove the facts alleged. See Hall v. Byington, 421 So. 2d 817, 818 (Fla. 4th DCA
1982) (“The trial judge mistakenly believed the motion to be sworn, but on close
examination of the lawyer's oath, one sees the allegations were “true and correct to
the best of his ‘knowledge and belief.’ Such a statement was insufficient because it
is qualified, not positive.”).
7
STANDARD OF REVIEW
“The issue of whether the Florida circuit court has subject matter jurisdiction
involves a question of law and is therefore subject to de novo review.” Schaffer v.
Ling, 76 So. 3d 940, 941 (Fla. 4th DCA 2011) (citing In re. D.N.H.W., 955 So. 2d
1236, 1238 (Fla. 2d DCA 2007)). Here, numerous Florida courts have characterized
the lower court’s granting of a successive motion for relief under Fla.R.Civ.P. 1.540
as jurisdictional in nature. See cases cited, infra. As such, the standard of review
for this first issue on appeal is de novo.
“A trial court's ruling on a motion to quash service of process is subject to a
de novo standard of review.” Boca Stel 2, LLC v. JP Morgan Chase Bank, N.A.,
___ So. 3d ____ (Fla. 5th DCA 2014) (citing Hernandez v. State Farm Mut. Auto.
Ins. Co., 32 So. 3d 695, 698 (Fla. 4th DCA 2010) and Mecca Multimedia, Inc. v.
Kurzbard, 954 So. 2d 1179, 1181 (Fla. 3d DCA 2007)). Hence, the second issue on
appeal is also subject to a de novo standard.
This Court reviews the application of law to facts under a de novo standard.
See Ross v. State, 45 So. 3d 403 (Fla. 2010). Here, whether the lower court erred
by granting 1.540 relief to Wilmington even though Wilmington was not a party
below is hence reviewed de novo.
8
SUMMARY OF ARGUMENT
Jacaranda personally served Citibank with process, yet it failed to respond,
resulting in a default and, ultimately, a Final Judgment. Citibank never sought
rehearing or 1.540 relief and did not appeal. Instead, Wilmington, a non-party,
sought 1.540 relief, asserting insufficient service of process and excusable neglect.
After the lower court denied Wilmington’s first 1.540 motion, res judicata
precluded Wilmington from making those same arguments in a second such motion,
and the lower court lacked jurisdiction to grant such relief. Established law could
not be clearer in these regards. By ruling otherwise, granting the successive 1.540
motion and vacating the Final Judgment, the lower court reversibly erred.
Additionally, Wilmington failed to prove excusable neglect or insufficient
service of process. The Verified Return of Service was regular on its face, showing
personal service upon a Vice President of Citibank. Wilmington did not prove
otherwise by “clear and convincing evidence,” particularly where its only affidavit
was from an individual who worked for Nationstar (not Citibank or Wilmington).
Finally, under the plain language of Fla.R.Civ.P. 1.540, Wilmington was not
entitled to 1.540 relief, as it was not a party below or a representative of Citibank.
Under a de novo standard, this Court should reverse the Order at bar and
reinstate the Final Judgment.
9
ARGUMENT
I. HAVING ALREADY DENIED A MOTION SEEKING RELIEF
UNDER FLA.R.CIV.P. 1.540, THE LOWER COURT ERRED BY
GRANTING A SECOND SUCH MOTION ON THE SAME GROUNDS.
Well-established Florida law precludes the granting of a successive motion
for relief under Fla.R.Civ.P. 1.540 where the first such motion was denied. The
Florida Supreme Court so held in 1976 when it adopted the following principle of
law, as set forth in Perkins v. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971):
Upon a consideration of the grounds for the second and successive
motion for relief as set forth therein, it is apparent that each of such
grounds is identical with those incorporated in the first motion for relief
filed by appellant, or relate to matters of evidence and procedure which
with due diligence could have been included in such motion as grounds
for the relief prayed. The court’s denial of the initial motion for relief
was therefore res judicata as to all the grounds assigned as a basis for
relief in the second and successive motion. The trial court was
eminently correct in denying the relief prayed for, and the order
denying such relief is therefore affirmed.
Carner Bank of Miami Beach v. R.G. Wolff & Co., Inc., 329 So. 2d 298 (Fla. 1976)
(“the rule of law announced in Perkins is correct”).
In the ensuing years, several Florida decisions refused to allow 1.540 relief
where the movant had already sought such relief and lost. Some such decisions have
couched the rationale in terms of res judicata, whereas others have deemed it
jurisdictional, but the cases all uniformly preclude relief based on a successive 1.540
motion.
10
In Streater v. Stamper, for instance, the lower court entered judgment and
denied a 1.540 motion, but then granted a successive 1.540 motion. 466 So. 2d 397
(Fla. 1st DCA 1985). On appeal, the First District reversed the granting of that
second motion and reinstated the judgment, explaining:
to the extent that the 1983 motion merely renews the allegations upon
which relief was previously denied, the doctrine of res judicata
precludes relitigation of the issue presented. The court thus erred in
entertaining appellee’s untimely motion and granting the relief
requested.
Id. at 398.
On several occasions, the Fourth District has been presented with this same
fact pattern: a lower court’s entry of final judgment, denial of a 1.540 motion, and
granting of a successive 1.540 motion. Each time, the Fourth District reversed the
order granting the successive 1.540 motion and reinstated the final judgment. See
Adams v. Estate of Henderson, ___ So. 3d ___ (Fla. 4th DCA 2015) (“We agree
with Adams that granting the Estate’s second and successive motion was error and
reverse because the trial court was without authority to grant relief.”); Flagstar Bank,
F.S.B. v. Cleveland, 87 So. 3d 63 (Fla. 4th DCA 2012) (“This court has long held
… a trial court is without jurisdiction to entertain a second motion for relief from
judgment which attempts to relitigate matters settled by a prior order denying
relief.”); Steeprow Enters., Inc. v. Lennar Homes, Inc., 590 So. 2d 21, 23 (Fla. 4th
11
DCA 1991) (“the trial court reversibly erred in entertaining Lennar’s renewed
motion to vacate because the motion attempted to relitigate matters settled by a prior
order denying relief”); Purcell v. Deli Man, Inc., 411 So. 2d 378, 379 (Fla. 4th DCA
1982) (“We reverse upon a holding that the circuit court committed fundamental
error in entertaining a second Rule 1.540(b) motion to set aside or vacate when the
grounds in that second motion could have been raised in the first Rule 1.540(b)
motion”).
Significantly, the denial of a 1.540 motion does not give rise to a rehearing,
so the movant’s sole remedy upon such a ruling is to appeal. See Potucek v. Smeja,
419 So. 2d 1192 (Fla. 2d DCA 1982). As the Fourth District ruled in this context:
A trial court is without jurisdiction to entertain a second motion for
relief from judgment which attempts to relitigate matters settled by a
prior order denying relief. The city attempts to distinguish this case …
by contending that its second motion -- though not styled as such -- was
actually a motion for rehearing. Thus, it claims not to have taken the
impermissible “second bite.” We do not agree. … [A]n order denying
a motion for relief from judgment, pursuant to Rule 1.540(b),
Fla.R.Civ.P., is not subject to a motion for rehearing.
Atlas v. City of Pembroke Pines, 441 So. 2d 652 (Fla. 4th DCA 1983); see also
Intercoastal v. Marina Towers, Inc. v. Suburban Bank, 506 So. 2d 1177, 1179 (Fla.
4th DCA 1987) (“Appellants sought relief pursuant to rule 1.540(b) and set forth
various grounds therefor. If dissatisfied with the court’s ruling thereon their remedy
was by appeal, not by [sic] filing successive motions to vacate containing the same
12
general grounds or even new ones, which could have been raised in the first
motion.”).
In the case at bar, the lower court reversibly erred by ruling contrary to this
line of cases. Quite simply, where the Motion to Vacate sought 1.540 relief based
on excusable neglect and insufficient service of process, Wilmington was precluded
from obtaining 1.540 relief on these same grounds via the Second Amended Motion
to Vacate.
The lower court’s denial of the Motion to Vacate “without prejudice” due to
insufficient evidence did not authorize it to circumvent the above-cited line of cases.
To illustrate, in Streater, the lower court denied the first 1.540 motion “at this time”
based on insufficient evidence, yet the First District still adhered to this principle of
law, precluding relief on a successive 1.540 motion. 466 So. 2d at 398. Tellingly,
Citibank presented no case law to the contrary at the hearing, App. 16, as none exists.
Where the Florida Rules of Civil Procedure authorize just one motion, a
successive motion is not permitted even if that first motion was denied “without
prejudice.” In other words, trial courts do not have jurisdiction to authorize that
which the Rules do not allow. See McMahon v. Carter, 818 So. 2d 560 (Fla. 2d
DCA 2002); Arleo v. Garcia, 695 So. 2d 862 (Fla. 4th DCA 1997) (granting writ of
prohibition where lower court granted 1.530 motion after denying first such motion
13
“without prejudice”); Capital Bank v. Knuck, 537 So. 2d 697, 698 (Fla. 3d DCA
1989) (“the trial court has no authority … to permit the filing of any further motion
for rehearing beyond the one authorized by Florida Rule of Civil Procedure 1.530”).
Hence, the trial court was not authorized to permit the Second Amended Motion to
Vacate, even if that was its intent when it denied the Motion to Vacate.
After the lower court denied its Motion to Vacate under Fla.R.Civ.P. 1.540
(arguing excusable neglect and insufficient service of process), Wilmington’s sole
recourse was to appeal. Having failed to do so, res judicata precluded Wilmington
from bringing a successive 1.540 motion (re-arguing excusable neglect and
insufficient service of process), and the lower court lacked jurisdiction to grant such
a motion. By ruling otherwise, the lower court reversibly erred. For this reason
alone, under a de novo standard of review, this Court should reverse the Order at bar
and remand with instructions to reinstate the Final Judgment.
II. THE LOWER COURT ERRED BY GRANTING 1.540 RELIEF
WHERE WILMINGTON FAILED TO PROVE EXCUSABLE
NEGLECT OR INSUFFICIENT SERVICE OF PROCESS.
It is axiomatic that parties seeking relief under Fla.R.Civ.P. 1.540 based on
excusable neglect must prove their allegations via affidavit or sworn evidence;
unsworn assertions are inadequate. See Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla.
2d DCA 2004) (reversing order granting 1.540 motion where excusable neglect not
14
proven by affidavit); Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd.,
636 So. 2d 838, 841 (Fla. 2d DCA 1994) (“In closing, we again remind counsel that
an unsworn motion filed under rule 1.540(b) that is not supported by evidence at a
hearing is insufficient to justify the setting aside of a final judgment valid on its face,
thereby overturning vested interests.”).
Wilmington attempted to establish the requisite excusable neglect via an
affidavit signed by Mr. Loll, an employee of Nationstar. This effort was fatally
flawed in two ways.
First, established Florida law required Citibank (the party alleged to have
acted with excusable neglect) to present an affidavit from its own officer or
employee, as opposed to that of a third-party agent. In the words of the Third
District:
It is apparent from the record that the defendant, The Club, Inc.,
filed no affidavit on its own behalf by any officer or agent seeking to
justify its failure to respond to plaintiff's complaint. The only affidavits
filed were by agents of the defendant's insurance company seeking to
justify that insurance company's failure to take action to respond to the
complaint.
We find merit in appellant's contention that the affidavits in
support of defendant's motion were legally inadequate to support the
motion to set aside the default. As we said in Winky’s, Inc. v. Francis,
229 So. 2d 903, ‘Before a trial judge may vacate a default, a corporate
defendant must allege and prove excusable neglect of an officer or
agent.’ Since neither affidavit or other proof appear in the record to
show excusable neglect by an officer or agent of the defendant nor was
15
it made to appear that the defendant had a meritorious defense, the
motion should have been denied. Chaney v. Headley, 90 So. 2d 297.
Scherer v. The Club, Inc., 328 So. 2d 532, 533 (Fla. 3d DCA 1976).
Citibank failed to show it acted with the requisite excusable neglect via an
affidavit from its own employee/agent. The affidavit of Mr. Loll, an employee of
Nationstar, was simply not adequate.4 See Scherer. As a result, the lower court erred
by granting the Second Amended Motion to Vacate.
Second, even if an affidavit from a Nationstar employee could show excusable
neglect by Citibank as a matter of law, Mr. Loll’s affidavit does not do so as a matter
of fact. To wit, Mr. Loll’s affidavit contained inadmissible hearsay and did not
reflect Mr. Loll had the requisite personal knowledge to testify about Mr. Gaff’s
actions. After all, Mr. Loll’s affidavit did not indicate: (i) he was ever an employee
of Citibank or otherwise worked for that company; (ii) he was familiar with
Citibank’s procedures, including those upon being served with process; (iii) he was
familiar with the accuracy of Citibank’s business records; (iv) he ever worked at (or
even set foot in) the Citibank branch office in Palm Beach where Mr. Gaff was the
“branch manager”; (v) he ever worked with Mr. Gaff; or (vi) he ever spoke to Mr.
4 Even if Wilmington had been authorized to prosecute the Second Amended
Motion to Vacate, see Issue III, infra, the affidavit from Mr. Loll was still inadequate
for this same reason.
16
Gaff about the situation at bar. App. 14. Moreover, though the affidavit reflected it
was based on Mr. Loll’s review of business records, no such business records were
attached to the affidavit.5 6
The First District’s recent decision in Clay County Land Trust v. JP Morgan
Chase Bank, N.A. is on point. ___ So. 3d ___ (Fla. 1st DCA 2014). There, a witness
attempted to testify by affidavit regarding the business practices of a company for
whom she was not employed. The lower court allowed that testimony and granted
summary judgment, but the First District reversed because the affidavit was
inadmissible:
As to its final claim, appellant asserts the trial court erred in entering
summary judgment based on the affidavit of Theresa Klingelhofer,
appellee's vice-president who relied in part on business records from
the prior owner of the note, EMC Mortgage Corporation, to determine
5 Where an affiant testifies at summary judgment based on business records,
those documents must be attached to the affidavit, lest that affidavit be inadmissible.
See Fla.R.Civ.P. 1.510; Coleman v. Grandma’s Place, Inc., 63 So. 3d 929, 932-33
(Fla. 4th DCA 2011). Likewise, where a witness testifies at trial based on the content
of business records, that testimony is not admissible unless those records are first
admitted into evidence. See Sas v. Fed. Nat’l Mortg. Assn., 112 So. 3d 778 (Fla. 2d
DCA 2013). In this same vein, Mr. Loll’s testimony based on his review of
unspecified business records (of a company for whom he was not even employed)
was inadmissible to prove anything where those records were not attached to his
affidavit. 6 It would be hard to imagine what type of business record could exist on the
facts at bar. After all, would Citibank have a document reflecting Mr. Gaff’s alleged
failure to forward the Summons and Complaint to its litigation department? If that
document exists, it should have been attached to Mr. Loll’s affidavit, see n.5, and if
it does not exist, then that is all the more reason his affidavit is inadmissible.
17
the amount owed on the note. We agree with appellee that this affidavit
contained inadmissible hearsay in the absence of any showing that
Klingelhofer was familiar with the business practices of EMC
Mortgage Corporation or the accuracy of its records. See Burdeshaw
v. Bank of N.Y. Mellon, 148 So. 3d 819 (Fla. 1st DCA 2014) (holding
that computer printouts showing the fees, expenses, and balance due on
the note and mortgage were not admissible under the business records
exception to the hearsay rule where the printout was not authenticated
by a records custodian or a person with specific knowledge of the debt
or the transaction of the information between the original lender and
subsequent servicers); Hunter, 137 So. 3d at 573 (holding that a loan
services employee, through whom computer-generated documents of
the original mortgage holder were offered, lacked personal knowledge
of the record-keeping procedures required for admission of the
documents in the foreclosure action under the business records
exception to the hearsay rule).
Id.
If Wilmington wanted to show Citibank acted with excusable neglect, it
should have subpoenaed Mr. Gaff and obtained his testimony.7 Alternatively, it
should have presented some admissible evidence from Citibank to show what Mr.
Gaff did with the Summons and Complaint after receipt of same. Having failed to
do either, Wilmington failed to show Citibank acted with excusable neglect. Quite
simply, the affidavit of Mr. Loll did not suffice.
Mr. Loll’s affidavit was likewise insufficient to support Wilmington’s
7 Apparently, Mr. Gaff’s employment with Citibank terminated after accepting
service in this case. Nonetheless, that does not change the legal requirements for
proving excusable neglect.
18
argument regarding service of process.
The Verified Return of Service filed by Jacaranda was regular on its face. As
such, Citibank bore the burden of proving the insufficiency of such service by clear
and convincing evidence. See Cordova v. Jolcover, 942 So. 2d 1045 (Fla. 2d DCA
2006).
Wilmington failed to meet this heavy burden. After all, Jacaranda was clearly
authorized to effectuate service on Citibank via personal service on its Vice
President. See Fla. Stat. 48.081. Though Wilmington argued Mr. Gaff was merely
a “branch manager” for Citibank, nothing in Mr. Loll’s affidavit proved (or even
asserted) that Mr. Gaff was not also a Vice President of Citibank. App. 14. Hence,
Wilmington failed to disprove the Return of Service by clear and convincing
evidence, and the lower court reversibly erred by ruling otherwise. See Richardson
v. Albury, 505 So. 2d 521 (Fla. 2d DCA 1987).
Even if Mr. Loll had denied Mr. Gaff was the Vice President of Citibank, it
would still have been insufficient for Wilmington to carry its burden. After all, Mr.
Loll’s own affidavit admitted Mr. Gaff was a “branch manager” of Citibank and was
personally served with the Summons and Complaint, making service of process upon
him authorized under Fla. Stat. 48.081(3) where the superior officers in subsections
1 and 2 are absent. See id. As the Return of Service was regular on its face, it was
19
Wilmington’s burden to show these officers were present and that the process server
should not have resorted to service on an employee. See id. Mr. Loll’s affidavit
plainly failed in this regard and was hence insufficient to refute the Verified Return
of Service. See id.
Finally, Mr. Loll’s affidavit cannot carry the day because it did not set forth
“clear and convincing” evidence. In fact, the affidavit suffered the same infirmities
vis a vis service of process as it did regarding excusable neglect. In particular, Mr.
Loll’s affidavit did not reflect: (i) he was ever an employee of Citibank or otherwise
worked for that company; (ii) he was familiar with Citibank’s procedures, including
those upon being served with process; (iii) he was familiar with the accuracy of
Citibank’s business records; (iv) he ever worked at (or even set foot in) the Citibank
branch office in Palm Beach where Mr. Gaff was the “branch manager”; (v) he ever
worked with Mr. Gaff; or (vi) he ever spoke to Mr. Gaff about the situation at bar.
App. 14. Moreover, though the affidavit reflected it was based on Mr. Loll’s review
of business records, no such business records were attached to the affidavit. See n.4,
n.5, and Clay County, supra.
Without these basic facts, and without any business records upon which to
rely, Mr. Loll’s testimony was insufficient to disprove the Verified Return of
Service, much less do so by clear and convincing evidence. Under the standard set
20
forth in Clay County, Wilmington set forth no admissible evidence, much less “clear
and convincing” evidence sufficient to quash service.
In light hereof, this Court should reverse the Order at bar and remand with
instructions to reinstate the Final Judgment.
III. THE LOWER COURT ERRED BY GRANTING 1.540 RELIEF ON
BEHALF OF WILMINGTON, A NON-PARTY.
Wilmington was not a party below and neither intervened nor substituted.
Nonetheless, and despite contemporaneous objection from Jacaranda, the lower
court granted 1.540 relief on its behalf, vacating the Final Judgment. Under the plain
language of Fla.R.Civ.P. 1.540, that ruling requires reversal.
“Under [Rule 1.540], only parties or their representatives have standing to
seek relief from judgment. A non party with no interest in the case cannot challenge
a judgment.” SR Acquisitions-Florida City, LLC v. San Remo Homes at Florida
City, LLC, 78 So. 3d 636, 638 (Fla. 3d DCA 2011) (citing Salomon v. Taylor, 30
So. 48 (Fla. 1905); Jaffer v. Miami Beach Redev. Agency, 392 So. 2d 1305 (Fla.
1980)). In so ruling, the Third District explained:
SR Acquisitions is entitled to mandamus because it has a clear legal
right to have the trial court rule on the pending motion, and no
other relief can address a non party's improper interference with the
case's progress. By withholding its ruling, the trial court has allowed
a non party, Dinuro, to stall the sale, even though Dinuro has no direct
interest in the case and no standing upon which to seek relief from
judgment. Dinuro is neither one of the parties to the case, since only SR
21
Acquisitions and San Remo are parties, nor a party's representative, as
Dinuro was outvoted by its co-members and cannot act on behalf of San
Remo
SR Acquisitions, 78 So. 3d at 638.
The facts at bar are materially indistinguishable. Wilmington was not a party
below nor a representative of Citibank. As such, having failed to substitute or
intervene, relief on Wilmington’s behalf was simply not authorized.
Wilmington may contend otherwise by pointing to the Limited Power of
Attorney attached to Mr. Loll’s affidavit. Any such argument would be unavailing.
After all, the issue here is not whether Wilmington would have had a basis to
substitute or intervene if it had filed such a motion. Rather, the question is whether
Wilmington was entitled to relief under Fla.R.Civ.P. 1.540. As it is neither a party
nor a legal representative of a party, it plainly was not. The lower court erred in
ruling otherwise. See id.
Typically, the undersigned would not cite circuit court Orders in a brief of this
type. The fact pattern at bar, however, is relatively unusual, so few published
decisions exist. Hence, the undersigned finds it appropriate to cite two Orders from
circuit court judges on the same fact pattern as that which the lower court ruled
herein (i.e. a motion seeking 1.540 relief by a non-party alleged to be a successor of
the defendant). See Notice of Authority, 1. As those Orders reflect, 1.540 relief
22
should not have been authorized for Wilmington where it had not intervened or
substituted. This Court should follow those opinions and conclude the lower court
erred by ruling otherwise.
In light hereof, and for this reason alone, this Court should reverse the Order
at bar and remand with instructions to reinstate the Final Judgment.
CONCLUSION
In light of the foregoing, this Court should reverse the Order on review and
remand with instructions to reinstate the Final Judgment.
23
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via electronic mail to Matthew McGuance, Esq., Wargo & French, LLP at
[email protected]; [email protected]; 201 S. Biscayne
Blvd., Suite 1000, Miami, FL 33131 and via regular mail to Richard and Mary
Campanaro, 1031 S. First Street, Unit 1407, Jacksonville Beach, FL 32250 on this
29th day of January, 2015.
/s/ Mark P. Stopa, Esq.
Mark P. Stopa, Esquire
FBN: 550507
STOPA LAW FIRM
447 Third Ave. N., Suite 405
St. Petersburg, FL 33701
Telephone: (727) 851-9551
ATTORNEY FOR APPELLANT
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the instant Initial Brief complies with the font
requirements of Fla.R.App.P. 9.210(a).
/s/ Mark P. Stopa, Esquire
Mark P. Stopa, Esquire