FLORIDA APPELLATE COURT FINDS APPEAL UNTIMELY & BORROWER’S SUCCESSIVE POST-JUDGMENT MOTIONS IMPROPER
Diaz Anselmo & Associates celebrated another big win last month when Florida’s Second DCA affirmed US Bank’s final judgment of foreclosure entered against borrower, Thomas Ortiz, as well as several lower court orders which denied Ortiz’s request for post-judgment relief. Ortiz v. U.S. Bank Tr. Nat’l Ass’n, No. 2D22-3281, 2024 WL 3837333 (Fla. 2d DCA Aug. 16, 2024). Ortiz was a straightforward foreclosure: Ortiz executed the note and mortgage in November 2007, defaulted by failing to make his May 2013 payment, and was served via publication with the bank’s foreclosure complaint in October 2019.[i]
US Bank obtained a judgment of foreclosure (Final Judgment) in June 2022.[ii] In July 2022 Ortiz filed his first post-judgment motion to vacate the Final Judgment asserting improper service of process, fraud, misrepresentation, and misconduct by US Bank. The court denied Ortiz’s motion to vacate finding it baseless “in law and fact” in August 2022. Instead of appealing that order, Ortiz moved to vacate the Final Judgment a second time, moved in the alternative for reconsideration, and filed a separate motion seeking to quash service of process. Both motions raised the same or substantively similar grounds for relief as Ortiz’s first motion to vacate.
The court conducted an evidentiary hearing on Ortiz’s post-judgment motions where the court considered documentary evidence and witness testimony. Thereafter, the court denied all motions via an order entered September 2, 2022. On October 3, 2022, Ortiz appealed the denial of his first and second motions to vacate and/or for reconsideration, the denial of his motion to quash, and the Final Judgment.
The Second DCA dismissed the appeal of the Final Judgment and order denying Ortiz’s first motion to vacate as untimely since the appeal of those orders was filed more than thirty days after rendition of those orders in violation of Fla. R. App. P. 9.110(b). As to the other post-judgment motions, the Court noted its review was limited because Ortiz failed to provide a transcript of the evidentiary hearing on his second motion to vacate and motion to quash service of process.[iii] The Court concluded Ortiz failed to demonstrate the trial court committed any reversible error.
Lastly, the Court agreed with US Bank’s argument that Ortiz’s second motion to vacate and his motion to quash service of process were prohibited since they were successive and clearly an attempt to relitigate issues which Ortiz had previously raised and which the trial court had previously ruled upon. The Court rejected Ortiz’s argument that his second motion to vacate was not successive because his first motion was denied on non-substantive grounds.[iv] Distinguishing Minda v. Minda, 190 So. 3d 1126, 1127 (Fla. 4th DCA 1987), relied upon by Ortiz on appeal, the court explained the motion in Minda was denied as “facially insufficient” and not on the merits. The Court reiterated Ortiz’s motion to vacate was denied on the merits.
The Court concluded, if Ortiz was “dissatisfied with the trial court’s ruling on his first motion to vacate, his remedy was by appeal and not by filing a successive motion to vacation or an unauthorized motion for reconsideration.” The Court affirmed US Bank’s Final Judgment and affirmed the omnibus order which denied all of Ortiz’s post-judgment motions.
[i] These basic facts were not included in the opinion; however, this information is known to the author since our firm handled both the lower court and appellate court cases pertaining to this loan.
[ii] Ortiz, at *1. Citations to and quotations from this case are to this citation until indicated otherwise. Notably, Ortiz did not appeal the Final Judgment within thirty days of its rendition.
[iii] Ortiz, at *2. Citations to and quotations from this case are to this citation unless indicated otherwise.
[iv] Ortiz, at *2 (citing Minda, 190 So. 3d at 1127).
