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Vacating a Foreclosure Judgment for Lack of Notice
Posted on November 21, 2011 by Mark Stopa
http://www.stayinmyhome.com/blog/2011/11/vacating-a-foreclosure-judgment-for-lack-of-notice/
I had a case today where the fact-pattern may seem unique, but I suspect it’s not. My client hired an attorney to represent her in a foreclosure case. For whatever reason, the lawyer withdrew as counsel. Thereafter, the bank procured a Final Judgment of Foreclosure.

Here was the problem. Fla.R.Jud.Admin. 2.505(f) sets forth the procedure that must be followed when an attorney withdraws. Essentially, the lawyer must file a motion to withdraw and certify service of a copy of the motion, as well as the Notice of Hearing on the motion, to his/her client. That way, the client knows the attorney is withdrawing as counsel and can make other arrangements to defend the case.

In my case, my client resided in Great Britain, but the address her prior attorney provided upon his withdrawal was the address of the property – in St. Petersburg. Hence, my client did not have notice of her attorney’s withdrawal or the summary judgment hearing that ensued, as those papers were sent to an address where she did not live.

Here’s the cool part. Established case law provides that since my client did not receive notice of the withdrawal of her counsel or the subsequent summary judgment hearing, the Final Judgment of Foreclosure must be vacated. See Coldiron v. Seminole County Sheriff’s Dept., 974 So. 2d 1199 (Fla. 5th DCA 2008) (reversing an order denying a 1.540 motion where appellant never received notice of the summary judgment hearing after her lawyer withdrew and the order permitting withdrawal did not contain appellant’s correct address); Saenz v. Pena, 754 So. 2d 826 (Fla. 3d DCA 2000) (“because the motion to withdraw was filed without notice to Saenz, in violation of the mandatory notice requirements of rule 2.060(j), Florida Rules of Judicial Administration [now Rule 2.505], the motion to set aside judgment should have been granted.”); Polani v. Payne, 654 So. 2d 202 (Fla. 4th DCA 1995) (requiring final judgment be vacated where appellants lived in a foreign country and their prior attorney did not provide correct address upon his withdrawal).

The logical argument in response to this is to assert the defendant failed to monitor the status of the case or waited too long to file the motion. However, the Polani court specifically rejected such arguments, finding the Final Judgment was void given the lack of notice.

As such, I filed this Motion to Vacate Final Judgment. http://www.stayinmyhome.com/blog/wp-content/uploads/2011/11/Motion-to-Vacate-FJ1.pdf Today, the Court granted that motion at an emergency hearing.

What’s notable about this issue? For me, it’s another reminder that homeowners facing foreclosure are entitled to due process. If your prior lawyer withdrew, you didn’t receive notice, and you thereafter lost the case, you may be able to get the foreclosure judgment vacated.

In fact, I’ll take it one step further. Because any Order entered without notice is “void,” per Polani, the homeowner would be entitled to ownership/possession of the home (and an Order vacating a Final Judgment of Foreclosure) even if the home had been sold to a third party purchaser. That would certainly be my argument, anyway.

Mark Stopa Esq.

http://www.stayinmyhome.com

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3 Responses

  1. In the event of a denial of relief by the BK judge, what is the difference between appealing to the Bankruptcy Appeals Panel versus the Dist.
    Court. The prevailing party has requested a Federal District Court review of the facts and conclusions of law, alleging all the issues are non-core. However, the issue of declaratory relief and validity and priority of the lies are “core” issues that were also decided in the banks favor. Please respond with the best course of action under these circumstances. I am not requesting legal advise but merely an opinion. Thank you WRP

  2. Gotta say, California is another animal. As a pro se I had to dress down a judge for weighing facts to arrive at a requirement of tender in a motion for demurrer. In doing so the judge ruled that a contract exists, an amount is owing, and a beneficiary is defined to receive the tender. As an adherent to this site, I was careful to object to everything, and contest each of those three issues. Then I reminded the judge that it is not appropriate to make factual decisions in demurrer considerations (except presence or lack of facts), and that issues of law (standing of beneficiary) need to be decided before issues of equity (need for tender). Unfortunately, the judge then stood behind the tentative ruling anyway.

  3. Legal Question: The chapter 13 bar date is long past. A BPO was filed with the petition 18 months ago. The plan (which is still not approved) does not include any payments on a 2nd mortgage.Now about 10 days before a confirmation plan hearing, the 2nd lender wants to do an appraisal. They still have not filed a proof of claim.What is case law on this issue?

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