Saturday, February 7, 2015

FYI: Fla App Ct (4th DCA) Reverses Trial Court's Ruling Allowing Mortgagee to Correct Foreclosure w/ Wrong Legal Description

The District Court of Appeals of the State of Florida, Fourth District, recently concluded that a final summary judgment of foreclosure that had been entered with the incorrect legal description was a “voidable,” not “void” judgment and, as a result, was subject to the one year time limit for motions to vacate the judgment. 


The Appellate Court further held that, because the mortgagee filed its motion to vacate the judgment more than three years after it was entered, the trial court erred in granting the mortgagee’s motion to vacate. 


A copy of the Court’s opinion is available at:


This case involves a mortgage containing an incorrect legal description of the property.  The mortgagee filed a foreclosure complaint and obtained a final summary judgment of foreclosure in December of 2009.  The foreclosure judgment entered contained the incorrect legal description for the property. 


In September, 2012, the mortgagee filed its first motion to vacate the final summary judgment, sale, and certificate of title pursuant to Florida Rule of Civil Procedure 1.540(b)(1).  The mortgagee alleged that, due to an inadvertent mistake, the legal description of the  property in the mortgage was incorrect and the mortgagee needed to amend the complaint to add a reformation count. 


The mortgagee also alleged that the incorrect legal description in the foreclosure judgment prevented the mortgagee from obtaining clear title to the property.  The trial court denied the mortgagee’s motion to vacate without prejudice.


In January, 2013, the mortgagee filed its second motion to vacate.  The second motion was filed pursuant to Florida Rule of Civil Procedure 1.540(b)(1) and rule 1.540(b)(4) on the grounds that the judgment was void. 


The mortgagee argued that the incorrect legal description was clouding title to the property owned by a third party.  The homeowner objected to the mortgagee’s second motion and argued that the trial court did not have jurisdiction to hear the motion because rule 1.540(b)(1) had a one year limit for vacating a judgment.  After a hearing on the motion, the trial court granted the bank’s motion.


On appeal, the District Court of Appeal identified the determining factor of whether the trial court had jurisdiction as whether the final judgment was “void” or “voidable.” 


Under rule 1.540(b), a “void” judgment can be attacked at any time, and a “voidable” judgment must be attacked within a year of its entry.  The Court then defined a “void” judgment as “one entered in the absence of the court’s jurisdiction over the subject matter or the person.”  Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA 2009). 


In contrast, according to the Court, a “voidable” judgment one that “has been entered based upon some error in procedure that allows a party to have the judgment vacated, but the judgment has legal force and effect unless and until it is vacated.”  Zitani v. Reed, 992 So. 2d 403, 409 (Fla. 2d DCA 2008).


The mortgagee argued that the judgment was void because “the owner of the property identified in the judgment was not made a party to the underlying case.”  The Court held that there were two problems with the mortgagee’s argument.  First, the Court held, there was no evidence in the record that there was an owner of the property described in the legal description other than the owner named in the complaint, or that the property described in the mortgage and judgment actually exists.


The second problem the Appellate Court found with the mortgagee’s argument is that even if the property described in the mortgage and judgment exists, and if there is an owner of that property other than the one named in the complaint, that owner was not the one challenging the final judgment.  Thus, the Court concluded, there were no due process issues as the mortgagee had argued.


The Court then referenced the holding from a prior District Court of Appeal opinion, although not cited by either party, as support for its conclusion that the mortgagee’s judgment was voidable, not void.  “When a mortgage contains an incorrect legal description, a court may correct the mistake before foreclosure.  If, however, the mistaken legal description is not corrected before final judgment and foreclosure, and the mistake is carried into the advertisement for sale and the foreclosure deed, a court cannot reform the mistake in the deed and judgment; rather the foreclosure process must begin anew.”  Lucas v. Barnett Bank of Lee Cnty., 705 So. 2d 115, 116 (Fla. 2d DCA 1998). 


Because the Appellate Court held that the mortgagee’s judgment was voidable, not void, the Court ruled the mortgagee’s motion to vacate was time-barred under rule 1.540(b). 





Ralph T. Wutscher
McGinnis Wutscher LLP
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