Final judgments in foreclosures are indeed final, the Third District Court of Appeal ruled Wednesday in two unrelated opinions.
In one case disbarred attorney Alec Ross of North Miami Beach objected to Miami-Dade Circuit Judge Michael Genden granting a Wells Fargo Bank motion to file a re-foreclosure action against condominium owner Zion Tarazi and to add Ross as a defendant. The Wells Fargo action came more than four months after it had obtained a final judgment of foreclosure against Tarazi.
The bank filed its original foreclosure complaint on March 21, 2008 and won judgment the following July 8. A certificate of sale gave Wells Fargo the title to Venture at Aventura East unit 1010 on Aug. 10, 2008. Two months later the bank transferred ownership to Freddie Mac, the Federal Home Loan Mortgage Corp.
Thereafter, the trial court entered, and later vacated, an order dismissing the re-foreclosure for lack of prosecution. Ross appealed Genden’s order, contending that he was without subject-matter jurisdiction.
"Generally, a trial court loses jurisdiction upon the rendition of a final judgment and expiration of the time allotted for altering, modifying or vacating the judgment," Third District Judge Kevin Emas wrote in an opinion joined by Chief Judge Linda Ann Wells and Judge Angel Cortiñas.
The panel decided the Dec. 3, 2008, order granting Wells Fargo’s motion for leave to file a supplemental complaint to add Ross as a party, the order dismissing the re-foreclosure for lack of prosecution and the subsequent order vacating that dismissal "are each a nullity."
Shawn Horwick, associate at Ritter Chusid in Coral Springs, who represented Ross with firm partner Gregory Ritter, did not return a call for comment by deadline.
Carlton Fields shareholder Dean Morande in West Palm Beach, the attorney for Wells Fargo, also could not be reached.
Ross foreclosed against a commercial property Tarazi owned in Broward County in July 2007, and obtained a final judgment of $212,527 in damages on the unpaid note.
Tarazi’s wife quit-claimed the Venture at Aventura East condo, which she owned, to Tarazi on Dec. 20, 2007. Instead of writing up a mortgage and paying documentary stamps and fees, Ross and Tarazi agreed to secure the collateral this way because the recorded certified final judgment would be an enforceable lien on the property.
But Wells Fargo did not name Ross as a party or defendant in its foreclosure action. Ross in turn filed a lien foreclosure complaint against the bank to foreclose his judgment lien on the condo. Wells Fargo never responded to the complaint, and the Miami-Dade Clerk of Circuit Court defaulted the bank Feb. 11, 2009. Ross mailed the bank a copy of his motion for default final judgment and the notice of hearing.
Wells Fargo again did not respond.
After more legal maneuvering Ross obtained a $205,671 default award against the bank.
In the other Third District case Wednesday a slightly different panel said Miami-Dade Circuit Judge Lester Langer abused his discretion by granting a homeowner’s motions to vacate a default and default final judgment and the subsequent sale of her Miami Shores house.
Yale Mortgage Corp. filed a foreclosure complaint against Dieula Blot on Aug. 22, 2011. The complaint was served on Aug. 26 and never answered. In October 2011 the trial court entered a default against Blot. Circuit Judge John Thornton entered a final judgment of foreclosure against Blot on Jan. 12, 2012. The property was sold last May. Shortly thereafter, Blot filed her motions.
But Blot "failed to show any excusable neglect for not answering the complaint," Cortiñas wrote, joined by Wells and Judge Thomas Logue.
Blot hired her attorney 70 days after Yale Mortgage served its complaint and more than two weeks after the default was entered. Blot did not provide an explanation for why she failed to respond in a timely fashion, Cortiñas said in ordering the trial court to reinstate the final judgment of foreclosure and the judicial sale.
"We’re thrilled about the ruling and feel it was appropriate," said the mortgage company’s lawyer, Weitz & Schwartz associate Sarah Weitz in Fort Lauderdale, said. "The record was devoid of any evidence of excusable neglect."
On Blot’s side, Daniel Poterek, an associate of the Burton Firm in Aventura, deferred questions to firm founder Richard J. Burton, who did not respond by deadline.