Civil Procedure – Orders of Dismissal contrasted with Final Judgments and Decrees
Written by Emil Fleysher | March 14, 2016 | Foreclosure
In this Third District Court of Appeals case, the bank’s foreclosure lawsuit against the borrower was set for trial. The bank never received notice of the trial, so the bank’s foreclosure action was dismissed by order of the court when the bank did not appear for the trial. More than two years later, the bank filed a motion to set aside the court’s dismissal of its foreclosure lawsuit, which was granted, and the bank then obtained a final judgment of foreclosure against the borrower.
The borrower then filed a motion to vacate the court’s order setting aside the dismissal of the plaintiff’s foreclosure lawsuit and all orders entered thereafter. The trial court denied that motion, encouraging this appeal.
The appellate court agreed with the borrower’s dispute because 1) upon the dismissal of the action, which is a final order, the trial court was without authority to vacate the initial dismissal order more than two years later; 2) an order of dismissal is not a final judgment or decree under Rule 1.540(b)(4) of the Florida Rules of Civil Procedure; and 3) because the order of dismissal was not a final judgment, the bank must have moved to set aside the order of dismissal within a year of its entry, not more than two years later.
So in inclusion, because of the terminology of the Florida Rules of Civil Procedure, an “order”, no matter if it is a final appealable order, is not a “judgment”, and thus cannot be argued more than a year after entry of the order. Because of this, the plaintiff’s foreclosure lawsuit must be dismissed as initially ordered.
De La Osa v. Wells Fargo Bank, N.A.
Third District Court of Appeals
Opinion issued February 10, 2016 (3D14-1455)
41 Fla. L. Weekly D382b
2016 WL 517466
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