Preview
Filing # 194292005 E-Filed 03/19/2024 08:08:34 AM
IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2021-019526-CA-01
CITIMORTGAGE, INC.
Plaintiff,
vs.
NICOLE AMISIAL A/K/A NICOLE
L. AMISIAL, et al.,
Defendants.
_________________________________________________/
PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S EMERGENCY
VERIFIED MOTION TO VACATE FINAL JUDGMENT DATED FEBRUARY 20, 2024
The Plaintiff, CITIMORTGAGE, INC., by and through its undersigned attorney, files its
Response to Defendant’s, NICOLE AMISIAL A/K/A NICOLE L. AMISIAL, Emergency
Verified Motion to Vacate Final Judgment Dated February 20, 2024, and in support thereof states
as follows:
BACKGROUND
1. Plaintiff filed the instant foreclosure action on August 19, 2021, alleging a default
date on April 27, 2013.
2. The Court held a non-jury trial on February 20, 2024 and after testimony and
evidence presented by Plaintiff, and extensive questioning by Defendant of Plaintiff’s witness,
the Court entered judgment for Plaintiff, setting a sale date on April 8, 2024.
3. Defendant filed her Verified Motion to Vacate Final Judgment on March 4, 2024.
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LEGAL STANDARD
Florida Rules of Civil Procedure Rule 1.540 is the procedure for vacating a Final
Judgment which provides the following possible causes for vacating a Final Judgment:
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record
and errors therein arising from oversight or omission may be corrected by the court at any
time on its own initiative or on the motion of any party and after such notice, if any, as the
court orders. During the pendency of an appeal such mistakes may be so corrected before
the record on appeal is docketed in the appellate court, and thereafter while the appeal is
pending may be so corrected with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud;
etc. On motion and upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, decree, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree
is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a
prior judgment or decree upon which it is based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment or decree should have prospective application.
The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not
more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A
motion under this subdivision does not affect the finality of a judgment or decree or
suspend its operation. This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, decree, order, or proceeding or to
set aside a judgment or decree for fraud upon the court.
Once a final judgment has been entered, a court’s jurisdiction to revisit that final
judgment is limited. See Bank of New York Mellon v. Peterson, 208 So. 3d 1218, 1221-1222 (Fla.
2d DCA 2017). "[T]he one exception to the rule of absolute finality is rule 1.540, 'which gives
20-009186 - CaJ
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the court jurisdiction to relieve a party from the act of finality in a narrow range of
circumstances.'" Id. (quoting Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986)). If a
party is seeking relief under Florida Rule of Civil Procedure 1.540, "[t]he moving party must
produce sufficient evidence of mistake, accident, excusable neglect or surprise as contemplated
by rule 1.540(b) before the court's equity jurisdiction may be invoked." Rude v. Golden Crown
Land Dev. Corp., 521 So. 2d 351, 353 (Fla. 2d DCA 1988). (Emphasis added). If the moving
party fails to present evidence supporting a legal ground for relief from the judgment, it is an
abuse of the trial court's discretion to vacate the judgment. See Lee v. Chung, 528 So. 2d 1313,
1315-1316 (Fla. 2d DCA 1988).
A void judgment is narrowly defined under Florida law as a judgment in which the Trial
Court did not have either personal or subject matter jurisdiction. Condo. Ass'n of La Mer Estates
v. Bank of N.Y. Mellon Corp., 137 So. 3d 396, 399 (Fla. 4th DCA 1999). The void judgment rule
cannot be used to overturn a judgment where the parties simply overlooked a legal argument they
could have made at trial or on a direct appeal, even if that legal argument has merit. Phenion
Dev. Group, Inc. v. Love, 940 So. 2d 1179, 1184 (Fla. 5th DCA 2006). The arguments raised by
the Defendant in the Motion to Vacate Final Judgment were previously raised at Trial and
therefore, the Motion to Vacate is procedurally improper.
ARGUMENT
As an initial matter, Defendant failed to present the Court with any transcript of the trial
held on February 20, 2024. A trial court on a motion for rehearing “cannot properly resolve the
underlying factual issues so as to conclude that the trial court’s judgment is not supported by the
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evidence of by an alternative theory, without a record of the trial proceedings.” Miami-Dade Cty.,
v. Clarke, 778 So.2d 451-452 (Fla 3rd DCA 2001) (citing Applegate v. Barnett Bank of
Tallahassee, 377 So.2d 1150, 1153 (Fla. 1979). The failure to attach or file the trial transcript,
standing alone, warrants denial of the Motion.
Moreover, the arguments that Defendant makes does not meet any of the requirements of
Rule 1.540. Her arguments are exactly the same arguments made at trial. Defendant is
attempting to reargue that the subject loan was discharged in Federal Bankruptcy Court in 2011.
However, the discharge does not mean that Plaintiff cannot enforce its’ loan against Defendant or
proceed forward with foreclosure or alleviate the Defendant’s obligation to make her mortgage
payments. Additionally, Defendant asserted at trial that there was a prior action, but that is not
relevant to the case at hand. At trial, Plaintiff presented evidence and testimony that Defendant
made payments on a loan modification offer, and the prior action was ultimately dismissed, but
later Defendant stopped making payments so that the loan modification was never completed.
Consequently, Plaintiff filed this instant foreclosure action in 2021. Ultimately, the Court
addressed all the issues raised in Defendant’s Motion to Vacate Final Judgment and found that
Plaintiff had proven all elements of foreclosure, including standing, default, and amounts due and
owing. Therefore, the Motion to Vacate Final Judgment is without any legal merit.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order
denying Defendant's Emergency Verified Motion to Vacate Final Judgment Dated February 20,
2024, and for any other further relief this court deems just and proper.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
the parties listed on the attached service list via Mail and/or E-mail in accordance with the
corresponding addresses listed therein on this 18th day of March, 2024.
ROBERTSON, ANSCHUTZ, SCHNEID, CRANE
& PARTNERS, PLLC
Attorney for Plaintiff
6409 Congress Ave., Suite 100
Boca Raton, FL 33487
Telephone: 561-241-6901
Facsimile: 561-997-6909
Service Email: flmail@raslg.com
By: _\S\ Kim Stevens_
Kim Stevens, Esquire
Florida Bar No. 0543136
Communication Email: kstevens@raslg.com
SERVICE LIST
NICOLE AMISIAL A/K/A NICOLE L. AMISIAL
14585 SW 123RD AVE
MIAMI, FL 33186-7491
PRIMARY EMAIL: AMISIAL40@GMAIL.COM
UNKNOWN SPOUSE OF NICOLE AMISIAL A/K/A NICOLE L. AMISIAL
14585 SW 123RD AVE
MIAMI, FL 33186
DEERWOOD HOMEOWNERS ASSOCIATION, INC.
C/O JURADO LAW GROUP, PA
6401 NW 74 AVENUE
MIAMI, FL 33166
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REINALDO CASTELLANOS, P.A.
REINALDO CASTELLANOS, ESQ.
ATTORNEY FOR VILLAS OF DEERWOOD HOMEOWNERS' ASSOCIATION, INC.
9960 BIRD ROAD
MIAMI, FL 33165
PRIMARY EMAIL: COURTDOCS@CASTELLANOSLAW.COM
REINALDO CASTELLANOS, P.A.
REINALDO CASTELLANOS, ESQ.
ATTORNEY FOR COURTYARDS AT DEERWOOD ASSOCIATION, INC.
9960 BIRD ROAD
MIAMI, FL 33165
PRIMARY EMAIL: COURTDOCS@CASTELLANOSLAW.COM
SECONDARY EMAIL: REY@CASTELLANOSLAW.COM
By: _\S\ Kim Stevens_
Kim Stevens, Esquire
Florida Bar No. 0543136
20-009186 - CaJ
PAGE 6
Preview
Filing # 194292005 E-Filed 03/19/2024 08:08:34 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 2021-019526-CA-01 CITIMORTGAGE, INC. Plaintiff, vs. NICOLE AMISIAL A/K/A NICOLE L. AMISIAL, et al., Defendants. _________________________________________________/ PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S EMERGENCY VERIFIED MOTION TO VACATE FINAL JUDGMENT DATED FEBRUARY 20, 2024 The Plaintiff, CITIMORTGAGE, INC., by and through its undersigned attorney, files its Response to Defendant’s, NICOLE AMISIAL A/K/A NICOLE L. AMISIAL, Emergency Verified Motion to Vacate Final Judgment Dated February 20, 2024, and in support thereof states as follows: BACKGROUND 1. Plaintiff filed the instant foreclosure action on August 19, 2021, alleging a default date on April 27, 2013. 2. The Court held a non-jury trial on February 20, 2024 and after testimony and evidence presented by Plaintiff, and extensive questioning by Defendant of Plaintiff’s witness, the Court entered judgment for Plaintiff, setting a sale date on April 8, 2024. 3. Defendant filed her Verified Motion to Vacate Final Judgment on March 4, 2024. 20-009186 - CaJ PAGE 1 LEGAL STANDARD Florida Rules of Civil Procedure Rule 1.540 is the procedure for vacating a Final Judgment which provides the following possible causes for vacating a Final Judgment: (a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court. Once a final judgment has been entered, a court’s jurisdiction to revisit that final judgment is limited. See Bank of New York Mellon v. Peterson, 208 So. 3d 1218, 1221-1222 (Fla. 2d DCA 2017). "[T]he one exception to the rule of absolute finality is rule 1.540, 'which gives 20-009186 - CaJ PAGE 2 the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.'" Id. (quoting Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986)). If a party is seeking relief under Florida Rule of Civil Procedure 1.540, "[t]he moving party must produce sufficient evidence of mistake, accident, excusable neglect or surprise as contemplated by rule 1.540(b) before the court's equity jurisdiction may be invoked." Rude v. Golden Crown Land Dev. Corp., 521 So. 2d 351, 353 (Fla. 2d DCA 1988). (Emphasis added). If the moving party fails to present evidence supporting a legal ground for relief from the judgment, it is an abuse of the trial court's discretion to vacate the judgment. See Lee v. Chung, 528 So. 2d 1313, 1315-1316 (Fla. 2d DCA 1988). A void judgment is narrowly defined under Florida law as a judgment in which the Trial Court did not have either personal or subject matter jurisdiction. Condo. Ass'n of La Mer Estates v. Bank of N.Y. Mellon Corp., 137 So. 3d 396, 399 (Fla. 4th DCA 1999). The void judgment rule cannot be used to overturn a judgment where the parties simply overlooked a legal argument they could have made at trial or on a direct appeal, even if that legal argument has merit. Phenion Dev. Group, Inc. v. Love, 940 So. 2d 1179, 1184 (Fla. 5th DCA 2006). The arguments raised by the Defendant in the Motion to Vacate Final Judgment were previously raised at Trial and therefore, the Motion to Vacate is procedurally improper. ARGUMENT As an initial matter, Defendant failed to present the Court with any transcript of the trial held on February 20, 2024. A trial court on a motion for rehearing “cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the 20-009186 - CaJ PAGE 3 evidence of by an alternative theory, without a record of the trial proceedings.” Miami-Dade Cty., v. Clarke, 778 So.2d 451-452 (Fla 3rd DCA 2001) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1153 (Fla. 1979). The failure to attach or file the trial transcript, standing alone, warrants denial of the Motion. Moreover, the arguments that Defendant makes does not meet any of the requirements of Rule 1.540. Her arguments are exactly the same arguments made at trial. Defendant is attempting to reargue that the subject loan was discharged in Federal Bankruptcy Court in 2011. However, the discharge does not mean that Plaintiff cannot enforce its’ loan against Defendant or proceed forward with foreclosure or alleviate the Defendant’s obligation to make her mortgage payments. Additionally, Defendant asserted at trial that there was a prior action, but that is not relevant to the case at hand. At trial, Plaintiff presented evidence and testimony that Defendant made payments on a loan modification offer, and the prior action was ultimately dismissed, but later Defendant stopped making payments so that the loan modification was never completed. Consequently, Plaintiff filed this instant foreclosure action in 2021. Ultimately, the Court addressed all the issues raised in Defendant’s Motion to Vacate Final Judgment and found that Plaintiff had proven all elements of foreclosure, including standing, default, and amounts due and owing. Therefore, the Motion to Vacate Final Judgment is without any legal merit. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order denying Defendant's Emergency Verified Motion to Vacate Final Judgment Dated February 20, 2024, and for any other further relief this court deems just and proper. 20-009186 - CaJ PAGE 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the parties listed on the attached service list via Mail and/or E-mail in accordance with the corresponding addresses listed therein on this 18th day of March, 2024. ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC Attorney for Plaintiff 6409 Congress Ave., Suite 100 Boca Raton, FL 33487 Telephone: 561-241-6901 Facsimile: 561-997-6909 Service Email: flmail@raslg.com By: _\S\ Kim Stevens_ Kim Stevens, Esquire Florida Bar No. 0543136 Communication Email: kstevens@raslg.com SERVICE LIST NICOLE AMISIAL A/K/A NICOLE L. AMISIAL 14585 SW 123RD AVE MIAMI, FL 33186-7491 PRIMARY EMAIL: AMISIAL40@GMAIL.COM UNKNOWN SPOUSE OF NICOLE AMISIAL A/K/A NICOLE L. AMISIAL 14585 SW 123RD AVE MIAMI, FL 33186 DEERWOOD HOMEOWNERS ASSOCIATION, INC. C/O JURADO LAW GROUP, PA 6401 NW 74 AVENUE MIAMI, FL 33166 20-009186 - CaJ PAGE 5 REINALDO CASTELLANOS, P.A. REINALDO CASTELLANOS, ESQ. ATTORNEY FOR VILLAS OF DEERWOOD HOMEOWNERS' ASSOCIATION, INC. 9960 BIRD ROAD MIAMI, FL 33165 PRIMARY EMAIL: COURTDOCS@CASTELLANOSLAW.COM REINALDO CASTELLANOS, P.A. REINALDO CASTELLANOS, ESQ. ATTORNEY FOR COURTYARDS AT DEERWOOD ASSOCIATION, INC. 9960 BIRD ROAD MIAMI, FL 33165 PRIMARY EMAIL: COURTDOCS@CASTELLANOSLAW.COM SECONDARY EMAIL: REY@CASTELLANOSLAW.COM By: _\S\ Kim Stevens_ Kim Stevens, Esquire Florida Bar No. 0543136 20-009186 - CaJ PAGE 6