Garcia v. Navy Fed. Credit Union, No. 5D16-1350, 2017 WL 3442759 (5th DCA, 2017) is a consolidated appeal, in which Doncarlos and Anne Garcia appeal the trial court’s final judgement of foreclosure in favor of Navy Federal Credit Union. Additionally, the Garcias appeal the trial court’s denial of their motion to vacate the writ of possession issued to 56 Cottonwood Court Land Trust after the foreclosure sale.
A home equity line of credit agreement was executed by the Garcias in November 2003. The line of credit was secured by a second mortgage on their property which allowed them to borrow up to $75,000 from Navy Federal Credit Union. When the Garcias failed to make a payment on October 1, 2007 they defaulted. During a bench trial, the court entered a final judgement of foreclosure for Navy Federal Credit Union. In April 2016, the foreclosure sale took place. The Trust submitted the winning bid for $230,000. A writ of possession to the Trust was issued by the Flagler County Clerk in August. The Garcias then filed a verified emergency motion to vacate the writ of possession pursuant to Florida Rule of Civil Procedure 1.540(b), arguing, inter alia, that they did not receive proper notice of the foreclosure sale.
Rule 1.540(b) permits a party to move to vacate a “final judgment, decree, order, or proceeding” on several grounds. Fla. R. Civ. P. 1.540(b). The rule does not authorize a trial court to grant relief from a non-final order. Hialeah Hotel, Inc. v. Woods, 778 So.2d 314, 315 (Fla. 3d DCA 2000). Additionally, “[a]n order entered on a motion to vacate a non-final order, even where the motion mislabels the non-final order as final, is not reviewable under Florida Rule of Appellate Procedure 9.130(a)(5).” Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003); see also Hi–Tech Mktg. Group, Inc. v. Thiem, 659 So.2d 479, 479 (Fla. 4th DCA 1995)
The Third District Court addressed this precise issue in Bryant v. Wells Fargo Bank, N.A., 182 So.3d 927, 928 (Fla. 3d DCA 2016). Similar to this case, the borrowers in Bryant appealed both a final judgement of foreclosure and an order denying their rule 1.540(b) motion to quash the writ of possession in favor of the bank. The appellate court in the Bryant case found that the borrowers inappropriately utilized rule 1.540(b), and stated that “a motion to vacate pursuant to Rule 1.540(b) cannot be directed towards non-final orders such as the writ of possession.” Id. at 930. Furthermore, “even if the motion to vacate had been the proper procedural vehicle below,” it nonetheless lacked “jurisdiction to review the trial court’s denial of that motion because it does not fall within the purview of appealable, non-final orders set forth in [Florida Rule of Appellate Procedure] 9.130(a)(3).” Id.; accord Nacius v. One W. Bank, FSB, 211 So.3d 152, 153 (Fla. 4th DCA 2017)
Based on the analysis above, the court determined they lacked jurisdiction to consider the Garcias’ appeal of their denied rule 1.540(b) motion directed towards the non-final order granting a writ of possession to the Trust. Additionally, the court affirmed the final judgement of foreclosure and sua sponte dismissed the portion of the appeal concerning the writ of possession.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
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