Third District Court of Appeal

State of Florida 

Opinion filed February 23, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1557

Lower Tribunal No. 19-25195

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Bank of America, N.A.,

Petitioner,

vs.

Lazara A. Rodriguez,

Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Peter 

R. Lopez, Judge.

Liebler, Gonzalez & Portuondo, and Adam J. Wick and Alan M. Pierce, 

for petitioner.

Jacobs Legal, PLLC, and Bruce Jacobs, for respondent.

Before MILLER, LOBREE and BOKOR, JJ. 

PER CURIAM.
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Bank of America, N.A. petitions for a writ of prohibition or certiorari 

seeking to quash the trial court’s July 28, 2021 order to the extent it denied 

Bank of America’s motions to dismiss based on subject-matter jurisdiction 

and litigation privilege. 

In the underlying independent action giving rise to the instant petition, 

Rodriguez seeks to vacate a consent final judgment of foreclosure obtained 

in a previous foreclosure action. Instead of filing a motion in the foreclosure 

case within a year of judgment based on intrinsic fraud, as provided in Florida 

Rule of Civil Procedure 1.540, Rodriguez filed an independent action more 

than a year after final judgment alleging extrinsic fraud. After a review of the 

record, including the briefings of the parties,1 we conclude that despite 

Rodriguez’s characterization, the allegations constitute intrinsic fraud.

Therefore, “the trial court’s denial of the motion to dismiss on litigation 

privilege grounds constitutes irreparable harm as a matter of law.” Bank of 

N.Y. Mellon v. Abadia, 314 So. 3d 595, 596 (Fla. 3d DCA 2020) (citations 

omitted). 

1 Counsel for respondent failed to comply with the September 20, 2021, noon 

deadline for filing its response, instead filing its response at 6:23 p.m. 

However, counsel filed a motion to accept the response as timely filed, 

claiming inadvertence and mistake, which petitioner opposed. Upon 

consideration, we grant the motion to accept the response as timely filed and 

deny petitioner’s motion to strike.
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In the previous foreclosure action, the burden of proof as to each 

required element of foreclosure fell on the bank. Rodriguez had the right to 

make the bank introduce evidence, present witnesses subject to crossexamination, and prove its case before a finder of fact. She didn’t exercise

that right. Instead, Rodriguez entered into a stipulated final judgment. After 

nine years of litigation, she and the bank voluntarily agreed that she hadn’t 

paid her mortgage, that she owed money, and that she wouldn’t contest 

foreclosure. In return, the bank promised not to sell the house within ninety 

days from the stipulated final judgment and not to seek a deficiency judgment 

resulting from the sale. Despite the stipulated judgment, Rodriguez files the 

underlying action seeking to undo the benefit of her bargain, the stipulated 

final judgment of foreclosure, claiming that the judgment was procured by 

fraud. 

Because Rodriguez’s allegations constitute intrinsic fraud, rather than 

extrinsic fraud, the one-year bar under Florida Rule of Civil Procedure 1.540 

applies. Greenwich Ass’n, Inc. v. Greenwich Apts., Inc., 979 So. 2d 1116, 

1118–19 (Fla. 3d DCA 2008) (“[I]ntrinsic fraud is defined as ‘the presentation 

of misleading information on an issue before the court that was tried or could 

have been tried. A challenge to a final judgment based upon intrinsic fraud 

must be brought by filing a timely motion in the original trial court.’”) (internal 
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citations omitted); see also Parker v. Parker, 950 So. 2d 388, 391 (Fla. 2007)

(“Under rule 1.540(b), relief from a judgment based on intrinsic fraud must 

be sought by motion within one year of its entry.”).

Despite filing an independent action, Rodriguez cannot redefine and 

change the underlying claim from intrinsic to extrinsic fraud. See id. at 391–

92 (“In other words, extrinsic fraud occurs where a defendant has somehow 

been prevented from participating in a cause. . . . This Court . . . has 

expressly held that false testimony given in a proceeding is intrinsic fraud.”). 

The record demonstrates that Rodriguez participated, for years, represented 

by able counsel, in the underlying foreclosure action. No party compelled

Rodriguez to agree to a consent final judgment. Rodriguez offered no 

allegations (or proof) that the bank engaged in extrinsic fraud, collateral to 

the issues in the foreclosure case, to secure the results in that case. No one 

prevented her from continuing to defend her case, or pursue counterclaims 

or affirmative defenses, which she did ably for years until entry of the consent 

judgment on March 2, 2018. Instead, the alleged fraud of which Rodriguez 

complains in the underlying independent action to vacate the foreclosure 

sale (without tying any of the alleged fraud to Rodriguez’s case specifically) 

was intrinsic—that is, to the extent it existed it was “baked in” to the 

correspondence and statements from the bank and was there all along for 
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discovery and exploration in the original foreclosure case. It “pertain[ed] to 

the issues that have been tried or could have been tried.” Id. at 391 

(emphasis added).

The consent judgment on its face reveals that it was a bargained-for 

exchange. Both sides, Rodriguez, and the foreclosing bank, were 

represented by counsel. Both sides gave up certain rights in exchange for 

certainty and finality. Specifically, Rodriguez “consent[ed] to the entry of a 

final judgment of foreclosure” and, in exchange, Plaintiff (a) waive[ed], its 

right, if any, to a deficiency judgment . . . and (b) agree[d] the foreclosure 

sale date [would] not be set earlier than 90 days from entry of the final 

judgment of foreclosure.” Rodriguez chose the certainty of the bank not 

seeking a deficiency judgment and the assuredness that no sale would occur 

for three months; she has bettered this three-month deferral by almost threeand-a-half years and counting. In exchange, Rodriguez represented that 

she “waive[d] all claims against the Plaintiff and any defenses to this 

foreclosure action.” (Emphasis added). Rodriguez litigated her 

foreclosure case for years until deciding to negotiate and agree to a 

stipulated consent final judgment. Either side could have sought to continue 

the foreclosure. Either side could have pursued claims or defenses. She 

chose negotiation and the certainty of an agreed-to judgment. She doesn’t 
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get a late do-over because of intrinsic fraud. See, e.g., Alexander v. First 

Nat’l Bank of Titusville, 275 So. 2d 272, 274 (Fla. 4th DCA 1973) (explaining 

the limited application of an independent action for fraud based upon the text 

of the relevant rule and public policy favoring finality, reaffirming the 

requirement that intrinsic fraud be brought within one year in the original 

action and not via an independent action). Accordingly, we grant the petition 

for certiorari,2 quash the order under review, and remand for proceedings 

consistent with this opinion.

Petition for certiorari granted, order quashed, and cause remanded.

2 Because the certiorari relief granted herein disposes of the issues in this 

petition, we decline to address the request for prohibition.