# Third District Court of Appeal

State of Florida

Opinion filed August 22, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D17-2631

Lower Tribunal No. 10-43088

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### Deutsche Bank National Trust Company

as trustee for Certificateholders of

the Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC1O,

Appellant,

vs.



### Cesar Garcia Del Busto a/k/a Cesar Garcia, et al.,

Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, William Thomas

, Judge.

Holland & Knight LLP, and Katherine M. Joffe, and Brian K. Hole (Ft.

Lauderdale), for appellant.

No appearance for appellees.

Before LAGOA, SCALES, and LINDSEY, JJ.

LINDSEY, J.Deutsche Bank National Trust Company as Trustee for Certificateholders of

the Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC10 (“Deutsche Bank”)

appeals the trial court’s postjudgment order vacating a final judgment of

foreclosure entered against Cesar Garcia Del Busto (“Borrower”). Because there

was no legal basis for vacating the final judgment, we reverse and remand for

reinstatement of the final judgment of foreclosure.

On June 22, 2015, a final judgment of foreclosure (the “final judgment”)

was entered in favor of Deutsche Bank. More than two years later, on August 18,

2017, Borrower filed a motion to vacate the final judgment (the “motion to

vacate”). 1 In the motion to vacate, Borrower asserted that the parties had entered

into a repayment plan wherein the terms of loan had been modified and that

Borrower was in compliance with the repayment plan schedule. Although the

repayment plan was not attached to the motion to vacate, Borrower claimed that

the repayment plan was a mutual resolution between Borrower and Deutsche Bank

and therefore the final judgment should be vacated.

After the trial court subsequently denied the motion to vacate on September

28, 2017, Borrower filed a motion for reconsideration and rehearing (the “motion

for reconsideration”) on October 3, 2017. The trial court granted the motion for

reconsideration and set the motion to vacate to be heard on October 24, 2017. At

1 Borrower did not allege a basis for relief from the final judgment under Florida

Rule of Civil Procedure 1.540 in the motion to vacate or at any subsequent hearing.

2the October 24, 2017 hearing, counsel for Deutsche Bank stated that, while the

parties had entered into a stipulation in April of 2017, it was not yet a permanent

payment plan and that no valid reason existed under Florida Rule of Civil

Procedure 1.540 to vacate the final judgment. Although Borrower’s counsel

suggested to the trial court that the repayment plan was not temporary, the first

sentence of the repayment plan provides that Borrower was “approved for a

temporary repayment plan to assist you in making payments.”

A continuation of the October 24, 2017 hearing was held on October 31,

2017, at which a witness for Deutsche Bank explained that the case had not been

resolved and that the loan had not been modified. 2 Additionally, Deutsche Bank’s

counsel indicated that Borrower had not made all of the scheduled payments as of

October 31, 2017, which was in direct violation of the repayment plan’s terms and

grounds for cancelation. Nonetheless, the trial court determined that the case had

been settled and granted Borrower’s motion to vacate on October 31, 2017. The

instant appeal ensued.

“Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil

Procedure, the trial court has no authority to alter, modify or vacate an order or

judgment.” Miami-Dade County v. Second Sunrise Inv. Corp.

, 56 So. 3d 82, 85

2 The repayment plan makes clear that the terms of the original loan were not

modified. Under a paragraph entitled “Terms Not Modified,” the repayment plan

reads in pertinent part: “All terms and conditions of the current mortgage

documents pertaining to this account remain in full force and effect

. . . .”

3(Fla. 3d DCA 2011) (quoting Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson

, 236

So. 2d 1, 3 (Fla. 1970)). This Court generally reviews a trial court’s ruling on a

rule 1.540(b) motion for relief from judgment for abuse of discretion. See

Nationstar Mortg., LLC v. Diaz

, 227 So. 3d 726, 729 (Fla. 3d DCA 2017) (citation

omitted).

Here, “[w]e find no part of rule 1.540 which could be applied to provide the

relief granted in this case.” Second Sunrise Inv. Corp.

, 56 So. 3d at 85.

(determining that the motion was untimely under rule 1.540(b)(1), (2), and (3),

while provision (b)(4) was inapplicable because there was no allegation that the

underlying judgment was void). As in Second Sunrise Investment Corp.

, the

motion to vacate was untimely under rule 1.540(b)(1), (2), and (3), and rule

1.540(b)(4) was inapplicable because there is no allegation that the final judgment

was void. Id.

In regards to rule 1.540(b)(5), we further conclude that the final judgment

had not been satisfied by full compliance with the repayment plan. Additionally,

Borrower’s failure to seek relief under rule 1.540(b), on its own, is sufficient to

compel reversal of the trial court’s order vacating the final judgment. See Bank of

New York Mellon v. Peterson

, 208 So. 3d 1218, 1222 (Fla. 2d DCA 2017) (“Here,

the Estate's motion did not allege a basis for relief from the final judgment under

4rule 1.540, nor did the Estate argue entitlement to relief under rule 1.540 at the

hearing on its motion.”).

While Borrower claimed in the motion to vacate and at the two hearings in

October of 2017 that the final judgment should be vacated because the terms of the

loan had been modified and that the parties “reached a mutual resolution” that

satisfied the final judgment, the record demonstrates that the repayment plan was

temporary and that Borrower had failed to make all of the required payments as of

October 31, 2017. Furthermore, Deutsche Bank’s witness explained to the trial

court, and the language of repayment plan makes clear, that the terms of the loan

were not modified.

Because Borrower failed to provide any basis under rule 1.540 upon which

to vacate the final judgment, the trial court was without authority to grant the

motion to vacate. Accordingly, we reverse and remand for the trial court to

reinstate the final judgment.

Reversed and remanded.

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