GISELLE PORRAS,
v.
WACHOVIA BANK NA,
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The appellate court affirmed a trial court's denial of a motion to vacate a foreclosure judgment. The court found that although initial notice of a summary judgment hearing was sent to a former attorney, the subsequent rehearing on the motion, with proper notice to new counsel, cured any due process defect.
No, the final judgment is not void. Although the initial notice of the summary judgment hearing was defective, the trial court's subsequent rehearing of the motion with proper notice to the appellant's new counsel cured any due process violation.
[1] A final judgment entered without notice of the hearing and an opportunity to be heard is void for lack of due process.
[2] A timely motion for rehearing tolls the rendition of a final judgment and the time period for filing an appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While the record supports Porras’ factual premise that the notice of hearing was sent to her former attorney, it does not support her legal conclusion that she was denied due process of law.”
This quote establishes the court's acknowledgment of the factual issue regarding notice but refutes the legal conclusion of a due process violation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGiselle Porras appealed the denial of her motion to vacate a final judgment of foreclosure. She argued the judgment was void because she and her new a…
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O, Judge.
Giselle Porras, in proper person.
McGuireWoods LLP, and Sara F. Holladay-Tobias (Jacksonville), Emily Y. Rottmann (Jacksonville) and C.H. Houston, III (Jacksonville), for appellee.
Before EMAS, C.J., and FERNANDEZ and MILLER, JJ.
PER CURIAM.
Giselle Porras appeals from the trial court’s order denying her motion to vacate a final judgment of foreclosure and to cancel the foreclosure sale. None of the issues raised on appeal has merit; however, we write to address Porras’ contention that the final judgment is void and must be vacated because she was denied due process.
In May 2010, a hearing was held on Wachovia Bank’s motion for summary judgment, and the trial court granted Wachovia’s motion. Porras contends that neither she nor her attorney received notice of (or attended) the hearing, and that Wachovia Bank instead sent the notice to her former attorney, who had been granted leave to withdraw well before the summary judgment had been set and noticed for hearing. While the record supports Porras’ factual premise that the notice of hearing was sent to her former attorney, it does not support her legal conclusion that she was denied due process of law. That is because after the trial court granted Wachovia’s summary judgment motion and entered a final judgment, Porras’ new counsel filed a timely motion for relief from judgment based on the lack of notice and any opportunity to be heard on Wachovia’s motion for summary judgment.
The trial court properly treated the motion as one seeking rehearing under Florida Rule of Civil Procedure 1.530,1 and ordered that Wachovia’s summary judgment motion be reheard, with proper notice to Porras’ new counsel. Thereafter, a new hearing was held on Wachovia’s motion for summary judgment, with proper notice to Porras’ new counsel, who was in attendance and had an opportunity to be heard on the merits of whether Wachovia was entitled to summary judgment. Following rehearing, the trial court determined Wachovia was entitled to summary judgment and reaffirmed the final judgment entered in its favor.2 See, e.g., Renovaship, Inc. v. Quatremain, 208 So. 3d 280 (Fla. 3d DCA 2016) (reaffirming the well-established principle that a final judgment entered without notice of the hearing and an opportunity to be heard is void for lack of due process; but holding that the final judgment in that case was not void because appellant received notice of the hearing that resulted in the judgment on appeal, and had an opportunity to be present and be heard).
The final judgment in the instant case is not void and Porras’ remaining challenges to that judgment are either untimely, without merit, or both.
Affirmed.
On July 9, 2018, more than eight years after entry of the final judgment, Porras filed her “Motion to Stop Foreclosure Sale of 7/11/2018 & to Vacate Final Judgment” which was denied in the instant order on appeal.