MARIO G. DEMENDOZA, III, INDIVIDUALLY AND AS TRUSTEE AND SOUTHEAST BANK, N.A., A NATIONAL BANKING ASSOCIATION, BANK OF SOUTH PALM BEACHES, APPELLANTS,
v.
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF THE PALM BEACHES, A FEDERALLY CHARTERED SAVINGS AND LOAN ASSOCIATION, APPELLEE
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Florida appellate court affirmed summary judgment in mortgage foreclosure, holding that appellant waived any objection to procedural deficiency by failing to raise it at trial and that Rule 1.540(b) does not apply to vacate final judgments based on alleged procedural error in summary judgment proceedings.
A party waives objection to procedural deficiency in summary judgment proceedings by failing to raise it before the trial court, and Rule 1.540(b) does not provide grounds to vacate a final foreclosure judgment based on such procedural error.
[1] A party waives objection to procedural deficiency in summary judgment proceedings by failing to raise it before the trial court.
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PER CURIAM.
Appellee, First Federal Savings and Loan Association of The Palm Beaches (First Federal), as the plantiff in a mortgage foreclosure action, on October 29, 1990, filed a motion for summary judgment and scheduled a hearing thereon for December 4, 1990. A supplemental affidavit to add $616 in taxes was filed by First Federal on November 27,1990, and the summary judgment hearing was rescheduled for December 12, 1990. Counsel for both parties were present and the matter was heard by the trial court and final judgment entered December 12, 1990. Sale was had and certificate of title issued.
On January 22, 1991, appellant moved to vacate the judgment pursuant to Florida Rule of Civil Procedure 1.540(b). As grounds therefor appellant stated: “The introduction of the supplemental affidavit gave rise to an error of fact and may be vacated under Rule 1.540(b) mistake[,] inadvertence.”
It is apparent from the scant record and briefs presented that, if a mistake was made, it was appellants’ failure to object on the grounds that the full twenty days required by the rule had not been allowed. Not having called this deficiency, if any, to the trial court’s attention, it was waived. Furthermore, we doubt the applicability of rule 1.540(b) in the context of this case.
Accordingly, the order appealed from is affirmed.
DOWNEY, LETTS and STONE, JJ„ concur.
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Rolfs v. First Union Nat'l Bank of Fla., 604 So. 2d 1269 (Fla. 4th DCA 1992)…defenses directed to said instruments. Finally, the error, if any, was reviewable by plenary appeal from the final judgment. Resort to Rule 1.540 was not appropriate as a substitute for appeal. DeMendoza v. First Federal Savings & Loan Association, 585 So. 2d 453 (Fla. 4th DCA1991). See also: Metropolitan Dade County v. Certain Lands Upon Which Assessments are Delinquent, 471 So. 2d 191 (Fla. 3d DCA1985); Fiber Crete Homes, Inc. v. Division of Administration, 315 So. 2d 492 (Fla. 4th DCA1975). We have also…
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Harris v. Vereen, 617 So. 2d 1151 (Fla. 3d DCA 1993)…PER CURIAM. Affirmed. See DeMendoza v. First Fed. Sav. and Loan Ass’n of the Palm Beaches, 585 So. 2d 453 (Fla. 4th DCA 1991); Bartlett Constr., Inc. v. Coastal Plains, Inc., 353 So. 2d 892 (Fla. 3d DCA 1977); Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA), cert. denied, 240 So. 2d 645 (Fla.1970).…