ERROL O. BOOTHE
v.
U.S. BANK NATIONAL ASSOCIATION
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The borrower appealed from an order denying his motion to vacate a foreclosure sale and stay a writ of possession. The appellate court quashed the trial court's order as void due to lack of jurisdiction, finding that a related appeal was still pending when the trial court entered its order.
The trial court lacked jurisdiction to enter the September 19, 2017 order because the borrower's appeal from the earlier motion to vacate writ of possession was still pending. Accordingly, the appellate court quashed the order as void without reaching the merits of the appeal.
[1] A trial court is without jurisdiction to enter an order on a motion to vacate in a foreclosure proceeding when an appeal from an earlier related motion in the same action…
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Join FLexlaw to unlock all legal intelligenceA foreclosure sale was entered on September 28, 2016. The borrower filed a motion to vacate the writ of possession, which was denied by the trial cour…
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE 12-025009 (11).
Catherine A. Riggins, Miami, for appellant. Chase A. Berger of Berger Firm, P.A., Miami, for appellee. PER CURIAM.
The Borrower appeals from a September 19, 2017 order denying his September 5, 2017 “Emergency Motion to Vacate Sale Entered on September 28, 2016, Vacate Certificate of Title and to Stay and Vacate Writ of Possession.”
The trial court lacked jurisdiction to enter the order because the borrower’s appeal (4D17-2697) from an earlier motion to vacate writ of possession was still pending. See Fla. R. App. P. 9.130(f). We therefore do not reach the merits of this appeal and instead quash the September 19 order as void. See Rivas v. Bank of New York Mellon, 43 Fla. L. Weekly D167 (Fla. 4th DCA Jan. 17, 2018) (quashing order denying motion to vacate foreclosure judgment as void without reaching merits of the order where the order was entered while appeal from foreclosure judgment was pending). In so doing we express no comment on the merits of the court’s denial of the September 5 motion.
In light of our disposition, we deny the Bank’s motion to dismiss appeal as moot.
Appellant is reminded that this court has already affirmed the trial court’s order denying appellant’s motion to vacate the sale in case number 4D16-4313.
Order quashed. LEVINE, CONNER and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.