WASHINGTON MUTUAL BANK
v.
GRETCHEN MILLER
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A bank appealed the trial court's dismissal of a foreclosure complaint on remand following a prior appellate reversal. The court affirmed the dismissal but found the trial court erred by failing to vacate the original foreclosure judgment, sale, and certificate of title in conjunction with the dismissal.
The court affirmed the dismissal of the foreclosure suit as within the scope of the appellate mandate. However, the court reversed and remanded because the trial court erred in failing to vacate the foreclosure judgment, sale, and certificate of title when dismissing the complaint.
[1] A trial court on remand following appellate reversal is not required to consider a motion to amend pleadings that seeks to cure the defect underlying the appellate revers…
[2] When a trial court dismisses a foreclosure complaint on remand, the dismissal order must vacate any prior foreclosure judgment, judicial sale, and certificate of title is…
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Join FLexlaw to unlock all legal intelligenceThe bank initiated foreclosure proceedings against the borrower. Following a prior appeal, this court reversed the foreclosure judgment and an order d…
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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Eli Breger, Senior Judge; L.T. Case No. 50-2008-CA-013001-XXXX-MB.
Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for appellant. Jeffrey Begens of the Law Office of Jeffrey Begens, P.A., Palm Beach Gardens, for appellee, Gretchen A. Miller. PER CURIAM. In a prior appeal, this court reversed the foreclosure judgment entered in favor of the appellant (“bank”) as well as an order denying one of the appellee’s (“borrower’s”) objection to the judicial sale and issuance of a certificate of title. While on remand, the borrower moved to dismiss the foreclosure complaint. The bank moved to amend the pleadings in an attempt to cure the defect that resulted in the reversal of the judgment on appeal. The bank argues that the trial court erred in not considering its motion to amend the pleadings on remand. The bank also contends that the trial court exceeded the scope of the appellate mandate in dismissing the suit.
We reject these arguments and affirm the dismissal of the foreclosure suit. However, we find that the trial court erred in dismissing the foreclosure complaint without first vacating the foreclosure judgment, sale, and certificate of title. We remand to the trial court to amend the order so that it contains a provision vacating the foreclosure judgment, sale, and certificate of title. Affirmed in part, reversed in part, and remanded with instructions. CIKLIN, LEVINE and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.