Redmond v. First Guaranty Mortg. Corp.

Citation: 268 So. 3d 918Docket: Case No. 5D18-2147

Court: District Court of Appeal of Florida; April 12, 2019; Florida; State Appellate Court

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Eric M. Redmond appeals the trial court's denial of his motion for relief from a final judgment of foreclosure, filed under Florida Rule of Civil Procedure 1.540(b). The court affirms the decision, agreeing with the outcome but not the reasoning. First Guaranty Mortgage Corporation initiated foreclosure proceedings against Redmond and co-defendant Kimberly Thomas-Tornillo due to non-payment since March 1, 2017. Redmond was served with process at the mortgaged property but did not respond to the complaint, leading to a clerk's default on October 30, 2017. A consent final judgment of foreclosure was entered against Redmond on April 11, 2018, despite his lack of execution on the stipulation, which was mailed to him.

After retaining counsel, Redmond filed his motion for relief from judgment and a motion to cancel the foreclosure sale scheduled for May 29, 2018. He stated that he did not file an answer because he believed discussions regarding a loan modification exempted him from doing so. On May 25, Redmond's counsel set a hearing for May 29, but First Guaranty's counsel cross-noticed the hearing for the same date. Redmond's counsel did not attend the hearing, resulting in the denial of both motions due to his absence. Redmond subsequently filed a motion for rehearing and a notice of appeal, arguing a due process violation due to inadequate notice for the hearing on his motion for relief. The court concurs, citing Florida Rule of Civil Procedure 1.090(d) and past case law that support the necessity for reasonable notice prior to a hearing.

May 28, 2018, was a holiday, resulting in no business days between the notice of hearing and the hearing itself. The appellate court affirmed the trial court's order based on the 'Tipsy Coachman' doctrine, which permits affirmance if the correct result is reached, even if the reasoning is flawed. The trial court could have denied Redmond's motion for relief from judgment without an evidentiary hearing, making the notice insufficiency inconsequential. To warrant a hearing under rule 1.540(b), Redmond needed to demonstrate a colorable entitlement to relief. His motion argued for vacating a clerk's default against him, which required showing excusable neglect, a meritorious defense, and due diligence in seeking relief.

Redmond failed to prove excusable neglect as his claims regarding misunderstandings at a conciliation conference and his belief that attending it constituted a response were insufficient. Prior case law emphasized that lack of legal representation or understanding does not qualify as excusable neglect. Additionally, Redmond's communication efforts with the loan servicer were not deemed excusable neglect. He also did not demonstrate due diligence, waiting nearly seven months to act after receiving the default notice and six weeks after the final judgment. Without substantial evidence of exceptional circumstances for his delays, he lacked due diligence.

Consequently, Redmond's motion did not establish either excusable neglect or due diligence, rendering a hearing unnecessary despite the notice issue. The order denying his motion was therefore affirmed.

A conciliation conference is characterized as an informal dispute resolution process facilitated by a neutral third party, aimed at helping the involved parties negotiate and resolve their conflicts. The record does not clarify whether the trial court mandated attendance at this conference or if it was voluntary. It appears that a scheduled foreclosure sale on May 29 did not occur. Redmond argued that the court should have granted his request to relinquish jurisdiction to the trial court for a ruling on his timely motion for rehearing. This claim was rejected, as Florida Rule of Civil Procedure 1.530 only allows rehearing after a 'judgment' is entered. An order denying a rule 1.540 motion for relief from judgment does not qualify as a 'judgment' under this rule, making Redmond's rehearing motion unauthorized. Relevant case law supports this, emphasizing the unique nature of orders from rule 1.540 motions and reiterating that rehearing requests in such contexts are not permitted.