Postage-Meter Mark May Rebut Date Listed in Certificate of Service

In this foreclosure case, the bank moved for reconsideration after trial.  The certificate of service in the motion listed the last day (day 10) to serve the motion.  The postage-meter, however, listed the following day (day 11), one day too late.  The trial court denied the motion as untimely, without receiving evidence.  The bank appealed.  Finding this to be a case of first impression, the appellate court framed the issue: “In determining whether a motion was timely served by mail, can a private postage-meter mark constitute competent substantial evidence to rebut the prima facie proof of mailing evidenced by the date contained in the certificate of service?”

The court answered the question affirmatively, and remanded for the trial court to take further evidence on the issue.

Chase Bank v. Bigley, 38 Fla. L. Wkly D1998a (Fla. 3d DCA Sept. 18, 2013).

Personal Jurisdiction Over Judgment Debtor Not Necessary to Domesticate Foreign Judgment

A judgment creditor sought to domesticate and enforce a foreign judgment in Florida.  The judgment debtor challenged enforcement on the grounds that Florida lacked personal jurisdiction over the judgment debtor.  The Second DCA determined that the judgment could be domesticated in Florida regardless of whether Florida had personal jurisdiction over the judgment debtor.  In the context of domesticating a judgment, whether Florida had personal jurisdiction over judgment debtor was irrelevant.  The judgment debtor could challenge domestication if the foreign court lacked personal jurisdiction over the judgment debtor, not if Florida lacked personal jurisdiction.

Stocker v. Stocker, 38 Fla. L. Weekly D1968a (Case No. 2D12-4980 Sept. 18, 2013)

After One Year, Judgment Can Only Be Set Aside for Extrinsic Fraud

On February 25, 2010, an agreed final judgment of foreclosure was entered pursuant to a settlement agreement between the original lender and the defendants/appellees. On August 31, 2012, the defendants filed an objection to the sale and a rule 1.540(b) motion to vacate the February 2010 final judgment of foreclosure.  The trial court denied the defendants’ motion.

The Fourth DCA ruled that a trial court loses jurisdiction to entertain a motion to vacate a final judgment under Florida Rule of Civil Procedure 1.540 (b) after one year, including motions for “fraud on the court,” and upheld the trial court’s ruling. Only “extrinsic fraud,” i.e., that fraud which is outside and collateral to the issues tried in the case, may be raised beyond the one year period.

NAFH Nat. Bank v. Aristizabal, 2013 WL 3811356 (Fla. 4th DCA 2013).

Source: Real Property and Business Litigation Case Update

Court May Not Strike Plaintiff’s Voluntary Dismissal Unless Plaintiff Obtained Affirmative Relief – PINO V. THE BANK OF NEW YORK

 In this contentious foreclosure case, the lender filed multiple complaints that allegedly attached an inauthentic mortgage and assignment.  After receiving a sanctions motion by defense counsel, the lender dismissed the action without prejudice.  The lender then filed a second lawsuit in which it submitted yet another purported assignment with a different date and signed by different a person.  Defense counsel then moved in the first case to strike the voluntary dismissal and request that the case be dismissed “with prejudice” as a sanction for an alleged fraud on the Court.  The trial court denied the motion and the Fourth District affirmed.  The Supreme Court accepted jurisdiction, and affirmed on the following basis:

 “[W]hen a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff’s voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from remedying the effects of the fraudulent conduct.  Any affirmative relief the plaintiff obtained against the defendant as a result of the fraudulent conduct would clearly have an adverse impact on the defendant, thereby entitling the defendant to seek relief to set aside the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(3). . . . In this case, because BNY Mellon did not obtain affirmative relief before taking the voluntary dismissal, the trial court did not have jurisdiction to reinstate the dismissed foreclosure action for the purpose of dismissing the action with prejudice.”

Pino v. The Bank of New York, 38 Fla. L. Wkly S78a (Fla. Deb. 7, 2013)


DiGiovanni resides in California. BAC Home Loans, the Plaintiff, filed suit against DiGiovanni in Florida and attempted to serve him at his home in California. After several attempts at service were unsuccessful, BAC Home Loans had its process server file an affidavit stating that DiGiovanni was avoiding service and proceeded with service by publication.

In response, DiGiovanni’s counsel filed a notice of appearance which states: “Mark P. Stopa, Esquire and the Stopa Law Firm hereby make a general appearance on behalf of Defendant, [Leonardo N. DiGiovanni], and request that copies of all pleadings, notices, and correspondence be served upon him at the address listed below.” Stopa also filed a motion for extension of time to respond to the complaint. The extension was granted, and DiGiovanni then filed a motion to quash service by publication.

The trial court denied DiGiovanni’s motion to quash, concluding that he had “submitted himself to the jurisdiction of the [c]ourt by filing a motion for extension of time, before filing the [m]otion to [q]uash.”

The Second DCA reversed finding that “in order for a filing to actually constitute a general appearance before the court, it must seek some sort of affirmative relief on the merits of the case.”  “[T]he filing of a ‘notice of appearance’ by [defendant’s] counsel did not waive [defendant’s] right to claim lack of jurisdiction over [his] person.”  The court found that it was irrelevant that counsel had used the phrase “hereby make a general appearance on behalf of Defendant.”  The only analysis that mattered was whether the filing actually sought affirmative relief on the merits.

DIGIOVANNI v. BAC HOME LOANS SERVICING, L.P.,  Case No. 2D11-5265 (Fla. 2d DCA  March 14, 2012)