In short: A lawyer needs the client’s clear and unequivocal authority to settle a case, but a homeowner who later says she never gave it carries the burden of proving that to the trial judge, and the judge decides whom to believe. In Fernandez v. The Bank of New York Mellon Trust Company, a Miami-Dade homeowner asked the court to vacate a consent foreclosure judgment entered on a stipulation her prior lawyer signed. The trial court denied her rule 1.540 motion after an evidentiary hearing, and the Third District affirmed without opinion on November 28, 2018.
The Facts
The Third District affirmed without a written opinion, so there are no appellate findings. What follows is what the lawyers described at oral argument.
Martha Fernandez was the defendant in a foreclosure brought by The Bank of New York Mellon Trust Company. On the eve of trial, the lawyer who had appeared for her signed a written stipulation for entry of a final judgment. On the trial date she came to court with a new trial lawyer, who said they saw the stipulation for the first time that day and objected. Ms. Fernandez does not speak English. The court entered the consent final judgment. No court reporter was present, so there is no transcript of what happened that day.
She moved for rehearing and to vacate the judgment. The trial court held an evidentiary hearing. Ms. Fernandez and her son testified that she never authorized the stipulation. The bank relied on the signed stipulation and did not call the lawyer who signed it. The trial judge found her testimony inconsistent in several respects and ruled that she had not met her burden to vacate the consent judgment.
- Ms. Fernandez argued that a settlement made by a lawyer without the client’s clear and unequivocal authority has no effect unless the client ratifies it, that the son’s testimony was unrebutted, and that she was denied her day in court.
- The bank argued that the party moving to vacate a judgment carries the burden, that the trial judge was entitled to weigh credibility after hearing the witnesses, and that the cases on settlement authority mostly involve motions to enforce settlements, where the burden sits with the other side.
- The panel focused on two questions: who bears the burden at a rule 1.540 hearing, and how an appellate court can second-guess a credibility call without a transcript of the trial date.
The Decision
The Third District affirmed on November 28, 2018, in a per curiam affirmance without a written opinion. The same day it granted the bank’s motion for appellate attorney’s fees, remanded to the trial court to set the amount, and denied Ms. Fernandez’s fee motion. The mandate issued on December 14, 2018.
A per curiam affirmance decides only this case. It does not say which argument the court accepted, and it is not a ruling that a lawyer can settle without the client’s consent.
The Law
rule 1.540 of the Florida Rules of Civil Procedure is the main way to undo a final judgment after the time for rehearing has passed. Relief for mistake, excusable neglect, fraud or similar grounds must be sought within a reasonable time and not more than one year after the judgment. A void judgment can be attacked at any time.
rule 1.530 covers motions for rehearing, which must be served within 15 days after the judgment is filed.
Florida courts have long held that a lawyer may not compromise a client’s claim without the client’s clear and unequivocal authority. When the question comes up on a motion to vacate, though, the party asking to set the judgment aside must prove its case to the trial judge. Credibility findings made after an evidentiary hearing are reviewed for abuse of discretion, which is a hard standard to overcome on appeal.
The missing transcript mattered. On appeal, the appellant must supply a record that shows the error. When part of the story was never recorded, the appellate court presumes the trial court ruled correctly on the parts it cannot see.
Lessons
- If you did not agree to a settlement your lawyer signed, object on the record immediately and make sure a court reporter is present.
- On a motion to vacate, you carry the burden. Bring every witness who can prove you never gave authority, including, if possible, the lawyer who signed.
- Consistency matters. A trial judge can discount testimony that is inconsistent on other points, even if it is consistent on the key one.
- Losing an appeal can mean paying the other side’s appellate fees, as happened here.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Foreclosure Judgment on a Stipulation the Homeowner Never Authorized: Void Under Rule 1.540?
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- Lender Lost $393,609 Redemption Fight With No Court Reporter (GMAC v. Palenzuela)
- Second Appeal After a Foreclosure Judgment Is Affirmed: Why It Failed (Linares v. Nationstar)
- The Florida Foreclosure Process, Step by Step (From Default to Writ of Possession)
Frequently Asked Questions
Can my lawyer settle my foreclosure case without my permission?
A lawyer needs the client’s clear and unequivocal authority to settle or stipulate to a judgment. A settlement made without that authority can be set aside unless the client later ratifies it. The catch, as Fernandez shows, is that you may have to prove the lack of authority to a judge who decides whom to believe.
How do I vacate a foreclosure judgment I never agreed to?
The usual tool is a motion for rehearing under rule 1.530 within 15 days, or a motion for relief from judgment under rule 1.540. Most rule 1.540 grounds must be raised within one year. Expect an evidentiary hearing where you carry the burden of proof.
Who has the burden of proof on a motion to vacate a judgment in Florida?
The party asking to set the judgment aside. In Fernandez, the panel pressed this point at argument, and the trial court’s ruling that the homeowner had not met her burden was affirmed.
What happens if there is no court reporter at a foreclosure trial?
There is no transcript for the appellate court to review, so it generally presumes the trial court got it right. That left Ms. Fernandez relying on her own verified motion to describe what happened on the trial date.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
