In short: Not on the same grounds. Once a motion to vacate is denied and that denial is affirmed on appeal, a trial court has no authority to grant a second rule 1.540 motion that raises the same issue. In JPMorgan Chase Bank v. Villacorta, the Third District reversed an order that vacated a Miami-Dade foreclosure judgment on a second, duplicative service-of-process motion and ordered the judgment reinstated on April 11, 2018.
The Facts
Chase filed a foreclosure against Juan Jose Villacorta in August 2009. Personal service failed, so the bank served him by publication. After a nonjury trial in September 2012, the court entered a final judgment, and the property was sold on November 1, 2012.
On November 9, 2012, Mr. Villacorta filed an objection to the sale and motion to vacate the judgment, arguing that service was legally insufficient. The trial court denied it, and the Third District affirmed without opinion in 2014.
In April 2017, he filed a second motion to vacate on the same service ground. A different trial judge held an evidentiary hearing, found that the bank had not conducted a diligent search before serving by publication, and vacated the judgment. Chase appealed.
- Chase argued that both motions rested on the same factual predicate, that the earlier affirmance was law of the case, and that the trial court had no authority to revisit it.
- Mr. Villacorta argued that his first filing was an objection to the foreclosure sale under chapter 45, not a rule 1.540 motion, so the second motion was his first true request for relief from judgment.
- The panel asked whether any procedural vehicle other than rule 1.540 could vacate a judgment after the rehearing period, and whether the lack of a hearing transcript mattered when the question was one of law.
The Decision
The Third District reversed on April 11, 2018, in a written opinion, and remanded with instructions to reinstate the final judgment of foreclosure. The court applied the rule that a trial court generally lacks authority to entertain a second rule 1.540 motion that tries to relitigate matters settled by the denial of an earlier one. Because Mr. Villacorta raised the same service-of-process grounds twice and the first denial had been affirmed, the trial court had no legal authority to grant the second, duplicative motion.
The opinion treated the first filing as a motion to vacate without separately addressing the chapter 45 argument. Rehearing was denied on May 2, 2018, and the mandate issued on May 18, 2018.
The Law
Rule 1.540(b) lets a court relieve a party from a final judgment for listed reasons, including a void judgment. It is not a vehicle for repeat attempts. The opinion relied on Adams v. Estate of Henderson, 155 So. 3d 485 (Fla. 4th DCA 2015), and Crocker Investments, Inc. v. Statesman Life Insurance Co., 515 So. 2d 1305 (Fla. 3d DCA 1987), for the rule against successive motions on the same grounds.
Service by publication is allowed only after a diligent search and inquiry. For an individual, the plaintiff files a sworn statement under section 49.041 describing that search. A judgment based on defective constructive service can be attacked as void, but the attack has to be made properly, and once.
Objections to a foreclosure sale are governed by section 45.031. An objection to the sale is a different thing from a motion attacking the judgment itself. Labeling a filing an objection did not keep the court from treating it as the homeowner’s one chance to attack the judgment on that ground.
Lessons
- Put every ground into your first motion to vacate. If it is denied and the denial is affirmed, the same ground is gone.
- A second rule 1.540 motion can work only on genuinely new grounds, such as fraud discovered later, not on a better-supported version of the old argument.
- If service by publication is weak, raise it fast and support it with evidence the first time.
- A favorable ruling from a new trial judge does not survive if the earlier ruling was already affirmed.
Source: JPMorgan Chase Bank, N.A. v. Villacorta, No. 3D17-1051 (Fla. 3d DCA Apr. 11, 2018); ACIS docket (rehearing denied May 2, 2018).
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.
Successive Rule 1.540 Motion After an Affirmed Denial: Can a Foreclosure Judgment Be Vacated?
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- HOA Foreclosure by Publication: Was the Diligent Search Enough? (Lora v. Floridian Bay)
- Second Appeal After a Foreclosure Judgment Is Affirmed: Why It Failed (Linares v. Nationstar)
- The Florida Foreclosure Sale: Timing, Redemption, Surplus Funds, and When You Have to Move
Frequently Asked Questions
Can I file a second motion to vacate a foreclosure judgment in Florida?
Only on different grounds. In Villacorta, the Third District held that a trial court has no authority to grant a second rule 1.540 motion that raises the same issue already denied, especially after that denial was affirmed on appeal.
What if I was served by publication and never knew about the foreclosure?
The bank must conduct a diligent search and inquiry before serving by publication, and the sworn statement under section 49.041 must reflect it. If it did not, the judgment may be attacked, but raise it promptly and with evidence, because you may get only one chance.
Is an objection to a foreclosure sale the same as a motion to vacate the judgment?
No. An objection under section 45.031 challenges the sale. A motion under rule 1.540 challenges the judgment. Villacorta’s first filing did both, and the court treated it as his motion to vacate.
How long do I have to vacate a foreclosure judgment?
Most rule 1.540 grounds, such as mistake or fraud, must be raised within one year after the judgment. A claim that the judgment is void must be raised within a reasonable time.
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.
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