In short: Generally no. Florida courts have held that a junior lienholder’s foreclosure judgment that purports to wipe out a senior mortgage is void as to that mortgage, so the one-year limit on most motions to vacate does not protect it. In Bijlani v. The Bank of New York Mellon, a Miami-Dade trial court vacated such a default judgment years after it was entered, and the Third District affirmed without opinion on October 12, 2022.
The Facts
The Third District affirmed without a written opinion, so there are no appellate findings. The facts below are what the lawyers described at the January 6, 2021 oral argument.
Michael Bijlani foreclosed his own mortgage on a Miami-Dade property and named The Bank of New York Mellon as a defendant. The bank’s mortgage had been recorded first. According to the bank, Bijlani’s complaint itself alleged that his interest was subordinate. Service was made in 2010 by leaving the papers with an employee at an address in New York. The bank did not respond, and Bijlani obtained a default judgment that foreclosed the bank’s mortgage.
Years later, the bank moved to vacate. The trial court vacated the judgment as void and dismissed the action as to the bank. Bijlani appealed, and the bank cross-appealed on its separate argument that service was defective.
- Bijlani argued that under the Florida Supreme Court’s 2015 La Mer decision, a judgment entered by a court with jurisdiction is at most voidable even if the plaintiff lacked standing or failed to state a cause of action, so the bank’s motion was barred by the one-year limit in rule 1.540(b). He also argued that the return of service was regular on its face and that the bank never denied receiving the papers.
- The bank argued that a court has no power to foreclose a senior lien in a junior lienholder’s action, relying on Cone Bros. Construction Co. v. Moore, 193 So. 288 (Fla. 1940), and on Second and Fourth District decisions holding such judgments void. It also argued that the return did not show the absence of the corporate officers who had to be served first.
- The panel asked whether this was really a question of subject-matter jurisdiction, since courts plainly have jurisdiction to decide lien priority.
The Decision
The Third District affirmed on October 12, 2022, in a per curiam affirmance without a written opinion. Bijlani moved for a written opinion or, in the alternative, certification of a question to the Florida Supreme Court. The court denied that motion on November 17, 2022, and the mandate issued on December 5, 2022.
Because there is no opinion, the affirmance does not say whether the court relied on the void-judgment rule, the service defect, or something else. It leaves the order vacating the judgment in place.
The Law
Rule 1.540(b) sets a one-year deadline for vacating a judgment for mistake, fraud and similar reasons, but a void judgment can be attacked at any time. That is why the void-or-voidable label decided this case.
In Bank of New York Mellon v. Condominium Ass’n of La Mer Estates, Inc., No. SC14-1049 (Fla. Sept. 17, 2015), the Florida Supreme Court held that a default judgment based on a complaint that fails to state a cause of action is voidable, not void. Bijlani argued that rule controlled.
The other line of cases starts with Cone Bros., which says holders of prior liens are not necessary or proper parties to a junior lienholder’s foreclosure. Applying that rule, Citimortgage, Inc. v. Henry, 24 So. 3d 641 (Fla. 2d DCA 2009), and Bank of New York Mellon v. Sperling, No. 4D15-4207 (Fla. 4th DCA Aug. 24, 2016), held that a junior lienholder’s judgment purporting to foreclose a senior mortgage is void as to that mortgage and must be vacated.
Service on a corporation is governed by section 48.081, and the contents of a return of service by section 48.21. Current law (2026): the Legislature rewrote section 48.081 in 2022 (ch. 2022-190). It now makes the registered agent the first stop and allows service on listed officers if the agent cannot be served. Older cases about showing the absence of superior officers were decided under the prior version.
Lessons
- A junior lienholder that names the first mortgagee in its foreclosure should not expect the judgment to wipe out the first mortgage, even on default.
- Buyers at a junior lien foreclosure sale take subject to the senior mortgage. Check priority before bidding.
- The one-year limit in rule 1.540 does not protect a judgment that a court treats as void.
- Serving a corporation means following the statute exactly. A return that does not show compliance invites a later attack.
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.
Junior Lienholder's Default Foreclosing a Senior Mortgage: Void Judgment or Merely Voidable?
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
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- Contractor Can't Undo a Default Over Who Took the Papers (KMG Properties v. Owl Construction)
Frequently Asked Questions
Can a second mortgage holder foreclose out the first mortgage in Florida?
No. A junior lienholder’s foreclosure does not extinguish a senior mortgage, and Florida appellate courts have held that a judgment purporting to do so is void as to the senior lender. In Bijlani, the order vacating such a judgment was affirmed.
Is there a time limit to vacate a void foreclosure judgment?
The one-year deadline in rule 1.540 applies to voidable judgments, such as those based on mistake or fraud. A void judgment can be attacked at any time, which is why the bank in Bijlani could move to vacate years later.
What is the difference between a void and a voidable judgment?
A void judgment never had legal effect, for example because the court lacked power over the subject or the party. A voidable judgment is effective until it is set aside. In La Mer, the Florida Supreme Court held that a judgment on a complaint that fails to state a cause of action is only voidable.
Does a buyer at an HOA or second mortgage foreclosure sale take the property free of the first mortgage?
No. The buyer takes subject to the senior mortgage. If the first mortgage is not paid, the senior lender can still foreclose.
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.
