Thursday, December 27, 2012

Vacating A Judgment/Order Requires Sworn Testimony Or Evidence--Not A Lawyers Argument

In Chase Home Loans v. Sosa (3D12-1783), the Third District reversed an order vacating a foreclosure sale. The motion was filed by a husband who asserted that his wife, a co-signatory on the mortgage, "'actively concealed' the proceeding by hiding all notifications under the family sofa." The trial court vacated the sale, presumably "inspired by benevolence and compassion for the family." However, there was no issue of service of process and there was no sworn evidence or testimony submitted in favor of vacating the foreclosure sale. 
The court stated that:
The husband’s motion was brought under Florida Rule of Civil Procedure 1.540(b), which permits a trial court to relieve a party or a party’s legal representative from a final judgment, decree or order based upon mistake, inadvertence, surprise or excusable neglect. However, as we often have said, unsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation....“It is of no moment in establishing facts that attorneys are ‘officers of the court’ as we often read when an unsworn representation is made.”...Nor is the fact that the wife may have been the subject of some undetected “degree of mental incapacity” during the course of the foreclosure action. Even if true, this does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant vacating a final judgment.
A motion to vacate requires the submission of actual sworn evidence in order to be considered on the merits. The motion in this case did not even have that. Because the attorneys mere legal argument was not sufficient, the court reversed the order vacating the foreclosure sale. 


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