Pino v.

Bank of New York Mellon

57 So.3d 950, 36 Fla. L. Weekly D646, Fla.App. 4 Dist., March 30, 2011 (NO. 4D10-378)

CASE SUMMARY
1. Introduction

The defendant in a mortgage foreclosure action filed by BNY Mellon appeals a trial court's denial of his motion under Florida Rule of Civil Procedure 1.540(b)to vacate a voluntary dismissal. On April11th, 2011, the Florida Supreme Court acknowledged PINO as a new case, case number SC11-697. This was after the 4th DCA decided the case (affirmed) and certified as a question of great importance: DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT? 2. Details The Bank of New York Mellon (BNY) filed a foreclosure action against Pino. The complaint alleged it was the owner and holder of the note, but claimed the note was lost and attached no assignment. After a motion to dismiss was filed by Pino, BNY filed an assignment that was dated a few days prior to the filing of the action. Pino alleged that the assignment was fraud upon the court. The newly produced document of assignment was false and had been fraudulently made, pointing to the fact that the person executing the assignment was employed by the attorney representing the mortgagee, and the commission date on notary stamp showed that the document could not have been notarized on the date in the document. Just prior to scheduled depositions and other discovery directed at the issue, the Plaintiff filed a Notice of Voluntary Dismissal. 5 months later the Plaintiffs refiled with a new assignment of mortgage and no claim of a lost note. Pino sought to have the dismissal vacated and the new filing dismissed with prejudice based on the alleged fraud. 3. Facts The facts are as outlined above. The 4th DCA agreedwiththe trial courts refusal to strike the notice of voluntary dismissal because the defendant was not unduly prejudiced and plaintiff has not obtained any affirmative relief before dismissal and that Rule 1.420(a)

permits a plaintiff to dismiss an action without order of the court at any time before a motion for summary judgment is heard or before retirement of the jury or submission to the court if the matter is tried non-jury. The dissenting opinion was that the plaintiff had received relief by escaping further discovery into the alleged fraud and that the defendant had been prejudiced because the alleged fraud in the matter was now lost. Pino filed to have the voluntary dismissal disallowed under Florida Rule of Civil Procedure 1.540(b). 4. Summary The matter was referred to the Supreme Court before any of the parties raised the matter for further review. Fraud in foreclosures has been a difficult issue. The point of law appears to hinge on two issues. Does the fraud have to be complete in order to seek a common law exception to the availability of voluntary dismissal? To what extent must a party be harmed or prejudiced for a court to strike a voluntary dismissal. 5. Attached are the oral arguments that were made before the 4th DCA and the pertinent case law.