                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

CITIBANK, N.A., NOT                 NOT FINAL UNTIL TIME EXPIRES TO
INDIVIDUALLY BUT SOLELY             FILE MOTION FOR REHEARING AND
AS TRUSTEE FOR THE                  DISPOSITION THEREOF IF FILED
HOLDERS OF BEAR STEARNS
ASSET BACKED SECURITIES             CASE NO. 1D15-2502
I TRUST 2006-HE3, ASSET-
BACKED CERTIFICATES
SERIES 2006-HE3,

      Appellant,

v.

UNKNOWN HEIRS,
BENEFICIARIES, DEVISEES,
ASSIGNEES, LIENORS,
CREDITORS, TRUSTEES AND
ALL OTHERS WHO MAY
CLAIM AN INTEREST IN THE
ESTATE OF JOSEPH E. JAMES;
UNKNOWN TENANT(S),

      Appellees.

_____________________________/

Opinion filed July 25, 2016.

An appeal from the Circuit Court for Duval County.
Aaron Bowden, Senior Judge.

Wm. David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale, for
Appellant.

No appearance, for Appellees.
BILBREY, J.

      Appellant appeals from the trial court’s order denying Appellant’s motion to

vacate the summary judgment of foreclosure, to dismiss the complaint, and to

dissolve the lis pendens. Appellant’s motion was filed in the trial court pursuant to

section 702.07, Florida Statutes (2015), and rule 1.540(b), Florida Rules of Civil

Procedure. The order denying the motion to vacate is an appealable final order

under rule 9.130(5), Florida Rules of Appellate Procedure.

      Because the record of the trial court proceedings demonstrates that the

judgment at issue was entered the day after the defendant/debtor’s petition for

bankruptcy was filed in federal court, the judgment was entered during the

pendency of the automatic stay imposed by 11 U.S.C. § 362. The judgment was

therefore void. See McMahon v. Ryan, 964 So. 2d 198, 200 (Fla. 5th DCA 2007).

This is so, even though Appellant and the trial court did not have notice of the

automatic stay until after the judgment was entered.              Personalized Air

Conditioning, Inc. v. C.M. Sys. of Pinellas Cty., Inc., 522 So. 2d 465, 466 (Fla. 4th

DCA 1988); Woods v. Lloyds Asset Mgmt., LLC, --- So. 3d ---, 41 Fla. L. Weekly

D1071, 2016 WL 2342898 (Fla. 4th DCA May 4, 2016). The trial court had no

discretion to deny the motion to vacate a void judgment. Segalis v. Roof Depot

USA, LLC, 178 So. 3d 83, 85 (Fla. 4th DCA 2015).

      With the void judgment vacated, the trial court should also have allowed

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dismissal of the action. Rule 1.420(a), Florida Rules of Civil Procedure, allows a

plaintiff to dismiss an action without order of the trial court. “The trial court has

no authority or discretion to deny the voluntary dismissal.” Pino v. Bank of New

York, 121 So. 3d 23, 31 (Fla. 2013).

      Finally, with the action dismissed, the trial court should have dissolved the

lis pendens. “[W]hen the action no longer affects the subject property, the court

shall control and discharge the recorded notice of lis pendens as the court would

grant and dissolve injunctions.” § 48.23(3), Fla. Stat. (2015). The action in which

the lis pendens was filed will no longer affect the subject property after the action

is dismissed. Therefore the lis pendens should have been dissolved.

      Accordingly, the order denying the motion to vacate the summary final

judgment in foreclosure, dismiss the complaint, and dissolve the lis pendens is

REVERSED and this cause REMANDED for entry of an order granting the

motion.

LEWIS and WINOKUR, JJ., CONCUR.




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