       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                     HOME ALLY FINANCIAL, LLC,
                            Appellant,

                                     v.

 STANLEY ROSEN, UNKNOWN SPOUSE OF STANLEY ROSEN n/k/a
  MELANIE ROSEN, 21st MORTGAGE CORPORATION, AS MASTER
SERVICER FOR CHRISTIANA TRUST, A DIVISION OF WILMINGTON
SAVINGS FUND SOCIETY, FSB, AS TRUSTEE FOR KNOXVILLE 2012
f/k/a RESIDENTIAL FUNDING COMPANY, LLC, BANK OF AMERICA,
 NA, LEGENDS AT WESTON HILLS COUNTRY CLUB CONDOMINIUM
     ASSOCIATION, INC., THE TOWN FOUNDATION, INC., and
   UNKNOWN TENANT IN POSSESSION OF SUBJECT PROPERTY,
                     n/k/a RITA NASTA,
                          Appellees.

                              No. 4D18-3155

                          [September 25, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Senior Judge; L.T. Case Nos. CACE12-
031840 & CACE14-019680.

   Mark A. Levy of Brinkley Morgan, Fort Lauderdale, for appellant.

  Jonathan Kline of Jonathan Kline, P.A., Weston, for appellee Stanley
Rosen.

KUNTZ, J.

    One year after a junior lienholder filed a notice of voluntary dismissal
of its claims, the borrower moved to vacate the voluntary dismissal, and
instead enter an involuntary dismissal, because the junior lienholder
impermissibly included an additional case number on the notice of
voluntary dismissal. The court granted the borrower’s motion. We reverse.
                                Background

   Home Ally Financial, a junior lienholder, and Residential Funding
Company, a senior lienholder, separately filed foreclosure lawsuits against
a defaulting borrower. The senior lienholder moved to consolidate, and
the circuit court consolidated the two lawsuits. The consolidation order
noted that the original case was administratively closed and instructed
that all filings were to be entered under the consolidated case number.

    The circuit court granted the senior lienholder’s summary judgment
motion against the junior lienholder, which rendered the junior
lienholder’s claims moot. Because its claims were moot, the junior
lienholder filed a notice of voluntary dismissal.

   Six months after the notice of voluntary dismissal was filed, the
borrower moved for attorney’s fees. The court denied the motion. Three
months later, the borrower filed a renewed motion for fees, arguing
excusable neglect led to the six-month delay in the original fee motion.
After a hearing, the court denied the renewed motion.

    Exactly one year after the voluntary dismissal was filed, the borrower,
citing Florida Rule of Civil Procedure 1.540(b)(1), moved to vacate the
voluntary dismissal, and instead enter an involuntary dismissal. The
court held a hearing, granted the borrower’s motion, and entered a final
judgment of dismissal of the junior lienholder’s action. The court found
the junior lienholder’s notice of voluntary dismissal “fail[ed] to comply with
the unambiguous language contained in the March 4, 2015 Consolidation
Order and the November 29, 2016 Clarification Order” because the junior
lienholder included the original case number as well as the consolidated
case number in its notice of voluntary dismissal. The court found that
this “error” was “procedurally improper and contained substantive
mistakes, necessitating entry of this Final Judgment of Dismissal and
Order.”

                                  Analysis

   The junior lienholder appeals the court’s judgment entered after it
granted the borrower’s motion. 1 The court found that the junior lienholder


1Only the judgment that resulted from the motion is at issue in this appeal. The
borrower did not appeal the original order denying his motion for fees. He did
appeal the order denying the renewed motion for fees but voluntarily dismissed
that appeal.

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violated the consolidation order because it had included the case number
of the original case, before consolidation, on the voluntary dismissal.

    But the “error” here does not seem so significant. In fact, we question
whether the junior lienholder even erred. The junior lienholder did not file
the notice of voluntary dismissal with an incorrect case number. Instead,
in an abundance of caution, the junior lienholder filed the notice of
voluntary dismissal with an additional case number. It included both the
number for the original case and the consolidated case. And the junior
lienholder also filed the dismissal notice in both cases. This belt-and-
suspenders approach hardly shows a failure to comply with the
consolidation order. Thus, factually, the court erred in granting the
motion.

    The court also erred as a matter of law. The borrower did not move to
vacate the junior lienholder’s voluntary dismissal within a reasonable
amount of time after the filing of the voluntary dismissal. Florida Rule of
Civil Procedure 1.540(b) requires a moving party to file a motion to vacate
a judgment “within a reasonable time” and, for excusable neglect, “not
more than 1 year after the judgment, decree, order, or proceeding was
entered or taken.” Before the motion at issue, the borrower filed two
motions seeking fees, both relating to the voluntary dismissal. It was not
reasonable to wait until exactly one year after the voluntary dismissal was
filed to seek relief—at least not on the grounds raised in the borrower’s
motion.

                               Conclusion

   The court’s judgment is reversed, and the case is remanded with
instructions to reinstate the junior lienholder’s notice of voluntary
dismissal.

   Reversed and remanded with instructions.

LEVINE, C.J., and GERBER, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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