       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         HEATHER EPSTEIN,
                             Appellant,

                                   v.

 BANK OF AMERICA, NATIONAL ASSOCIATION, AS SUCCESSOR BY
MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE
  UNDER THE SECURITIZATION SERVICING AGREEMENT DATED
  JULY 1, 2004 STRUCTURED ASSET SECURITIES CORPORATION
STRUCTURED ASSET INVESTMENT LOAN TRUST MORTGAGE PASS-
                  THROUGH CERTIFICATES,
                      SERIES 2004-7,
                         Appellee.

                            No. 4D13-4066

                          [January 28, 2015]

   Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No.
07 29745CA.

   Donna Greenspan Solomon of Solomon Appeals, Mediation &
Arbitration, Fort Lauderdale, and Roy D. Oppenheim, Geoffrey E.
Sherman, and Jacquelyn K. Trask of Oppenheim & Pilelsky, for appellant.

  Manuel S. Hiraldo of Blank Rome, LLP, Boca Raton, for appellee.

CONNER, J.

   The homeowner appeals the trial court’s order granting the bank’s
motion to vacate the final summary judgment of foreclosure, sale, and
certificate of title. The homeowner argues that the trial court erred in
granting the motion filed over three years after the final summary
judgment was entered. We agree and reverse.
             Factual Background and Trial Court Proceedings

   The problem began when the mortgage was signed using an incorrect
legal description for the real property. Subsequently, the bank filed a
foreclosure complaint. In December 2009, a final summary judgment of
foreclosure was entered using the incorrect legal description. The
foreclosure sale was conducted the following August with the bank as the
highest bidder. Shortly thereafter, a certificate of title containing the
incorrect legal description was issued to the bank.

    Two years later, in September 2012, the bank filed its first motion to
vacate the final summary judgment, sale, and certificate of title. The
motion was filed pursuant to Florida Rule of Civil Procedure 1.540(b)(1),
alleging that, “due to an inadvertent mistake,” the legal description of the
property in the mortgage was incorrect, and therefore, the bank needed to
amend the complaint to add a reformation count. It also alleged that the
incorrect legal description in the foreclosure judgment prevented the bank
from obtaining clear title to the property. In October 2012, the trial court
entered an order denying the bank’s motion, “without prejudice.”

   In January 2013, the bank filed its second motion to vacate. This
second motion was also filed pursuant to Florida Rule of Civil Procedure
1.540(b)(1), but, additionally, pursuant to rule 1.540(b)(4), on the added
grounds that the final judgment was void. In this motion, the bank
admitted that it was made aware of the error in the legal description in the
mortgage and final judgment in October 2010, ten months after the
judgment was entered. The motion alleged that the error in the legal
description in the final judgment was clouding the title to property owned
by a third party.

   A hearing was held on the bank’s second motion. At the hearing, the
homeowner objected to the bank’s second motion, arguing that the trial
court did not have jurisdiction to hear the motion because rule 1.540(b)(1)
has a one-year time limit for vacating a judgment, and the bank’s motion
was filed more than a year after the judgment was entered. The bank
renewed its argument that the incorrect legal description rendered the
judgment void, making the one-year time limitation inapplicable. The trial
court granted the bank’s second motion. This appeal follows.

                    Appellate Analysis and Disposition

   “An appellate court reviews an order on a rule 1.540(b) motion for relief
from judgment under an abuse of discretion standard.” Phadael v.
Deutsche Bank Trust Co. Ams., 83 So. 3d 893, 894 (Fla. 4th DCA 2012).

                                     2
    “If a judgment is ‘void’ then under rule 1.540(b) it can be attacked at
any time, but if it is only ‘voidable’ then it must be attacked within a year
of entry of the judgment.” Condo. Ass’n of La Mer Estates, Inc. v. Bank of
New York Mellon Corp., 137 So. 3d 396, 398 (Fla. 4th DCA 2014) Thus,
the determining factor in this case is whether the final judgment was void
due to an error in the legal description in the mortgage and judgment.

   Regarding the difference between judgments that are void and those
that are voidable, we have explained:

      Florida courts have long drawn a distinction between a “void”
      judgment and a “voidable” judgment. A void judgment is one
      entered in the absence of the court’s jurisdiction over the
      subject matter or the person. See, e.g., Sterling Factors Corp.
      v. U.S. Bank Nat’l Ass’n, 968 So. 2d 658, 665 (Fla. 2d DCA
      2007); Palmer v. Palmer, 479 So. 2d 221, 221 (Fla. 5th DCA
      1985) (“If a court has subject matter jurisdiction and that
      jurisdiction has been properly invoked by pleadings and
      properly perfected by service of process, its judgments,
      although erroneous as to law or fact and subject to reversal
      on appeal, are nevertheless not void.”).

Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA 2009). “In contrast, a
voidable judgment is a judgment that has been entered based upon some
error in procedure that allows a party to have the judgment vacated, but
the judgment has legal force and effect unless and until it is vacated.”
Zitani v. Reed, 992 So. 2d 403, 409 (Fla. 2d DCA 2008) (citing Sterling
Factors, 968 So. 2d at 665)).

    The bank argues that the judgment was void “because the owner of the
property identified in the judgment was not made a party to the underlying
case.” To support this contention, the bank cites to Community Federal
Savings & Loan Ass’n of the Palm Beaches v. Wright, 452 So. 2d 638 (Fla.
4th DCA1984). In Wright, the guardian for a minor, and not the minor
himself, was the only defendant in a foreclosure action against the minor’s
property. Id. at 640. After the foreclosure, when he was evicted from the
home, the minor was first made aware of the foreclosure and brought a
motion under rule 1.540 to vacate the default judgment. Id. The trial
court entered an order vacating the default judgment, and this court
affirmed, stating that “[i]t is well established that in an action to foreclose
a mortgage the owner of the fee simple title is an indispensable party.” Id.
Since the minor, as owner of the property, was never made a party to the
foreclosure action, the judgment of foreclosure was void. Id. at 641.

                                      3
    The bank argues that the instant case is similar to Wright, and that the
final summary judgment in this case is void because the due process rights
of the owner of the described property in the mortgage and judgment were
violated in that the actual owner was never made a party to the action.
However, there are two problems with the argument. First, there is no
evidence in the record that there is an owner of the described property
other than the homeowner named in the complaint, or that the property,
as described in the mortgage and judgment, even exists.1 Second, if the
property described in the mortgage and final judgment does exist, and if
there is an owner of the property other than the homeowner named in the
complaint, that owner was not the party challenging the final summary
judgment. “[C]onstitutional rights are personal and may not be asserted
vicariously.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). This also
holds true specifically for due process challenges. See State v. Muller, 693
So. 2d 976, 978 (Fla. 1997) (holding that a defendant lacked standing to
challenge a violation of the due process rights of the non-defendant owners
of a vehicle). Therefore, the due process argument that the judgment is
void is not applicable in this case.2

   Although not cited by either party, we agree with the analysis of the
Second District regarding the authority of the court to correct errors in the
legal descriptions in mortgages and foreclosure judgments:

      When a mortgage contains an incorrect legal description, a
      court may correct the mistake before foreclosure. If, however,
      the mistaken legal description is not corrected before final
      judgment of foreclosure, and the mistake is carried into the
      advertisement for sale and the foreclosure deed, a court
      cannot reform the mistake in the deed and judgment; rather,
      the foreclosure process must begin anew.

Lucas v. Barnett Bank of Lee Cnty., 705 So. 2d 115, 116 (Fla. 2d DCA 1998)
(citing Fisher v. Villamil, 62 Fla. 472, 56 So. 559 (1911)). As the Second
District noted, “[w]hile the mortgagee who bid its mortgage at the sale


1
  The legal description in the final judgment indicates the mortgage lien applied
to a portion of a platted subdivision lot, using a metes and bounds description.
It is unclear from the record whether the problem with the legal description is
that the metes and bounds description does not close or some other problem.
2
  For the same reason, the bank’s reliance on Hutchinson v. Chase Manhattan
Bank, 922 So. 2d 311 (Fla. 2d DCA 2006), is misplaced. There, the appellant was
a third party owner, who was not a party to the suit, contesting the foreclosure
sale.

                                       4
might have understood exactly what property was being offered, other
potential bidders at the sale might not have had the same understanding.”
Id.

   As to the named parties in this proceeding, there is no issue of subject
matter jurisdiction or personal jurisdiction. We therefore determine that
the final summary judgment was voidable, not void, and the bank’s motion
to vacate was time-barred under rule 1.540(b).

   Reversed and remanded.

CIKLIN and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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