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Filing # 176704026 E-Filed 07/05/2023 11:50:26 AM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL ACTION NO: 2019 CA 000367 OC
DIVISION: 22
VICTOR ORTIZ,
Plaintiff,
VS.
REMINGTON MASTER HOMEOWNERS
ASSOCIATION, INC.,
Defendant.
/
RESPONSE TO MOTION FOR SUMMARY JUDGMENT
PLAINTIFF, VICTOR ORTIZ, by and through the undersigned counsel, hereby submits
this response to the Motion For Summary Judgment filed by Defendant REMINGTON
MASTER HOMEOWNERS ASSOCIATION, INC., and Plaintiff states the following:
Statement of Procedure and Facts
Defendant sued Plaintiffto obtain a judgment for allegedly unpaid homeowners
association fees, and to foreclose on Plaintiff's vacant lot that Plaintiff had purchased for
$38,000 in September 2015. On November 30, 2015, Defendant issued a Notice of Intent To
Record A Claim Of Lien on Plaintiffs property for unpaid maintenance fees, and allegedly sent
the notice to Plaintiffs “vacant lot”. Even though Defendant never confirmed that it properly
noticed or served Plaintiff, Defendant proceeded with a lawsuit in September 2016 to obtain a
money judgment and foreclose on a Claim of Lien it filed in July 2016.
Defendant was fully aware that the address it had for Plaintiff was a vacant lot, and
Defendant learned that it could not obtain personal service of any lawsuit upon Plaintiffat this
vacant lot within Defendant’s subdivision. In fact, Plaintiff has now learned that Defendant
attempted to serve and notify Plaintiff at the completely wrong address. Throughout the
foreclosure process and litigation, Defendant claimed it was sending notices to “2714 Wortham
Lane”, when in reality the vacant lot that Plaintiff owned was located at what is known as “2713
Wortham Lane”, a separate vacant corner lot, diagonally across the street from Plaintiff's lot.
Yet, Defendant still proceeded with the lawsuit and falsely claimed to the trial court that
Defendant had given notice to Plaintiff at the correct property. And when Defendant could not
serve Plaintiffat the “vacant lot”, Defendant later claimed to the court that it served Plaintiff at
an address in Wellington, Florida. However, Plaintiff has never lived in Wellington, Florida
and he was never served with the complaint. Refusing to recognize that it had not served
Plaintiff with the foreclosure lawsuit, Defendant still proceeded to make false representations to
the court in order to obtain a judgment, and Defendant repeatedly claimed it was sending copies
of pleadings to Plaintiff in Wellington, Florida. However, Defendant was sending copies of any
and all pleadings to the wrong person at the wrong address. Therefore, Defendant did not
provide notice to Plaintiff
and did not legally serve Plaintiff with the lawsuit as required by
Florida law.
Defendant obtained a final judgment based on additional false representations to the trial
court, and on or March 1, 2017, a judicial foreclosure sale took place and Plaintiff's property was
sold to a third party, Sebastien Szymezak for $7,501. The Clerk of the Court for Osceola
County issued a Certificate of Title on March 14, 2017, recorded at Book 5116, Page 2768 of the
Osceola County records. In May 2018, Plaintiff first learned of the lawsuit and foreclosure
sale. On June 26, 2018, Plaintiff signed under oath an affidavit stating that he had never been
served with the foreclosure lawsuit filed by Defendant and had not been served with any prior
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notices, pleadings, nor the notice of the judicial foreclosure sale. On July 20, 2018, Plaintiff's
counsel sent a demand letter to counsel for Defendant and Plaintiffs counsel listed the false
representations that Defendant made in order to obtain its judgment. Defendant still refused to
address Plaintiff's concerns and denied that it obtained a void judgment.
On January 30, 2019, Plaintiff filed a Complaint for Declaratory Judgment against
Plaintiff in this case. Plaintiff listed Defendant’s false representations that Defendant used to
obtain a judgment of foreclosure and Plaintiff asked the trial court to enter a Declaratory
Judgment and provide supplemental relief in the event the trial court found that there were
grounds to unwind the foreclosure sale or award damages to Plaintiff for the false
misrepresentations that Defendant made to obtain the judgment of foreclosure. The final
judgment in the foreclosure suit, Remington Master Association Inc. v. Victor Ortiz et al, Case
No. 2016 CA 002320, Circuit Court, Osceola County, Florida, had been in place for more than 1
year after Plaintiff was made aware of the foreclosure. So, because Section 45.031(6) of the
Florida Statutes stated, “‘...When the certificate of title is filed the sale shall stand confirmed, and
title to the property shall pass to the purchaser named in the certificate without the necessity of
any further proceedings... ” , Plaintiff believed that a suit for Declaratory Judgment was
appropriate. Likewise, Plaintiff believed that Section 45.0315 terminated his right of
redemption once the Certificate of Sale was issued. Therefore, Plaintiff believed that a suit for
Declaratory Judgment was appropriate.
In December 2021, this court heard a motion to dismiss the Complaint for Declaratory
Judgment, and on January 3, 2022, the court issued an order dismissing the complaint without
prejudice, allowing Plaintiffto file an amended complaint and submit claims for damages and
appropriate remedies. On January 31, 2022, Plaintiff filed the Amended Complaint where
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Plaintiff again outlined Defendant’s false claims and efforts to obtain a foreclosure sale of
Plaintiff's property. Noting that Plaintiff
may not have had a remedy to set aside the foreclosure
sale and obtain return of Plaintiff's property, Plaintiff sued Defendant for Abuse of Process
(Count I), Malicious Civil Prosecution (Count II), Gross Negligence (Count III), Fraud (Count
IV), Violation of F.S. 720.3085 (Count V), Slander of Title (Count VI), and Florida Deceptive
and Unfair Trade Practices Act (Count VII).
Defendant has now filed a Motion For Summary Judgment and argued that Plaintiff
has
no legal right to sue Defendant because none of the above claims are justiciable. Defendant
further argues that Plaintiff has no right to seek redress to set aside the judgment of foreclosure
because the time for seeking redress to set aside the judgment on the basis of fraud, mistake, or
excusable neglect under Rule 1.540 of the Florida Rules of Civil Procedure expired before
Plaintiff filed this lawsuit. Further, Defendant claims that it could make a series of false
statements and pleadings in order to foreclose on Plaintiff's property because of the litigation
privilege.
Argument On Behalf Of Plaintiff
Counts I and II - Abuse of Process and Malicious Prosecution
Claims for abuse of process and malicious prosecution often overlap. The Fifth District
Court of Appeals outlined the elements of Abuse of Process and stated,
...A cause of action for abuse of process requires a plaintiffto plead that: "(1) the
defendant made an illegal, improper, or perverted use of process; (2) the
defendant had an ulterior motive or purpose in exercising the illegal, improper or
perverted process; and (3) the plaintiff was injured as a result of defendant's
action." Hardick v. Homol, 795 So. 2d 1107, 1111 n.2 (Fla. Sth DCA
2001) (citation omitted). "The usual abuse of process claim involves some form of
extortion—using a criminal prosecution to force payment of a civil debt." Bembry
v. City of Tallahassee, 19 Fla. L. Weekly Fed. D 661 (ND. Fla. Apr. 24,
2006)(citation omitted). ...
Verdon v. Song, 251 So. 3d 256, 258 (Fla. Sth DCA 2018).
The allegations in the Amended Complaint, the exhibits attached to the Amended
Complaint, the Affidavit of Victor Ortiz, and the court file in the case of Remington Master
Association Inc. v. Victor Ortiz et al, Case No. 2016 CA 002320, Circuit Court, Osceola County,
Florida establish that Plaintiff could prevail before a jury on the claims of abuse of process or
malicious civil prosecution in this case. A claim for abuse of process is appropriate when prior
to litigation, the offending party purposely makes false representations prior to initiating legal
proceedings and uses those proceedings to obtain a fraudulent result.
The Fifth District Court of Appeals described the elements of a claim for malicious civil
prosecution when it stated:
..-The only private remedy in this context allowed or recognized is the ancient
cause of action of malicious prosecution. This tort has its own special elements
and defenses. They are:
(1) A criminal or civil judicial proceeding has been commenced
against the plaintiff in the malicious prosecution action;
(2) the proceeding was instigated by the defendant in
the malicious prosecution action;
(3) the proceeding has ended in favor of the plaintiff in
the malicious prosecution action;
(4) the proceeding was instigated with malice;
(5) without probable cause and
(6) resulted in damage to the plaintiff in
the malicious prosecution action.
Kalt v. Dollar Rent-A-Car, 422 So.2d 1031, 1032 (Fla. 3d DCA 1982). Ifall of
these elements of malicious prosecution are properly pleaded in a complaint, the
suit must be allowed to proceed. Hopke v. O'Byrne, 148 So.2d 755 (Fla. lst DCA
1963). On the other hand, if one element is not sufficiently pleaded, the complaint
should be dismissed. Napper v. Krentzman, 102 So.2d 633 (Fla. 2d DCA 1958).
Wright v. Yurko, 446 So. 2d 1162, 1165 (Fla. 5th DCA 1984).
Defendant argues that by virtue of the litigation privilege it and its counsel can fabricate
an entire case out of false allegations and thereafter be insulated, so long as a possible time clock
expired. This is incorrect. The Florida Supreme Court made this clear in Debrincat v. Fischer,
217 So. 3d 68, 70 (Fla. 2017) when it stated,
This Court has never held that the litigation privilege protects a litigant from a
claim of malicious prosecution. And other district courts have recognized that the
litigation privilege does not act as a bar to a malicious prosecution
claim. See Olson v. Johnson, 961 So. 2d 356, 360-61 (Fla. 2d DCA 2007); Wright
v. Yurko, 446 So. 2d 1162, 1164-65 (Fla. 5th DCA 1984).
Id.
Additionally, the litigation privilege is limited to matters within and during the course of the
litigation and it does not extend to false statements prior to the initiation of legal proceedings.
Fridovich v. Fridovich, 598 So. 2d 65, 68 (Fla. 1992). In this case, the claims for abuse of
process and malicious prosecution began the moment Defendant filed the false Claim of Lien
and made obviously false statements regarding the service of notices to Plaintiff at a vacant lot.
Examples of where the litigation privilege did not prevent claims of abuse of process and
malicious civil prosecution include the following. In Am. Nat'l. Title & Escrow of Fla., Inc. v.
Guarantee Title & Trust Co., 810 So. 2d 996 (Fla. 4th DCA 2002), the Fourth District Court of
Appeals refused to dismiss on the basis of the litigation privilege where it was alleged that a title
company and other defendants conspired to give false information to law enforcement authorities
to have the plaintiff arrested and force a settlement with plaintiff regarding civil claims. The
Fourth District noted that the complained of acts were not submissions of pleadings pursuant to a
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court order, which would more likely involve the litigation privilege. Likewise, in the case of
Cedre v. Albertelli, 2018 U.S. Dist. Lexis 218851 (M.D. Fla. Oct. 31, 2018), the federal district
court noted that a law firm could not claim the litigation privilege for sending false notices to a
party prior to initiating civil litigation, unless the communications squarely fell in the category of
settlement negotiations.
Even more on point is the case of Moise v. Ola Condo. Ass'n, 314 So. 3d 708 (Fla. 3d
DCA 2021). In that case the homeowner alleged that the homeowner’s association’s attorney
filed a condominium lien foreclosure when the attorney knew that the association had no legal
right to proceed with the collection efforts, the filing of a claim of lien or the lien foreclosure
lawsuit. In Moise v. Ola Condo. Ass’n, supra, the homeowner’s association had assigned its
right to collect fees and assessments to Law Administration Services, LLC. (LAS). LAS then
filed a claim of lien regarding Moise’s condominium. Then, knowing that it had no right to file
an additional claim of lien, Ola Condo Ass’n hired an attorney to file an identical claim of lien
and proceed with a foreclosure lawsuit. When Moise sued Ola Condo Ass’n for the filing the
second false claim of lien and alleged violations of Section 817.535 of the Florida Statutes for
filing of a false document, the Fair Debt Collection Practices Act, and the Florida Consumer
Collection Practices Act, section 559.72(9), Florida Statutes, Ola Condo Ass’n asserted a claim
of litigation privilege. The Third District rejected the claim of litigation privilege and allowed
the case to go forward. The Third District’s holding should likewise apply in this case.
Counts III and IV — Gross Negligence and Fraud
The Amended Complaint, along with the attached and incorporated exhibits outline
Defendant’s acts of gross negligence and fraud. The affidavit of Victor Ortiz now submitted in
this case clearly provides examples of the testimony he would give at trial to confirm that
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Defendant acted with negligence and Defendant proceeded fraudulently. Further, although
Defendant’s counsel attempts to dissect the Amended Complaint to limit the number of examples
of grossly negligent acts or fraudulent, Defendant failed to address the allegations outlined in
paragraphs 37-57 of the Amended Complaint, which are supported by exhibits that Defendant
produced. Also Defendant’s counsel fails to address the allegations in paragraph 58 of the
Amended Complaint, which incorporate by reference Exhibit 7 — the demand letter sent to
Defendant’s counsel on July 25, 2018. In that demand letter, Plaintiff's counsel placed
Defendant’s former counsel on notice of at least 8 instances where Defendant was either grossly
negligent or outright fraudulent in the way Defendant proceeded to take Plaintiffs property.
And Plaintiff referred to portions of Exhibits | — 6 of the Amended Complaint in support of
those 8 instances. These are the following:
First, Defendant made no effort to locate the correct address of Victor Ortiz when the
deed for the vacant lot that he purchased clearly indicated that the vacant lot could not be Victor
Ortiz’s address. The Deed stated Mr. Ortiz’s address as “XXX Wortham lane, Kissimmee,
Florida 34744”, an unintelligible location.
Second, in the foreclosure lawsuit, Defendant’s counsel represented in the complaint
submitted to the court that a demand letter and notice had been sent to Mr. Ortiz regarding his
unpaid assessments pursuant to Section 720.3085(4)(a) of the Florida Statutes. However, it had
to be obvious to Defendant and Defendant’s counsel that the notice was not delivered to Victor
Ortiz because it was alleged that a certified letter was sent to a vacant lot. Further, Defendant
and Defendant’s counsel never corrected this misstatement to the trial court.
Third, in the foreclosure complaint at paragraph 10, Defendant’s counsel stated that he
signed and recorded a Claim of Lien on July 22, 2016, however, such a Claim of Lien could not
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have been delivered to the vacant lot. Yet, Defendant and Defendant’s counsel never fully and
truthfully informed the trial court of this.
Fourth, Exhibit 7, when read in conjunction with Exhibit 2 to the Amended Complaint,
reveals the false statements in the foreclosure suit complaint. The Claim of Lien attached to the
complaint in the foreclosure suit at its exhibit “D” indicated it was for $450.00 for “General
and/or Special Assessments through July 22, 2016”, however, that did not match with the notice
letter about notice of lien for a larger amount ($1,061.29) that was sent on November 30, 2015,
paragraph 9 and exhibit ““C” to the foreclosure suit complaint. Further, the inference is that at
some point, Defendant had to have received payment of some of the claimed assessments, and
therefore, Defendant should have known of a better address for Plaintiff Ortiz, instead of the
vacant lot.
Fifth, at paragraph 11 of the foreclosure complaint, Defendant’s counsel alleged that
Defendant sent a notice of intent to foreclose the claim of lien, as required by § 720.3085(5).
However, exhibit “E” to the foreclosure complaint shows that it was dated “January 20, 2016”
and references a lien of $1,907.41 and requires payment by “January 31, 2016”. However, the
claim of lien attached to the foreclosure complaint is dated July 22, 2016, a full 5 months after
the time of the notice of intent to foreclose a lien, and is for only $450.00, neither of which
match to paragraph 12 of the foreclosure complaint, where Defendant claimed it was owed
$3,127.61. Defendant clearly violated § 720.3085(5) and made such clearly false statements.
Sixth, the notice of intent to foreclose letter (exhibit “E” to the foreclosure complaint) did
not comply with § 720.3085(5) and was completely unintelligible.
Seventh, the letter notifying Victor Ortiz titled “Delinquent Assessment” was required to
be sent by certified mail, return receipt requested. However, on its face the letter indicated that
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it was sent by certified and regular U.S. mail. Further, if it had been sent by certified mail,
return receipt requested, then by no later than February 2016, it would have been returned to
Defendant and clear that Defendant was sending notices to a vacant lot.
Eighth, in the demand letter sent to Defendant’s counsel, Plaintiffs counsel gave notice
that the affidavit utilized for the motion for summary judgment did not match or coincide with
the claim of lien sued upon in the complaint. At that point, Plaintiff's counsel questioned
whether the motion for summary judgment in the foreclosure suit was not merely a mistake but
may have been a fraud upon the court.
Plaintiff submits that above 8 described instances, evidenced by the record, together with
the additional facts outlined in the Amended Complaint, and Victor Ortiz’s deposition provide
sufficient direct and circumstantial evidence that Defendant damaged Plaintiff through gross
negligence or fraud. Further, Defendant has submitted no evidence to contradict or dispute
Plaintiff's claims of gross negligence and fraud.
Counts V — Violation of F.S. 720.3085
Defendant argues that no claim can be made for a violation of § 720.3085. However,
Defendant fails to point out to the court that § 720.305 permits a civil cause of action for
violations of Chapter 720 of the Florida Statutes, including § 720.3085. Section 720.305 states,
...Each member and the member’s tenants, guests, and invitees, and each
association, are governed by, and must comply with, this chapter, the governing
documents of the community, and the rules of the association. Actions at law or in
equity, or both, to redress alleged failure or refusal to comply with these
provisions may be brought by the association or by any member against:
(a) The association;
(b) A member;
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(c) Any director or officer of an association who willfully and
knowingly fails to comply with these provisions; and
(d) Any tenants, guests, or invitees occupying a parcel or using the
common areas.
The prevailing party in any such litigation is entitled to recover reasonable
attorney fees and costs. A member prevailing in an action between the association
and the member under this section, in addition to recovering his or her reasonable
attorney fees, may recover additional amounts as determined by the court to be
necessary to reimburse the member for his or her share of assessments levied by
the association to fund its expenses of the litigation. This relief does not exclude
other remedies provided by law. This section does not deprive any person of any
other available right or remedy. ...
Id.
Section 720.3085(5) presently states the following:
...(5) The association may bring an action in its name to foreclose a lien for
unpaid assessments secured by a lien in the same manner that a mortgage of real
property is foreclosed and may also bring an action to recover a money judgment
for the unpaid assessments without waiving any claim of lien. The action to
foreclose the lien may not be brought until 45 days after the parcel owner has
been provided notice of the association’s intent to foreclose and collect the unpaid
amount. The notice must be given in the manner provided in paragraph (4)(b), and
the notice may not be provided until the passage of the 45 days required in
paragraph (4)(a). The notice must be in substantially the following form:
Id.
In 2014, prior to the foreclosure in this case, § 720.3085(5) stated:
...(5) The association may bring an action in its name to foreclose a lien for
unpaid assessments secured by a lien in the same manner that a mortgage of real
property is foreclosed and may also bring an action to recover a money judgment
for the unpaid assessments without waiving any claim of lien. The action to
foreclose the lien may not be brought until 45 days after the parcel owner has
been provided notice of the association’s intent to foreclose and collect the unpaid
amount. The notice must be given in the manner provided in paragraph (4)(b), and
the notice may not be provided until the passage of the 45 days required in
paragraph (4)(a). The notice must be in substantially the following form: ...
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Id.
When read in pari materia, it should be clear that Plaintiff has a right to sue for Defendant’s
failure to comply with the notice requirements of § 720.3085(5) and to obtain damages. See,
Rosenberg v. Metrowest Master Ass’n, 116 So. 3d 641 (Fla. Sth DCA 2013).
Count VI — Slander of Title
Slander of Title is an appropriate remedy for Plaintiff to request in this case. When a
false or exaggerated claim of lien is filed on an owner’s property, one of the most recognized
remedies for the owner is to seek redress by slander of title. Wells v. Oceanage Ass'n, 755 So.
2d 185 (Fla. 4th DCA 2000). The Fifth District Court of Appeals outlined the elements of
slander of title in Residential Communities of Am. v. Escondido Community Ass’n, 645 So. 2d
149 (Fla. 5th DCA 1994) where the Fifth District stated:
..-To establish the elements of slander of title, the plaintiff must prove that the
defendant has communicated to a third party a false statement disparaging title
which has caused the plaintiff actual damage. Gates v. Utsey, 177 So. 2d 486 (Fla.
1st DCA 1965). If a defendant establishes a defense of good faith, or other
privilege, however, a plaintiff must prove actual malice. Allington_Towers
Condominium North, Inc. v. Allington Towers North, Inc., 415 So. 2d 118, 119
(Fla. 4th DCA 1982). ...
Id. at 150.
Malice on the part of the Defendant in this case is presumed by Defendant’s submission of false
claims concerning the right to lien and foreclose on Plaintiff's vacant lot. Allington Towers
Condominium N. v. Allington Towers N., 415 So. 2d 118 (Fla. 4th DCA 1982). Plaintiff has
presented more than ample evidence for a jury to find that Defendant filed a claim of lien and
obtained a foreclosure by falsely claiming that it had given notice of the claim of lien to Plaintiff
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and that Plaintiff had defaulted. This is undisputed and therefore Defendant has no right to
summary judgment on this claim.
Count VII - Florida Deceptive and Unfair Trade Practices Act
Defendant argues that Plaintiff cannot proceed with a claim under the Florida Deceptive
and Unfair Trade Practices Act (FDUTPA) because Plaintiff is not a “consumer” as defined by
the act. Defendant further argues that its pursuit of foreclosure of Plaintiff's property is not
“trade or commerce” as defined by FDUTPA.
Recently the newly formed Sixth District Court of Appeals looked at the argument of
whether separate statutes can form the basis fora FDUTPA claim expressly or by implication.
Naples Motorcoach Resort Homeowners Association , Inc. v. Naples RV Resort, LLC, 2023 Fla.
App. Lexis 3083, 48 Fla. L. Weekly D 938, 2023 WL 3263049 (Fla. 6th DCA, May 5, 2023).
In 2015, and confirmed in 2017, FDUPTA’s § 501.203(3)(c) was identified to state that a
“violation of this part” (FDUTPA) may be based upon “...(c) any law, statute, rule, regulation or
ordinance which proscribes unfair methods of competition, or unfair, deceptive, or
unconscionable acts or practices. ...”
The District Court for the Southern District of Florida looked at this in the case of
Rebekah Kurimski v. Shell Oil Co., 2022 U.S. dist. Lexis 136040 (S. D. Fla. June 29, 2022) and
stated,
...A per se FDUTPA deceptive act is "a violation of '[a]ny law, statute, rule,
regulation, or ordinance which proscribes . . . unfair, deceptive, or unconscionable
acts or practices." Webber v. Bates Imagine Sols., Inc., 295 So.3d 841, 844 (Fla.
2d DCA 2020) (quoting Fla. Stat. § 501.203(c)). This can be established either
by a law that expressly refers to FDUTPA, or a law that "proscribes" unfair or
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deceptive acts of the type barred by FDUTPA. See id. at 846 & n.7 (discussing
cases) ...
Id. at 25.
In the case of Webber v. Bates Imagine Sols., Inc., 295 So. 3d 841 (Fla. 2d DCA 2020)
the Second District Court of Appeals cited to a variety of cases where other statutes or rules had
been found to create a per se FDUTPA violation. Plaintiff submits that the violation of §
720.3085(5) falls in the category of a per se FDUTPA violation in that requires the homeowner’s
association to not bring an action to foreclose unless it has given a delinquent assessment notice
in substantially the form outlined in the statute, and not before the owner has 45 days’ notice.
Void Judgment — Right to Proceed — Rule 1.540 and Additional Claims
Throughout the motion for summary judgment, Defendant’s main argument is that
Plaintiffis forever barred from seeking some form of reliefor remedy from the wrongly and
falsely obtained judgment. Primarily, Defendant argues that Rule 1.540 ofthe Florida Rules of
Civil Procedure required Plaintiffto file a motion to set aside the judgment within | year. That
may be correct for a “voidable” judgment. However, Defendant obtained a judgment of
foreclosure that is a “void” judgment. The judgment therefore had no legal basis for its
enforcement and Rule 1.540 allows for an attack of such a judgment at any time, including years
later. In the case of Hendrix v. Dep’t Stores Nat’l Bank, 177 So. 3d 288 (Fla. 4th DCA 2015)
the Fourth District Court of Appeals summarized the law as follows:
...Whether a judgment is void is a question of law reviewed de novo. See Infante
v. Vantage Plus Corp., 27 So. 3d 678, 680 (Fla. 3d DCA 2009). "A judgment is
void if, in the proceedings leading up to the judgment, there is [a] violation of the
due process guarantee of notice and an opportunity to be heard." Tannenbaum v.
Shea, 133 So. 3d 1056, 1061 (Fla. 4th DCA 2014) (internal quotations and
citations omitted); see also Viets v. Am. Recruiters Enterprises, Inc., 922 So. 2d
1090, 1096 (Fla. 4th DCA 2006) \a denial of due process "voids the default, and
derivatively the default judgment."). If a judgment is void, a party is not required
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to demonstrate excusable neglect or a meritorious defense. Mullne v. Sea-Tech
Constr., Inc., 84 So. 3d 1247, 1249 (Fla. 4th DCA 2012). ...
This was again confirmed by the Fourth District Court of Appeals in the case of Richard v. Bank
of Am., N.A. 258 So. 3d 485 (Fla. 4th DCA 2018) when the Fourth District stated,
...If a judgment is void it can be challenged at any time, and the movant does not
need to show excusable neglect, a meritorious defense, or due diligence in moving
to set it aside. Fla. R. Civ. P. 1.540(b)(4); Vercosa v. Fields, 174 So. 3d 550, 552
(Fla. 4th DCA 2015).
"A judgment is void when it is entered by a [**4] court lacking jurisdiction over
the subject matter of the case or jurisdiction over the person of the defendant or
where there is a violation of due process." State Farm Mut. Auto. Ins. Co. v.
Statsick, 231 So. 3d 528, 531 (Fla. 2d DCA 2017) (citing Tannenbaum v. Shea,
133 So. 3d 1056, 1061 (Fla. 4th DCA 2014)).
The bank suggests that a judgment is void only where the trial court lacks
personal or subject matter jurisdiction. However, this court has repeatedly
recognized that a judgment is also void where it violates the due process
guarantees of notice and an opportunity to be heard. Bank of Am., N.A. v. Fogel,
192 So. 3d 573, 575 (Fla. 4th DCA 2016) ("Ifa party's due process rights are
violated, the underlying final order is void."); Hendrix v. Dep't Stores Nat'l Bank,
177 So. 3d 288, 290 (Fla. 4th DCA 2015); Vercosa, 174 So. 3d at 552; Shiver v.
Wharton, 9 So. 3d 687, 690 (Fla. 4th DCA 2009); Tannenbaum, 133 So. 3d at
1061; Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090, 1095 (Fla. 4th DCA
2006). ...
Id. at 487-88.
In Ciotti v. Hubsch, 302 So. 3d 497 (Fla. 5th DCA 2020) the Fifth District Court of
Appeals recognized and cited Richard v. Bank of Am., N.A., supra when it found a final
judgment to be void because no notice and opportunity was provided to the party before entry of
a default judgment. In the case of Trainor v. Bulu2, 342 So. 3d 690 (Fla. 5th DCA 2022) the
Fifth District cited Ciotti v. Hubsch, supra, and again held that a default judgment should be set
aside when there was no notice to the Defendant.
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In this case, Plaintiff
was never notified of the filing of the lawsuit that resulted in the
foreclosure of his property. He was never notified of any of the pleadings, including the motion
for summary judgment, submitted by Defendant in the foreclosure lawsuit. Plaintiff was never
notified of the sale of the upcoming judicial sale of the property. And Plaintiff did not learn of
the foreclosure and sale of his property until May 2018, more than 1 year after his property was
taken. Affidavit of Victor Ortiz, June 26, 2018 (Docket No. 41(?) — filed 6/28/2023 at 4:27:09
pm).
Defendant has claimed that it has a right to submit false and misleading evidence to the
court to obtain a judgment and Defendant argues that the litigation privilege protects it from
being sued. That is contrary to law. In the case of Schlapper v. Maurer, 687 So. 2d 982 (Fla.
5th DCA 1997) the Fifth District Court of Appeals affirmed the trial court when it vacated a final
summary judgment obtained on the basis of an attorney’s misrepresentation and the litigation
privilege provided no defense.
Plaintiff
was never notified of any of the pleadings in the foreclosure suit and was not
notified of the foreclosure sale, Plaintiff
did not have the opportunity to ask the court to vacate
the final judgment of foreclosure and cancel the foreclosure sale. However, Defendant claims
that Plaintiff Ortiz has waived or is barred from seeking a remedy from this void foreclosure
judgment because of Rule 1.540(b) of the Florida Rules of Civil Procedure because Plaintiff
did
not contest the judgment until more than a year after it was entered. However, this argument
has no merit. When ajudgment is void, the 1-year limitation to request that the judgment be
vacated or set aside and its remedies does not apply. Rule 1.540(b)(4), F.R.C.P. In the case of
Wiggins v. Tigrent, Inc., 147 So. 3d 76 (Fla. 2nd DCA 2014) the Second District explained this
and stated:
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...Because the circuit court lacked personal jurisdiction over Mr. Wiggins, the
judgment against Mr. Wiggins was void. Accordingly, the circuit court erred in
denying Mr. Wiggins’ motion to vacate the judgment in accordance with Florida
Rule of Civil Procedure 1.540(b)(4). ...
Id. at 78
...Notably the one-year limitation in the rule on the time for filing the motion
does not apply to instances where the judgment sought to be vacated is void. ...
Id. at 82.
In the case of Weiss v. Mashantucket Pequot Gaming Enter., 935 So. 2d 69, 70-71 (Fla.
3d DCA 2006) the Third District explained this:
...Additionally, the fact that Shelly Weiss moved to vacate the entry of the default
final judgment approximately two years after the entry of the default
final judgment is irrelevant. A judgment entered without due service of process
is void. See Del Conte Enters., Inc. v. Thomas Publ’g Co., 711 So. 2d 1268 (Fla.
3d DCA 1998). Florida Rule of Civil Procedure 1.540(b)(4) permits motions for
relief from void judgments to be filed at any time. Thus, the fact that Shelly
Weiss moved to vacate over one year after the entry of the judgment is irrelevant.
Accordingly, because there was no valid service of process on Weiss, the default
final judgment is void. We therefore reverse the entry of the default
final judgment against Weiss and instruct the trial court to vacate the default
final judgment entered against him. ...
Id.
As confirmed by Victor Ortiz’s undisputed affidavit, the trial court in the foreclosure case
never had personal jurisdiction over him because he was never served with the lawsuit.
Therefore, the judgment entered was void and unenforceable. Likewise, Victor Ortiz was not
limited by the 1-year requirement to seek to set aside the judgment.
In the case of Wells Fargo Bank, N.A. v. Tan, 320 So. 3d 782 (Fla. 4th DCA 2021) the
Fourth District Court of Appeals addressed a fact pattern somewhat similar to this case. Ina
foreclosure action by a subsequent junior mortgagee, Wells Fargo, the first-in-time, superior
17
mortgage was served with the foreclosure complaint. However, the final judgment of
foreclosure for the junior, inferior mortgagee included a provision that purported to foreclose
Wells Fargo’s mortgage. More than 5 years after the foreclosure sale that resulted from the
entry of the judgment and after the property was resold 2 more times, Wells Fargo sought to
vacate the final judgment of foreclosure. Applying section 702.036 of the Florida Statutes, the
Fourth District stated the following:
...We agree with the circuit court that the final judgment was void. Wells Fargo's
recorded the mortgage on the property before First Magnus recorded its
mortgage. Therefore, Wells Fargo held an interest in the property senior to First
Magnus's interest. § 695.01(1), Fla. Stat.(2019); Argent Mortg. Co., LLC v.
Wachovia Bank, N.A., 52 So. 3d 796, 801 (Fla. Sth DCA 2010) ("Florida is, and
remains, a 'notice' jurisdiction, and notice controls the issue of
priority."). However, a junior lienholder has a right to enforce its lien
through foreclosure. See Bank of Am., N.A. v. Kipps Colony I Condo. Ass'n, Inc.,
201 So. 3d 670, 675 (Fla. 2d DCA 2016). But the junior lienholder cannot require
the senior lienholder to be a party to its foreclosure suit. /d. As in Kipps Colony,
the judgment here purported to foreclose the interest of the senior lienholder. That
it could not do. Because the judgment for First Magnus sought to foreclose the
interest of the senior lienholder, it is void. /d. at 676 ("[T]he judgment is void"
and "the final judgment is legally ineffective and a nullity, creating no binding
obligation."); see also Cone Bros. Constr. Co. v. Moore, 141 Fla. 420, 193 So.
288 (Fla. 1940).
The circuit court correctly concluded that the judgment is void. Yet it then
considered whether Wells Fargo sought to vacate the judgment in a reasonable
time. It erred in doing so as "the passage oftime cannot make valid that which has
been void from the beginning." ML. Builders, Inc. v. Reserve Devs., LLP, 769 So.
2d 1079, 1082 (Fla. 4th DCA 2000) (quoting Ramagli Realty Co. v. Craver, 121
So. 2d 648, 654 (Fla. 1960), disapproved on other grounds by Shell v. State Road
Dep't of Fla., 135 So. 2d 857 (Fla. 1961)). When a judgment is void, there is
“almost no time limit" to move to vacate. Citibank, N.A. v. Villanueva, 174 So. 3d
612, 614 (Fla. 4th DCA 2015) (citation omitted); see also Kathleen G. Kozinski,
P.A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013) (a party may "move
to vacate [a void judgment] at any time"). ...
Id. at 784
18
At that time, because Wells Fargo had been served with the foreclosure lawsuit, its remedy was
limited as a “claim for monetary relief”, and the Fourth District so concluded when it stated,
...The circuit court correctly concluded the final judgment is void but erred
when it determined Wells Fargo's delay in seeking to vacate the judgment was
unreasonable. Yet we must affirm because section 702.036, Florida Statutes
(2019), precluded the court from granting relief "that adversely affects the quality
and character of title.". While we affirm the circuit court's order, we note that the
statute requires the court to treat the motion challenging the final judgment as a
"claim for monetary relief." To the extent applicable, the court must do so on
remand. We express no opinion on any such claim. ...
Id. at 786
The Fourth District also noted at footnote 2 that, “... The judgment would also be void if
an interest holder was not served with the complaint. But, as noted, in that situation the statute
would not apply. § 702.036(1)(a)(1), Fla. Stat. ...”. Jd. This meant that if Wells Fargo had not
been served with the complaint then it would have been entitled to vacate the judgment and the
foreclosure sale. Indeed, this was the holding in the case of 90 CWELT-2008 LLC v. Yacht
Club at Portofino Condo. Ass’n, 245 So. 3d 925 (Fla. 3d DCA 2018), where the Third District
recognized that vacating the foreclosure sale and certificate of title is a logical extension and
remedy of a finding of a void judgment. In that case, the mortgagee had not been served with
the lawsuit and 8 months after the foreclosure sale the mortgagee successfully sought to vacate
the final judgment and foreclosure sale. When the purchaser at the foreclosure sale appealed and
argued that the mortgagee was entitled only to monetary relief, the Third District made clear the
following:
...We find no merit in CWELT's remaining argument, directed to the order
vacating the certificates of sale and title. Although it is true that a trial court "may
not grant relief that adversely affects the quality of the title to the property" where
a bona fide purchaser has acquired the property in a foreclosure sale (see section
702.036, Fla. Stat. (2017)), this applies only where the "party seeking relief from
19
the final judgment of foreclosure of the mortgage was properly served in the
foreclosure lawsuit as provided in chapter 48 or chapter 49." /d. (Emphasis
added.) See also Demars v. Vill. of Sandalwood Lakes Homeowners Ass'n, Inc.,
625 So. 2d 1219, 1222 (Fla. 4th DCA 1993) (holding that a bona fide purchaser
retains the title where the final judgment is voidable, not where it is
void). Compare Nationstar Mortg., LLC v. Diaz, 227 So. 3d 726 (Fla. 3d DCA
2017). In the instant case, the trial court vacated the final judgment upon a
determination that the judgment was void for lack of service of process upon JP
Morgan, and "[iJt is well settled that a judgment entered without due service of
process is void." Del Conte Enters., Inc. v. Thomas Publ'g Co., 711 So. 2d 1268,
1269 (Fla. 3d DCA 1998). See also Castro v. Charter Club, Inc., 114 So. 3d 1055
(Fla. 3d DCA 2013); Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So. 3d
1097 (Fla. 3d DCA 2011). Therefore, and as the trial court correctly
concluded, section 702.036 is inapplicable and CWELT's reliance upon it
unwarranted. ...°
Id. at 927.
Defendant may attempt to argue that Wells Fargo Bank, N.A. v. Tan, supra, and CWELT-
2008 LLC v. Yacht Club at Portofino Condo. Ass’n, supra, are not applicable to this case because
the claims filed by Wells Fargo and JP Morgan were permitted under § 702.036 as mortgagees of
public record and this case revolves around a claim of lien. Section 702.036 was enacted in
2013, and until 2 days ago, July 1, 2023, the statute provided that a mortgagee could sue to
vacate a void judgment and recover monetary compensation or vacate the foreclosure sale, as
appropriate. However, § 702.036 did not authorize a suit for damages because of improperly
assessed homeowner’s association’s liens. However, effective July 1, 2023, § 702.036 has
been amended to allow Plaintiff and similarly situated individuals to seek monetary damages or
to vacate the foreclosure sale regarding “other lien[s]”. There is no longer a question of the
right of Plaintiffto seek to seek monetary damages or pursue a remedy to set aside the
foreclosure sale. More importantly, § 702.036 now authorizes Plaintiffto obtain reliefto set
aside the foreclosure sale and Certificate of Title issued by Osceola County and to reinstate his
ownership. Likewise, since Plaintiff's case has been in the “pipeline” for several years, the new
20
amendment to § 702.036 can now be utilized to afford Plaintiff
his proper remedy. See,
D'Aquisto v. Costco Wholesale Corp., 816 So. 2d 1231 (Fla. 5th DCA 2002).
Based on the 2023 amendment to § 702.036, effective 2 days ago, Plaintiff is now legally
entitled to seek monetary damages for the void foreclosure of his property and Plaintiff can also
seek to set aside the foreclosure sale. As such, Plaintiff is submitting contemporaneous with this
response a motion to continue the case and to allow for Plaintiffto further amend the complaint
to seek redress under § 702.036, and if necessary, to add all necessary subsequent purchasers or
owners of the property at issue in order for Plaintiffto obtain the proper remedy that he is now
permitted under Florida law.
Further, it is also now apparent to Plaintiff that he may have a justiciable civil claim for
violation of Section 817.535(8)(a) of the Florida Statutes, which states, “...(a) Any person
adversely affected by an instrument filed in the official record which contains a materially false,
fictitious, or fraudulent statement or representation has a civil cause of action under this section
without regard to whether criminal charges are pursued under section (2). ...” Jd. see also, Moise
v. Ola Condo. Ass'n, supra. It is likewise apparent that a specific claim for violation ofthe
Florida Consumer Collection Practices Act, Section 559.72(9) because the act states,
...In collecting consumer debts, no person shall:
... (9) Claim, attempt, or threaten to enforce a debt when such person knows that
the debt is not legitimate, or assert the existence of some other legal right when
such person knows that the right does not exist. ...
Id., see also Moise v. Ola Condo. Ass’n, supra.
Conclusion
In conclusion, Plaintiff submits that Defendant’s Motion For Summary Judgment should
21
be denied as to all counts of the Amended Complaint. Further, that in light of the most recent
changes to Section 702.036 of the Florida Statutes, Plaintiff should be allowed the opportunity to
further amend the complaint in order to seek the remedy of vacating the foreclosure sale and
returning title of the property at issue to Plaintiff Victor Ortiz, and if appropriate to further
amend the complaint to include claims for Section 817.535(8)(a) of the Florida Statutes and the
Florida Consumer Collection Practices Act, Section 559.72(9).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this document has been furnished through the Florida E-
filing Portal and should be served to Karen Wonsetler, and Sarah Webner, Wonsetler & Webner,
P.A., attorney for Defendant Remington Master Homeowners Association at
pleadings@kwpalaw.comand office@kwpalaw.com this Sth day of July 2023.
/s/Dennis Wells
Dennis Wells
Webb & Wells, P.A.
P.O. Box 915432
Longwood, Florida 32779
(407) 865 5600
Florida Bar No.: 368504
Primary Email: denniswells2@icloud.com
Attorney for Plaintiff
22
Preview
Filing # 176704026 E-Filed 07/05/2023 11:50:26 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL ACTION NO: 2019 CA 000367 OC DIVISION: 22 VICTOR ORTIZ, Plaintiff, VS. REMINGTON MASTER HOMEOWNERS ASSOCIATION, INC., Defendant. / RESPONSE TO MOTION FOR SUMMARY JUDGMENT PLAINTIFF, VICTOR ORTIZ, by and through the undersigned counsel, hereby submits this response to the Motion For Summary Judgment filed by Defendant REMINGTON MASTER HOMEOWNERS ASSOCIATION, INC., and Plaintiff states the following: Statement of Procedure and Facts Defendant sued Plaintiffto obtain a judgment for allegedly unpaid homeowners association fees, and to foreclose on Plaintiff's vacant lot that Plaintiff had purchased for $38,000 in September 2015. On November 30, 2015, Defendant issued a Notice of Intent To Record A Claim Of Lien on Plaintiffs property for unpaid maintenance fees, and allegedly sent the notice to Plaintiffs “vacant lot”. Even though Defendant never confirmed that it properly noticed or served Plaintiff, Defendant proceeded with a lawsuit in September 2016 to obtain a money judgment and foreclose on a Claim of Lien it filed in July 2016. Defendant was fully aware that the address it had for Plaintiff was a vacant lot, and Defendant learned that it could not obtain personal service of any lawsuit upon Plaintiffat this vacant lot within Defendant’s subdivision. In fact, Plaintiff has now learned that Defendant attempted to serve and notify Plaintiff at the completely wrong address. Throughout the foreclosure process and litigation, Defendant claimed it was sending notices to “2714 Wortham Lane”, when in reality the vacant lot that Plaintiff owned was located at what is known as “2713 Wortham Lane”, a separate vacant corner lot, diagonally across the street from Plaintiff's lot. Yet, Defendant still proceeded with the lawsuit and falsely claimed to the trial court that Defendant had given notice to Plaintiff at the correct property. And when Defendant could not serve Plaintiffat the “vacant lot”, Defendant later claimed to the court that it served Plaintiff at an address in Wellington, Florida. However, Plaintiff has never lived in Wellington, Florida and he was never served with the complaint. Refusing to recognize that it had not served Plaintiff with the foreclosure lawsuit, Defendant still proceeded to make false representations to the court in order to obtain a judgment, and Defendant repeatedly claimed it was sending copies of pleadings to Plaintiff in Wellington, Florida. However, Defendant was sending copies of any and all pleadings to the wrong person at the wrong address. Therefore, Defendant did not provide notice to Plaintiff and did not legally serve Plaintiff with the lawsuit as required by Florida law. Defendant obtained a final judgment based on additional false representations to the trial court, and on or March 1, 2017, a judicial foreclosure sale took place and Plaintiff's property was sold to a third party, Sebastien Szymezak for $7,501. The Clerk of the Court for Osceola County issued a Certificate of Title on March 14, 2017, recorded at Book 5116, Page 2768 of the Osceola County records. In May 2018, Plaintiff first learned of the lawsuit and foreclosure sale. On June 26, 2018, Plaintiff signed under oath an affidavit stating that he had never been served with the foreclosure lawsuit filed by Defendant and had not been served with any prior 2 notices, pleadings, nor the notice of the judicial foreclosure sale. On July 20, 2018, Plaintiff's counsel sent a demand letter to counsel for Defendant and Plaintiffs counsel listed the false representations that Defendant made in order to obtain its judgment. Defendant still refused to address Plaintiff's concerns and denied that it obtained a void judgment. On January 30, 2019, Plaintiff filed a Complaint for Declaratory Judgment against Plaintiff in this case. Plaintiff listed Defendant’s false representations that Defendant used to obtain a judgment of foreclosure and Plaintiff asked the trial court to enter a Declaratory Judgment and provide supplemental relief in the event the trial court found that there were grounds to unwind the foreclosure sale or award damages to Plaintiff for the false misrepresentations that Defendant made to obtain the judgment of foreclosure. The final judgment in the foreclosure suit, Remington Master Association Inc. v. Victor Ortiz et al, Case No. 2016 CA 002320, Circuit Court, Osceola County, Florida, had been in place for more than 1 year after Plaintiff was made aware of the foreclosure. So, because Section 45.031(6) of the Florida Statutes stated, “‘...When the certificate of title is filed the sale shall stand confirmed, and title to the property shall pass to the purchaser named in the certificate without the necessity of any further proceedings... ” , Plaintiff believed that a suit for Declaratory Judgment was appropriate. Likewise, Plaintiff believed that Section 45.0315 terminated his right of redemption once the Certificate of Sale was issued. Therefore, Plaintiff believed that a suit for Declaratory Judgment was appropriate. In December 2021, this court heard a motion to dismiss the Complaint for Declaratory Judgment, and on January 3, 2022, the court issued an order dismissing the complaint without prejudice, allowing Plaintiffto file an amended complaint and submit claims for damages and appropriate remedies. On January 31, 2022, Plaintiff filed the Amended Complaint where 3 Plaintiff again outlined Defendant’s false claims and efforts to obtain a foreclosure sale of Plaintiff's property. Noting that Plaintiff may not have had a remedy to set aside the foreclosure sale and obtain return of Plaintiff's property, Plaintiff sued Defendant for Abuse of Process (Count I), Malicious Civil Prosecution (Count II), Gross Negligence (Count III), Fraud (Count IV), Violation of F.S. 720.3085 (Count V), Slander of Title (Count VI), and Florida Deceptive and Unfair Trade Practices Act (Count VII). Defendant has now filed a Motion For Summary Judgment and argued that Plaintiff has no legal right to sue Defendant because none of the above claims are justiciable. Defendant further argues that Plaintiff has no right to seek redress to set aside the judgment of foreclosure because the time for seeking redress to set aside the judgment on the basis of fraud, mistake, or excusable neglect under Rule 1.540 of the Florida Rules of Civil Procedure expired before Plaintiff filed this lawsuit. Further, Defendant claims that it could make a series of false statements and pleadings in order to foreclose on Plaintiff's property because of the litigation privilege. Argument On Behalf Of Plaintiff Counts I and II - Abuse of Process and Malicious Prosecution Claims for abuse of process and malicious prosecution often overlap. The Fifth District Court of Appeals outlined the elements of Abuse of Process and stated, ...A cause of action for abuse of process requires a plaintiffto plead that: "(1) the defendant made an illegal, improper, or perverted use of process; (2) the defendant had an ulterior motive or purpose in exercising the illegal, improper or perverted process; and (3) the plaintiff was injured as a result of defendant's action." Hardick v. Homol, 795 So. 2d 1107, 1111 n.2 (Fla. Sth DCA 2001) (citation omitted). "The usual abuse of process claim involves some form of extortion—using a criminal prosecution to force payment of a civil debt." Bembry v. City of Tallahassee, 19 Fla. L. Weekly Fed. D 661 (ND. Fla. Apr. 24, 2006)(citation omitted). ... Verdon v. Song, 251 So. 3d 256, 258 (Fla. Sth DCA 2018). The allegations in the Amended Complaint, the exhibits attached to the Amended Complaint, the Affidavit of Victor Ortiz, and the court file in the case of Remington Master Association Inc. v. Victor Ortiz et al, Case No. 2016 CA 002320, Circuit Court, Osceola County, Florida establish that Plaintiff could prevail before a jury on the claims of abuse of process or malicious civil prosecution in this case. A claim for abuse of process is appropriate when prior to litigation, the offending party purposely makes false representations prior to initiating legal proceedings and uses those proceedings to obtain a fraudulent result. The Fifth District Court of Appeals described the elements of a claim for malicious civil prosecution when it stated: ..-The only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution. This tort has its own special elements and defenses. They are: (1) A criminal or civil judicial proceeding has been commenced against the plaintiff in the malicious prosecution action; (2) the proceeding was instigated by the defendant in the malicious prosecution action; (3) the proceeding has ended in favor of the plaintiff in the malicious prosecution action; (4) the proceeding was instigated with malice; (5) without probable cause and (6) resulted in damage to the plaintiff in the malicious prosecution action. Kalt v. Dollar Rent-A-Car, 422 So.2d 1031, 1032 (Fla. 3d DCA 1982). Ifall of these elements of malicious prosecution are properly pleaded in a complaint, the suit must be allowed to proceed. Hopke v. O'Byrne, 148 So.2d 755 (Fla. lst DCA 1963). On the other hand, if one element is not sufficiently pleaded, the complaint should be dismissed. Napper v. Krentzman, 102 So.2d 633 (Fla. 2d DCA 1958). Wright v. Yurko, 446 So. 2d 1162, 1165 (Fla. 5th DCA 1984). Defendant argues that by virtue of the litigation privilege it and its counsel can fabricate an entire case out of false allegations and thereafter be insulated, so long as a possible time clock expired. This is incorrect. The Florida Supreme Court made this clear in Debrincat v. Fischer, 217 So. 3d 68, 70 (Fla. 2017) when it stated, This Court has never held that the litigation privilege protects a litigant from a claim of malicious prosecution. And other district courts have recognized that the litigation privilege does not act as a bar to a malicious prosecution claim. See Olson v. Johnson, 961 So. 2d 356, 360-61 (Fla. 2d DCA 2007); Wright v. Yurko, 446 So. 2d 1162, 1164-65 (Fla. 5th DCA 1984). Id. Additionally, the litigation privilege is limited to matters within and during the course of the litigation and it does not extend to false statements prior to the initiation of legal proceedings. Fridovich v. Fridovich, 598 So. 2d 65, 68 (Fla. 1992). In this case, the claims for abuse of process and malicious prosecution began the moment Defendant filed the false Claim of Lien and made obviously false statements regarding the service of notices to Plaintiff at a vacant lot. Examples of where the litigation privilege did not prevent claims of abuse of process and malicious civil prosecution include the following. In Am. Nat'l. Title & Escrow of Fla., Inc. v. Guarantee Title & Trust Co., 810 So. 2d 996 (Fla. 4th DCA 2002), the Fourth District Court of Appeals refused to dismiss on the basis of the litigation privilege where it was alleged that a title company and other defendants conspired to give false information to law enforcement authorities to have the plaintiff arrested and force a settlement with plaintiff regarding civil claims. The Fourth District noted that the complained of acts were not submissions of pleadings pursuant to a 6 court order, which would more likely involve the litigation privilege. Likewise, in the case of Cedre v. Albertelli, 2018 U.S. Dist. Lexis 218851 (M.D. Fla. Oct. 31, 2018), the federal district court noted that a law firm could not claim the litigation privilege for sending false notices to a party prior to initiating civil litigation, unless the communications squarely fell in the category of settlement negotiations. Even more on point is the case of Moise v. Ola Condo. Ass'n, 314 So. 3d 708 (Fla. 3d DCA 2021). In that case the homeowner alleged that the homeowner’s association’s attorney filed a condominium lien foreclosure when the attorney knew that the association had no legal right to proceed with the collection efforts, the filing of a claim of lien or the lien foreclosure lawsuit. In Moise v. Ola Condo. Ass’n, supra, the homeowner’s association had assigned its right to collect fees and assessments to Law Administration Services, LLC. (LAS). LAS then filed a claim of lien regarding Moise’s condominium. Then, knowing that it had no right to file an additional claim of lien, Ola Condo Ass’n hired an attorney to file an identical claim of lien and proceed with a foreclosure lawsuit. When Moise sued Ola Condo Ass’n for the filing the second false claim of lien and alleged violations of Section 817.535 of the Florida Statutes for filing of a false document, the Fair Debt Collection Practices Act, and the Florida Consumer Collection Practices Act, section 559.72(9), Florida Statutes, Ola Condo Ass’n asserted a claim of litigation privilege. The Third District rejected the claim of litigation privilege and allowed the case to go forward. The Third District’s holding should likewise apply in this case. Counts III and IV — Gross Negligence and Fraud The Amended Complaint, along with the attached and incorporated exhibits outline Defendant’s acts of gross negligence and fraud. The affidavit of Victor Ortiz now submitted in this case clearly provides examples of the testimony he would give at trial to confirm that 7 Defendant acted with negligence and Defendant proceeded fraudulently. Further, although Defendant’s counsel attempts to dissect the Amended Complaint to limit the number of examples of grossly negligent acts or fraudulent, Defendant failed to address the allegations outlined in paragraphs 37-57 of the Amended Complaint, which are supported by exhibits that Defendant produced. Also Defendant’s counsel fails to address the allegations in paragraph 58 of the Amended Complaint, which incorporate by reference Exhibit 7 — the demand letter sent to Defendant’s counsel on July 25, 2018. In that demand letter, Plaintiff's counsel placed Defendant’s former counsel on notice of at least 8 instances where Defendant was either grossly negligent or outright fraudulent in the way Defendant proceeded to take Plaintiffs property. And Plaintiff referred to portions of Exhibits | — 6 of the Amended Complaint in support of those 8 instances. These are the following: First, Defendant made no effort to locate the correct address of Victor Ortiz when the deed for the vacant lot that he purchased clearly indicated that the vacant lot could not be Victor Ortiz’s address. The Deed stated Mr. Ortiz’s address as “XXX Wortham lane, Kissimmee, Florida 34744”, an unintelligible location. Second, in the foreclosure lawsuit, Defendant’s counsel represented in the complaint submitted to the court that a demand letter and notice had been sent to Mr. Ortiz regarding his unpaid assessments pursuant to Section 720.3085(4)(a) of the Florida Statutes. However, it had to be obvious to Defendant and Defendant’s counsel that the notice was not delivered to Victor Ortiz because it was alleged that a certified letter was sent to a vacant lot. Further, Defendant and Defendant’s counsel never corrected this misstatement to the trial court. Third, in the foreclosure complaint at paragraph 10, Defendant’s counsel stated that he signed and recorded a Claim of Lien on July 22, 2016, however, such a Claim of Lien could not 8 have been delivered to the vacant lot. Yet, Defendant and Defendant’s counsel never fully and truthfully informed the trial court of this. Fourth, Exhibit 7, when read in conjunction with Exhibit 2 to the Amended Complaint, reveals the false statements in the foreclosure suit complaint. The Claim of Lien attached to the complaint in the foreclosure suit at its exhibit “D” indicated it was for $450.00 for “General and/or Special Assessments through July 22, 2016”, however, that did not match with the notice letter about notice of lien for a larger amount ($1,061.29) that was sent on November 30, 2015, paragraph 9 and exhibit ““C” to the foreclosure suit complaint. Further, the inference is that at some point, Defendant had to have received payment of some of the claimed assessments, and therefore, Defendant should have known of a better address for Plaintiff Ortiz, instead of the vacant lot. Fifth, at paragraph 11 of the foreclosure complaint, Defendant’s counsel alleged that Defendant sent a notice of intent to foreclose the claim of lien, as required by § 720.3085(5). However, exhibit “E” to the foreclosure complaint shows that it was dated “January 20, 2016” and references a lien of $1,907.41 and requires payment by “January 31, 2016”. However, the claim of lien attached to the foreclosure complaint is dated July 22, 2016, a full 5 months after the time of the notice of intent to foreclose a lien, and is for only $450.00, neither of which match to paragraph 12 of the foreclosure complaint, where Defendant claimed it was owed $3,127.61. Defendant clearly violated § 720.3085(5) and made such clearly false statements. Sixth, the notice of intent to foreclose letter (exhibit “E” to the foreclosure complaint) did not comply with § 720.3085(5) and was completely unintelligible. Seventh, the letter notifying Victor Ortiz titled “Delinquent Assessment” was required to be sent by certified mail, return receipt requested. However, on its face the letter indicated that 9 it was sent by certified and regular U.S. mail. Further, if it had been sent by certified mail, return receipt requested, then by no later than February 2016, it would have been returned to Defendant and clear that Defendant was sending notices to a vacant lot. Eighth, in the demand letter sent to Defendant’s counsel, Plaintiffs counsel gave notice that the affidavit utilized for the motion for summary judgment did not match or coincide with the claim of lien sued upon in the complaint. At that point, Plaintiff's counsel questioned whether the motion for summary judgment in the foreclosure suit was not merely a mistake but may have been a fraud upon the court. Plaintiff submits that above 8 described instances, evidenced by the record, together with the additional facts outlined in the Amended Complaint, and Victor Ortiz’s deposition provide sufficient direct and circumstantial evidence that Defendant damaged Plaintiff through gross negligence or fraud. Further, Defendant has submitted no evidence to contradict or dispute Plaintiff's claims of gross negligence and fraud. Counts V — Violation of F.S. 720.3085 Defendant argues that no claim can be made for a violation of § 720.3085. However, Defendant fails to point out to the court that § 720.305 permits a civil cause of action for violations of Chapter 720 of the Florida Statutes, including § 720.3085. Section 720.305 states, ...Each member and the member’s tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against: (a) The association; (b) A member; 10 (c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and (d) Any tenants, guests, or invitees occupying a parcel or using the common areas. The prevailing party in any such litigation is entitled to recover reasonable attorney fees and costs. A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. This section does not deprive any person of any other available right or remedy. ... Id. Section 720.3085(5) presently states the following: ...(5) The association may bring an action in its name to foreclose a lien for unpaid assessments secured by a lien in the same manner that a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for the unpaid assessments without waiving any claim of lien. The action to foreclose the lien may not be brought until 45 days after the parcel owner has been provided notice of the association’s intent to foreclose and collect the unpaid amount. The notice must be given in the manner provided in paragraph (4)(b), and the notice may not be provided until the passage of the 45 days required in paragraph (4)(a). The notice must be in substantially the following form: Id. In 2014, prior to the foreclosure in this case, § 720.3085(5) stated: ...(5) The association may bring an action in its name to foreclose a lien for unpaid assessments secured by a lien in the same manner that a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for the unpaid assessments without waiving any claim of lien. The action to foreclose the lien may not be brought until 45 days after the parcel owner has been provided notice of the association’s intent to foreclose and collect the unpaid amount. The notice must be given in the manner provided in paragraph (4)(b), and the notice may not be provided until the passage of the 45 days required in paragraph (4)(a). The notice must be in substantially the following form: ... 11 Id. When read in pari materia, it should be clear that Plaintiff has a right to sue for Defendant’s failure to comply with the notice requirements of § 720.3085(5) and to obtain damages. See, Rosenberg v. Metrowest Master Ass’n, 116 So. 3d 641 (Fla. Sth DCA 2013). Count VI — Slander of Title Slander of Title is an appropriate remedy for Plaintiff to request in this case. When a false or exaggerated claim of lien is filed on an owner’s property, one of the most recognized remedies for the owner is to seek redress by slander of title. Wells v. Oceanage Ass'n, 755 So. 2d 185 (Fla. 4th DCA 2000). The Fifth District Court of Appeals outlined the elements of slander of title in Residential Communities of Am. v. Escondido Community Ass’n, 645 So. 2d 149 (Fla. 5th DCA 1994) where the Fifth District stated: ..-To establish the elements of slander of title, the plaintiff must prove that the defendant has communicated to a third party a false statement disparaging title which has caused the plaintiff actual damage. Gates v. Utsey, 177 So. 2d 486 (Fla. 1st DCA 1965). If a defendant establishes a defense of good faith, or other privilege, however, a plaintiff must prove actual malice. Allington_Towers Condominium North, Inc. v. Allington Towers North, Inc., 415 So. 2d 118, 119 (Fla. 4th DCA 1982). ... Id. at 150. Malice on the part of the Defendant in this case is presumed by Defendant’s submission of false claims concerning the right to lien and foreclose on Plaintiff's vacant lot. Allington Towers Condominium N. v. Allington Towers N., 415 So. 2d 118 (Fla. 4th DCA 1982). Plaintiff has presented more than ample evidence for a jury to find that Defendant filed a claim of lien and obtained a foreclosure by falsely claiming that it had given notice of the claim of lien to Plaintiff 12 and that Plaintiff had defaulted. This is undisputed and therefore Defendant has no right to summary judgment on this claim. Count VII - Florida Deceptive and Unfair Trade Practices Act Defendant argues that Plaintiff cannot proceed with a claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) because Plaintiff is not a “consumer” as defined by the act. Defendant further argues that its pursuit of foreclosure of Plaintiff's property is not “trade or commerce” as defined by FDUTPA. Recently the newly formed Sixth District Court of Appeals looked at the argument of whether separate statutes can form the basis fora FDUTPA claim expressly or by implication. Naples Motorcoach Resort Homeowners Association , Inc. v. Naples RV Resort, LLC, 2023 Fla. App. Lexis 3083, 48 Fla. L. Weekly D 938, 2023 WL 3263049 (Fla. 6th DCA, May 5, 2023). In 2015, and confirmed in 2017, FDUPTA’s § 501.203(3)(c) was identified to state that a “violation of this part” (FDUTPA) may be based upon “...(c) any law, statute, rule, regulation or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices. ...” The District Court for the Southern District of Florida looked at this in the case of Rebekah Kurimski v. Shell Oil Co., 2022 U.S. dist. Lexis 136040 (S. D. Fla. June 29, 2022) and stated, ...A per se FDUTPA deceptive act is "a violation of '[a]ny law, statute, rule, regulation, or ordinance which proscribes . . . unfair, deceptive, or unconscionable acts or practices." Webber v. Bates Imagine Sols., Inc., 295 So.3d 841, 844 (Fla. 2d DCA 2020) (quoting Fla. Stat. § 501.203(c)). This can be established either by a law that expressly refers to FDUTPA, or a law that "proscribes" unfair or 13 deceptive acts of the type barred by FDUTPA. See id. at 846 & n.7 (discussing cases) ... Id. at 25. In the case of Webber v. Bates Imagine Sols., Inc., 295 So. 3d 841 (Fla. 2d DCA 2020) the Second District Court of Appeals cited to a variety of cases where other statutes or rules had been found to create a per se FDUTPA violation. Plaintiff submits that the violation of § 720.3085(5) falls in the category of a per se FDUTPA violation in that requires the homeowner’s association to not bring an action to foreclose unless it has given a delinquent assessment notice in substantially the form outlined in the statute, and not before the owner has 45 days’ notice. Void Judgment — Right to Proceed — Rule 1.540 and Additional Claims Throughout the motion for summary judgment, Defendant’s main argument is that Plaintiffis forever barred from seeking some form of reliefor remedy from the wrongly and falsely obtained judgment. Primarily, Defendant argues that Rule 1.540 ofthe Florida Rules of Civil Procedure required Plaintiffto file a motion to set aside the judgment within | year. That may be correct for a “voidable” judgment. However, Defendant obtained a judgment of foreclosure that is a “void” judgment. The judgment therefore had no legal basis for its enforcement and Rule 1.540 allows for an attack of such a judgment at any time, including years later. In the case of Hendrix v. Dep’t Stores Nat’l Bank, 177 So. 3d 288 (Fla. 4th DCA 2015) the Fourth District Court of Appeals summarized the law as follows: ...Whether a judgment is void is a question of law reviewed de novo. See Infante v. Vantage Plus Corp., 27 So. 3d 678, 680 (Fla. 3d DCA 2009). "A judgment is void if, in the proceedings leading up to the judgment, there is [a] violation of the due process guarantee of notice and an opportunity to be heard." Tannenbaum v. Shea, 133 So. 3d 1056, 1061 (Fla. 4th DCA 2014) (internal quotations and citations omitted); see also Viets v. Am. Recruiters Enterprises, Inc., 922 So. 2d 1090, 1096 (Fla. 4th DCA 2006) \a denial of due process "voids the default, and derivatively the default judgment."). If a judgment is void, a party is not required 14 to demonstrate excusable neglect or a meritorious defense. Mullne v. Sea-Tech Constr., Inc., 84 So. 3d 1247, 1249 (Fla. 4th DCA 2012). ... This was again confirmed by the Fourth District Court of Appeals in the case of Richard v. Bank of Am., N.A. 258 So. 3d 485 (Fla. 4th DCA 2018) when the Fourth District stated, ...If a judgment is void it can be challenged at any time, and the movant does not need to show excusable neglect, a meritorious defense, or due diligence in moving to set it aside. Fla. R. Civ. P. 1.540(b)(4); Vercosa v. Fields, 174 So. 3d 550, 552 (Fla. 4th DCA 2015). "A judgment is void when it is entered by a [**4] court lacking jurisdiction over the subject matter of the case or jurisdiction over the person of the defendant or where there is a violation of due process." State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So. 3d 528, 531 (Fla. 2d DCA 2017) (citing Tannenbaum v. Shea, 133 So. 3d 1056, 1061 (Fla. 4th DCA 2014)). The bank suggests that a judgment is void only where the trial court lacks personal or subject matter jurisdiction. However, this court has repeatedly recognized that a judgment is also void where it violates the due process guarantees of notice and an opportunity to be heard. Bank of Am., N.A. v. Fogel, 192 So. 3d 573, 575 (Fla. 4th DCA 2016) ("Ifa party's due process rights are violated, the underlying final order is void."); Hendrix v. Dep't Stores Nat'l Bank, 177 So. 3d 288, 290 (Fla. 4th DCA 2015); Vercosa, 174 So. 3d at 552; Shiver v. Wharton, 9 So. 3d 687, 690 (Fla. 4th DCA 2009); Tannenbaum, 133 So. 3d at 1061; Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090, 1095 (Fla. 4th DCA 2006). ... Id. at 487-88. In Ciotti v. Hubsch, 302 So. 3d 497 (Fla. 5th DCA 2020) the Fifth District Court of Appeals recognized and cited Richard v. Bank of Am., N.A., supra when it found a final judgment to be void because no notice and opportunity was provided to the party before entry of a default judgment. In the case of Trainor v. Bulu2, 342 So. 3d 690 (Fla. 5th DCA 2022) the Fifth District cited Ciotti v. Hubsch, supra, and again held that a default judgment should be set aside when there was no notice to the Defendant. 15 In this case, Plaintiff was never notified of the filing of the lawsuit that resulted in the foreclosure of his property. He was never notified of any of the pleadings, including the motion for summary judgment, submitted by Defendant in the foreclosure lawsuit. Plaintiff was never notified of the sale of the upcoming judicial sale of the property. And Plaintiff did not learn of the foreclosure and sale of his property until May 2018, more than 1 year after his property was taken. Affidavit of Victor Ortiz, June 26, 2018 (Docket No. 41(?) — filed 6/28/2023 at 4:27:09 pm). Defendant has claimed that it has a right to submit false and misleading evidence to the court to obtain a judgment and Defendant argues that the litigation privilege protects it from being sued. That is contrary to law. In the case of Schlapper v. Maurer, 687 So. 2d 982 (Fla. 5th DCA 1997) the Fifth District Court of Appeals affirmed the trial court when it vacated a final summary judgment obtained on the basis of an attorney’s misrepresentation and the litigation privilege provided no defense. Plaintiff was never notified of any of the pleadings in the foreclosure suit and was not notified of the foreclosure sale, Plaintiff did not have the opportunity to ask the court to vacate the final judgment of foreclosure and cancel the foreclosure sale. However, Defendant claims that Plaintiff Ortiz has waived or is barred from seeking a remedy from this void foreclosure judgment because of Rule 1.540(b) of the Florida Rules of Civil Procedure because Plaintiff did not contest the judgment until more than a year after it was entered. However, this argument has no merit. When ajudgment is void, the 1-year limitation to request that the judgment be vacated or set aside and its remedies does not apply. Rule 1.540(b)(4), F.R.C.P. In the case of Wiggins v. Tigrent, Inc., 147 So. 3d 76 (Fla. 2nd DCA 2014) the Second District explained this and stated: 16 ...Because the circuit court lacked personal jurisdiction over Mr. Wiggins, the judgment against Mr. Wiggins was void. Accordingly, the circuit court erred in denying Mr. Wiggins’ motion to vacate the judgment in accordance with Florida Rule of Civil Procedure 1.540(b)(4). ... Id. at 78 ...Notably the one-year limitation in the rule on the time for filing the motion does not apply to instances where the judgment sought to be vacated is void. ... Id. at 82. In the case of Weiss v. Mashantucket Pequot Gaming Enter., 935 So. 2d 69, 70-71 (Fla. 3d DCA 2006) the Third District explained this: ...Additionally, the fact that Shelly Weiss moved to vacate the entry of the default final judgment approximately two years after the entry of the default final judgment is irrelevant. A judgment entered without due service of process is void. See Del Conte Enters., Inc. v. Thomas Publ’g Co., 711 So. 2d 1268 (Fla. 3d DCA 1998). Florida Rule of Civil Procedure 1.540(b)(4) permits motions for relief from void judgments to be filed at any time. Thus, the fact that Shelly Weiss moved to vacate over one year after the entry of the judgment is irrelevant. Accordingly, because there was no valid service of process on Weiss, the default final judgment is void. We therefore reverse the entry of the default final judgment against Weiss and instruct the trial court to vacate the default final judgment entered against him. ... Id. As confirmed by Victor Ortiz’s undisputed affidavit, the trial court in the foreclosure case never had personal jurisdiction over him because he was never served with the lawsuit. Therefore, the judgment entered was void and unenforceable. Likewise, Victor Ortiz was not limited by the 1-year requirement to seek to set aside the judgment. In the case of Wells Fargo Bank, N.A. v. Tan, 320 So. 3d 782 (Fla. 4th DCA 2021) the Fourth District Court of Appeals addressed a fact pattern somewhat similar to this case. Ina foreclosure action by a subsequent junior mortgagee, Wells Fargo, the first-in-time, superior 17 mortgage was served with the foreclosure complaint. However, the final judgment of foreclosure for the junior, inferior mortgagee included a provision that purported to foreclose Wells Fargo’s mortgage. More than 5 years after the foreclosure sale that resulted from the entry of the judgment and after the property was resold 2 more times, Wells Fargo sought to vacate the final judgment of foreclosure. Applying section 702.036 of the Florida Statutes, the Fourth District stated the following: ...We agree with the circuit court that the final judgment was void. Wells Fargo's recorded the mortgage on the property before First Magnus recorded its mortgage. Therefore, Wells Fargo held an interest in the property senior to First Magnus's interest. § 695.01(1), Fla. Stat.(2019); Argent Mortg. Co., LLC v. Wachovia Bank, N.A., 52 So. 3d 796, 801 (Fla. Sth DCA 2010) ("Florida is, and remains, a 'notice' jurisdiction, and notice controls the issue of priority."). However, a junior lienholder has a right to enforce its lien through foreclosure. See Bank of Am., N.A. v. Kipps Colony I Condo. Ass'n, Inc., 201 So. 3d 670, 675 (Fla. 2d DCA 2016). But the junior lienholder cannot require the senior lienholder to be a party to its foreclosure suit. /d. As in Kipps Colony, the judgment here purported to foreclose the interest of the senior lienholder. That it could not do. Because the judgment for First Magnus sought to foreclose the interest of the senior lienholder, it is void. /d. at 676 ("[T]he judgment is void" and "the final judgment is legally ineffective and a nullity, creating no binding obligation."); see also Cone Bros. Constr. Co. v. Moore, 141 Fla. 420, 193 So. 288 (Fla. 1940). The circuit court correctly concluded that the judgment is void. Yet it then considered whether Wells Fargo sought to vacate the judgment in a reasonable time. It erred in doing so as "the passage oftime cannot make valid that which has been void from the beginning." ML. Builders, Inc. v. Reserve Devs., LLP, 769 So. 2d 1079, 1082 (Fla. 4th DCA 2000) (quoting Ramagli Realty Co. v. Craver, 121 So. 2d 648, 654 (Fla. 1960), disapproved on other grounds by Shell v. State Road Dep't of Fla., 135 So. 2d 857 (Fla. 1961)). When a judgment is void, there is “almost no time limit" to move to vacate. Citibank, N.A. v. Villanueva, 174 So. 3d 612, 614 (Fla. 4th DCA 2015) (citation omitted); see also Kathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013) (a party may "move to vacate [a void judgment] at any time"). ... Id. at 784 18 At that time, because Wells Fargo had been served with the foreclosure lawsuit, its remedy was limited as a “claim for monetary relief”, and the Fourth District so concluded when it stated, ...The circuit court correctly concluded the final judgment is void but erred when it determined Wells Fargo's delay in seeking to vacate the judgment was unreasonable. Yet we must affirm because section 702.036, Florida Statutes (2019), precluded the court from granting relief "that adversely affects the quality and character of title.". While we affirm the circuit court's order, we note that the statute requires the court to treat the motion challenging the final judgment as a "claim for monetary relief." To the extent applicable, the court must do so on remand. We express no opinion on any such claim. ... Id. at 786 The Fourth District also noted at footnote 2 that, “... The judgment would also be void if an interest holder was not served with the complaint. But, as noted, in that situation the statute would not apply. § 702.036(1)(a)(1), Fla. Stat. ...”. Jd. This meant that if Wells Fargo had not been served with the complaint then it would have been entitled to vacate the judgment and the foreclosure sale. Indeed, this was the holding in the case of 90 CWELT-2008 LLC v. Yacht Club at Portofino Condo. Ass’n, 245 So. 3d 925 (Fla. 3d DCA 2018), where the Third District recognized that vacating the foreclosure sale and certificate of title is a logical extension and remedy of a finding of a void judgment. In that case, the mortgagee had not been served with the lawsuit and 8 months after the foreclosure sale the mortgagee successfully sought to vacate the final judgment and foreclosure sale. When the purchaser at the foreclosure sale appealed and argued that the mortgagee was entitled only to monetary relief, the Third District made clear the following: ...We find no merit in CWELT's remaining argument, directed to the order vacating the certificates of sale and title. Although it is true that a trial court "may not grant relief that adversely affects the quality of the title to the property" where a bona fide purchaser has acquired the property in a foreclosure sale (see section 702.036, Fla. Stat. (2017)), this applies only where the "party seeking relief from 19 the final judgment of foreclosure of the mortgage was properly served in the foreclosure lawsuit as provided in chapter 48 or chapter 49." /d. (Emphasis added.) See also Demars v. Vill. of Sandalwood Lakes Homeowners Ass'n, Inc., 625 So. 2d 1219, 1222 (Fla. 4th DCA 1993) (holding that a bona fide purchaser retains the title where the final judgment is voidable, not where it is void). Compare Nationstar Mortg., LLC v. Diaz, 227 So. 3d 726 (Fla. 3d DCA 2017). In the instant case, the trial court vacated the final judgment upon a determination that the judgment was void for lack of service of process upon JP Morgan, and "[iJt is well settled that a judgment entered without due service of process is void." Del Conte Enters., Inc. v. Thomas Publ'g Co., 711 So. 2d 1268, 1269 (Fla. 3d DCA 1998). See also Castro v. Charter Club, Inc., 114 So. 3d 1055 (Fla. 3d DCA 2013); Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So. 3d 1097 (Fla. 3d DCA 2011). Therefore, and as the trial court correctly concluded, section 702.036 is inapplicable and CWELT's reliance upon it unwarranted. ...° Id. at 927. Defendant may attempt to argue that Wells Fargo Bank, N.A. v. Tan, supra, and CWELT- 2008 LLC v. Yacht Club at Portofino Condo. Ass’n, supra, are not applicable to this case because the claims filed by Wells Fargo and JP Morgan were permitted under § 702.036 as mortgagees of public record and this case revolves around a claim of lien. Section 702.036 was enacted in 2013, and until 2 days ago, July 1, 2023, the statute provided that a mortgagee could sue to vacate a void judgment and recover monetary compensation or vacate the foreclosure sale, as appropriate. However, § 702.036 did not authorize a suit for damages because of improperly assessed homeowner’s association’s liens. However, effective July 1, 2023, § 702.036 has been amended to allow Plaintiff and similarly situated individuals to seek monetary damages or to vacate the foreclosure sale regarding “other lien[s]”. There is no longer a question of the right of Plaintiffto seek to seek monetary damages or pursue a remedy to set aside the foreclosure sale. More importantly, § 702.036 now authorizes Plaintiffto obtain reliefto set aside the foreclosure sale and Certificate of Title issued by Osceola County and to reinstate his ownership. Likewise, since Plaintiff's case has been in the “pipeline” for several years, the new 20 amendment to § 702.036 can now be utilized to afford Plaintiff his proper remedy. See, D'Aquisto v. Costco Wholesale Corp., 816 So. 2d 1231 (Fla. 5th DCA 2002). Based on the 2023 amendment to § 702.036, effective 2 days ago, Plaintiff is now legally entitled to seek monetary damages for the void foreclosure of his property and Plaintiff can also seek to set aside the foreclosure sale. As such, Plaintiff is submitting contemporaneous with this response a motion to continue the case and to allow for Plaintiffto further amend the complaint to seek redress under § 702.036, and if necessary, to add all necessary subsequent purchasers or owners of the property at issue in order for Plaintiffto obtain the proper remedy that he is now permitted under Florida law. Further, it is also now apparent to Plaintiff that he may have a justiciable civil claim for violation of Section 817.535(8)(a) of the Florida Statutes, which states, “...(a) Any person adversely affected by an instrument filed in the official record which contains a materially false, fictitious, or fraudulent statement or representation has a civil cause of action under this section without regard to whether criminal charges are pursued under section (2). ...” Jd. see also, Moise v. Ola Condo. Ass'n, supra. It is likewise apparent that a specific claim for violation ofthe Florida Consumer Collection Practices Act, Section 559.72(9) because the act states, ...In collecting consumer debts, no person shall: ... (9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist. ... Id., see also Moise v. Ola Condo. Ass’n, supra. Conclusion In conclusion, Plaintiff submits that Defendant’s Motion For Summary Judgment should 21 be denied as to all counts of the Amended Complaint. Further, that in light of the most recent changes to Section 702.036 of the Florida Statutes, Plaintiff should be allowed the opportunity to further amend the complaint in order to seek the remedy of vacating the foreclosure sale and returning title of the property at issue to Plaintiff Victor Ortiz, and if appropriate to further amend the complaint to include claims for Section 817.535(8)(a) of the Florida Statutes and the Florida Consumer Collection Practices Act, Section 559.72(9). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of this document has been furnished through the Florida E- filing Portal and should be served to Karen Wonsetler, and Sarah Webner, Wonsetler & Webner, P.A., attorney for Defendant Remington Master Homeowners Association at pleadings@kwpalaw.comand office@kwpalaw.com this Sth day of July 2023. /s/Dennis Wells Dennis Wells Webb & Wells, P.A. P.O. Box 915432 Longwood, Florida 32779 (407) 865 5600 Florida Bar No.: 368504 Primary Email: denniswells2@icloud.com Attorney for Plaintiff 22