Pino v. Bank of New York Mellon
Florida is well known for its “reset button” approach to a plaintiﬀ's right to take a voluntary dismissal under Rule 1.420(a), FL.R.Civ.P., especially in mortgage foreclosure cases. Rule 1.420(a) authorizes a plaintiﬀ to take one voluntary dismissal without prejudice, unless “otherwise stated in the notice or stipulation,” by serving “a notice of dismissal at any time before a hearing on a motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a non‐jury case to the court.” It has been widely accepted in Florida, that a plaintiﬀ has an absolute right to take one voluntary dismissal under Rule 1.420(a). However, the Florida Supreme Court recently certified the following question as one of great public importance from the Fourth District Court of Appeal in Pino v. Bank of New York Mellon, 57 So.3d 950, 952 (Fla. 4th DCA 2011):
Does a trial court have jurisdiction and authority under Rule 1.540(b), Fla.R.Civ.P., or under its inherent authority to grant relief from a voluntary dismissal where the motion alleges a fraud on the court in the proceedings but no aﬃrmative relief on behalf of the plaintiﬀ has been obtained from the court?
In October 2008, Bank of New York Mellon (“BNY”) filed a foreclosure action to foreclose a mortgage on real property owned by Roman Pino. BNY filed an amended complaint in February 2009. The assignment of mortgage attached to the amended complaint showed that MERS through its assignor, Countrywide Home Loans, Inc., assigned the note and mortgage to BNY. The assignment was executed on Sept. 19, 2008, 20 days before BNY filed the original complaint.
Pino filed a motion for sanctions pursuant to section 57.105, Florida Statutes, which alleged the unrecorded Assignment of Mortgage was fraudulently backdated and had been created with the intent to commit fraud on the court. Within the twenty‐one day safe harbor period under section 57.104(4), BNY served a notice of voluntary dismissal dated March 9, 2009, dismissing the foreclosure complaint without prejudice pursuant to Florida Rule of Civil Procedure 1.420(a)(1).
BNY re‐filed its foreclosure action on Aug. 13, 2009. Pino responded by filing a motion in the original, voluntarily dismissed case seeking to strike BNY's notice of voluntary dismissal on the ground of fraud on the court and to dismiss the action with prejudice as a sanction pursuant to Florida Rule of Civil Procedure 1.540(b). The trial court denied the motion to strike after Pino agreed that BNY had not obtained “aﬃrmative relief” prior to filing the notice of voluntary dismissal. The Fourth District Court of Appeal aﬃrmed the trial court's ruling.
The Florida Supreme Court answered the certified question in the negative and held that “when a defend‐ ant alleges fraud on the court as a basis for seeking to set aside a plaintiﬀ's voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiﬀ securing aﬃrmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from undoing the improperly obtained relief.”
The Florida Supreme Court found that since Pino conceded in the trial court level that BNY did not obtain aﬃrmative relief prior to the taking of the voluntary dismissal, that Pino was not entitled to relief under rule 1.540(b). The Supreme Court found that even if the assignment of mortgage attached to the amended complaint was fraudulently backdated, Pino would be unsuccessful because no aﬃrmative relief was obtained by BNY.
Despite aﬃrming the Fourth District's decision, the Florida Supreme Court asked the Civil Procedure Rules Committee to make a recommendation regarding whether the Rules of Civil Procedure should be amended to grant the trial court authority to deal with similar situations in the future.