Opinion
No. 1D14–1994.
04-22-2015
Kimberly L. GARNO and Ronald R. Wolfe And Associates, P.L., Appellant, v. BANK OF AMERICA, N.A., Successor by Merger to BAC Home Loans Servicing, L.P., and Sunder J. Aswani, etc., Poonam S. Aswani, etc., et al., Appellees.
Suzanne Barto Hill and Candy L. Messersmith of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellant. Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, AL, for Appellee Bank of America, N.A.
Suzanne Barto Hill and Candy L. Messersmith of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellant.
Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, AL, for Appellee Bank of America, N.A.
PER CURIAM.
Appellants appeal the trial court's order dismissing without prejudice the foreclosure action filed on behalf of their former client Bank of America against Appellees Sunder J. Aswani and Poonam S. Aswsani. The trial court's ground for dismissal was Appellant Garno's purported fraud on the court.
We agree with Appellant that she was denied her right to due process, because she was not provided with notice of the hearing leading to the dismissal and the trial court's findings of fraud on the court. See Dep't of Children & Families v. W.H., 109 So.3d 1269, 1270 (Fla. 1st DCA 2013) (holding that the lack of notice and lack of an evidentiary hearing violated the Department's right to due process).
We also agree that the record does not support the trial court's finding that Garno perpetrated a fraud on the court. "[F]raud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 252 (Fla. 1st DCA 2012). Here, nothing in the record supports a finding that Garno engaged in any act of deception, deliberate or otherwise.
Therefore, we reverse the order of dismissal and remand for the trial court to reinstate Bank of America's foreclosure action.
REVERSED and REMANDED with instructions.
THOMAS, CLARK, and WETHERELL, JJ., concur.