DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SKENDER HOTI and BEBA HOTI,
Appellants,
v.
U.S. BANK, N.A., NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY
AS LEGAL TITLE TRUSTEE FOR BCAT 2016-18TT,
Appellee.
No. 4D20-289
[May 6, 2020]
Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T.
Case No. 502015CA013534XXXXMB.
Arthur J. Morburger, Miami, for appellants.
Adam G. Schwartz of Fox McCluskey Bush Robison, PLLC, Stuart, for
appellee.
ON MOTION TO RELINQUISH JURISDICTION
KUNTZ, J.
The borrowers, Skender and Beba Hoti, appeal the circuit court’s order
denying their second amended motion for relief from the final judgment of
foreclosure under Florida Rule of Civil Procedure 1.540(b)(4). Among other
grounds, the borrowers argued the judgment should be vacated for lack of
jurisdiction because the circuit court entered the judgment after the case
had been removed to federal court. The circuit court denied the motion,
and the borrowers appealed. During this appeal, the lender moved to
relinquish jurisdiction, similarly arguing the foreclosure judgment is void
because it was entered when the circuit court lacked jurisdiction.
This opinion solely addresses the argument that the circuit court lacked
jurisdiction to enter the final judgment of foreclosure. When the circuit
court denied the motion for relief from judgment, it was bound to follow
this Court’s recent holding in Ricci v. Ventures Trust 2013-I-H-R by MCM
Capital Partners, LLC,
276 So. 3d 5 (Fla. 4th DCA), review denied, No.
SC19-1547,
2019 WL 7341587 (Fla. Dec. 30, 2019). Ricci analyzed the
effect of the filing of a notice of removal on pending state court proceedings.
Id. at 6. We held that the court should take no further action until remand:
[T]he proper course of action regarding an order entered after
notice of removal has been filed in the state court proceeding
and before entry of a remand order is that: (1) the trial court
and the parties take no action on the improperly issued state
court order until a remand order is entered; (2) the trial court
promptly vacate the order sua sponte or on motion of a party
after the remand order is entered; and (3) the trial court
immediately re-enter the vacated order with notice to the
parties after the remand order is entered.
Id. at 10. We also discussed the effect of the state court’s act of entering
an order after removal and whether that order is void or voidable.
Id. at
7-9. We stated that “[i]f Congress truly intended that any action taken by
the state court during the removal period is void, it would have used words
to that effect,”
id. at 8 (discussing 28 U.S.C. § 1446(d)), and that “a lack of
subject matter jurisdiction makes an order void, whereas a lack of case
jurisdiction generally renders an order voidable,”
id. at 8-9 (citation
omitted).
After we issued Ricci, the United States Supreme Court issued an
opinion addressing this issue. Roman Catholic Archdiocese of San Juan v.
Acevedo Feliciano,
140 S. Ct. 696 (2020). In that case, the Supreme Court
held that, under 28 U.S.C. § 1446(d), when the notice of removal is filed,
“[t]he state court ‘los[es] all jurisdiction over the case, and, being without
jurisdiction, its subsequent proceedings and judgment [are] not . . . simply
erroneous, but absolutely void.’”
Id. at 700 (alterations and omission in
original) (quoting Kern v. Huidekoper,
103 U.S. 485, 493 (1881)).
The lender asks that we relinquish jurisdiction to account for a change
in the law as a result of Acevedo Feliciano. The lender argues our opinion
in Ricci required the circuit court to treat the order entered on remand as
voidable while the more recent opinion from the United States Supreme
Court requires that it be found void.
It is true that the Supreme Court’s opinion requires us to find any order
entered by the state court after removal to be void. Acevedo
Feliciano, 140
S. Ct. at 700. But Ricci did not expressly conclude that an order entered
during remand was voidable and not void—though it did strongly imply
that conclusion.
See 276 So. 3d at 8-9 (“[A] lack of subject matter
jurisdiction makes an order void, whereas a lack of case jurisdiction
2
generally renders an order voidable.” (citing 14302 Marina San Pablo Place
SPE, LLC v. VCP-San Pablo, Ltd.,
92 So. 3d 320, 321 (Fla. 1st DCA 2012)
(Ray, J., concurring))).
Instead, in Ricci, we held that “we do not need to resolve” the apparent
conflict in the law on whether the order was void or voidable.
Id. at 9. And
we held that if a state court enters an order after removal, the court should
promptly vacate the order after the federal court remands the case.
Id. at
10. That is not inconsistent with the Supreme Court’s opinion in Acevedo
Feliciano.
So that there is no confusion, an order entered by a state court after
the filing of a notice of removal is void. Acevedo
Feliciano, 140 S. Ct. at
700. Both Ricci and Acevedo Feliciano require a court to vacate any such
order.
Here, the borrowers filed their notice of removal on September 22,
2017, and the federal court remanded the case one month later. But the
circuit court entered the judgment of foreclosure during the short period
between removal to the federal court and remand to the state court. As a
result, the court’s judgment is void. See Acevedo
Feliciano, 140 S. Ct. at
700.
So we grant the lender’s motion to relinquish jurisdiction in part. We
grant the motion to the extent it asks that we relinquish jurisdiction to the
circuit court to vacate the final judgment of foreclosure. But we deny the
motion to the extent it asks that we direct the circuit court to reenter the
final judgment on remand. After we dismiss this appeal for being moot,
the circuit court may consider whether to reenter the final judgment in the
first instance. See
Ricci, 276 So. 3d at 6 (“[O]ur reversal is without
prejudice for the trial court, sua sponte or upon motion, to immediately re-
enter the order after vacating it, with notice to the parties.” (second
emphasis added)).
We relinquish jurisdiction for ninety days for the circuit court to vacate
the final judgment of foreclosure. Within seven days of the court’s order
vacating the final judgment, the borrowers must file the order in this
Court, and this appeal will be dismissed.
Motion to relinquish jurisdiction granted in part, denied in part.
WARNER and KLINGENSMITH, JJ., concur.
* * *
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Not final until disposition of timely filed motion for rehearing.
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