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RISCH v. BANK OF AMERICA | FL 2DCA Reverses & Remands for an Evidentiary Hearing, FL Rule of Civil Procedure 1.540

RISCH v. BANK OF AMERICA | FL 2DCA Reverses & Remands for an Evidentiary Hearing, FL Rule of Civil Procedure 1.540


IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT


JANICE M. RISCH,
Appellant,

v.

BANK OF AMERICA, NATIONAL
ASSOCIATION, AS SUCCESSOR BY
MERGER TO LASALLE BANK, N.A. AS
TRUSTEE FOR ZUNI 2006-OA1,
Appellee.

Opinion filed August 3, 2011.

Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Lee County; Hugh
E. Starnes, Senior Judge.

EXCERPT:

Janice M. Risch appeals the trial court’s denial of her emergency motion for rehearing or, in the alternative, for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. The record shows that the trial court conducted a hearing on Ms. Risch’s motion; however, there was no evidence presented. Since Ms. Risch’s motion asserted allegations of misrepresentation, which might give rise to relief pursuant to rule 1.540(b)(3), and since she attached an affidavit and records which could support her claim, we reverse and remand for an evidentiary hearing. See S. Bell Tel. & Tel. Co. v. Welden, 483 So. 2d 487, 489 (Fla. 1st DCA 1986) (“[W]here the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”); see also Rosenthal v. Ford, 443 So. 2d 1077, 1078 (Fla. 2d DCA 1984) (“The  credibility of appellant’s allegations should only be determined by the trial court after an evidentiary hearing thereon.”).

Reversed and remanded.

SILBERMAN, C.J., and DAVIS, J., Concur.

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