IN THE SUPREME COURT OF FLORIDA

CASE NO. SC13 - -o

FOURTH DCA CASE NO. 4D11-3038

HSBC BANK USA, NATIONAL ASSOCIATION,AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES, INC.,MORTGAGE LOAN TRUST, MORTGAGE PASS-THROUGHCERTIFICATES SERIES 2006-AR3

Plaintiff/Petitioner,

v.

MARIE NIXON, et al.

Defendants/Respondents./

JURISDICTIONAL BRIEF OF PETITIONER

ON DISCRETIONARY REVIEW FROlW A DECISION OF THE FOURTHDISTRfCT COBRT OF APPEAL

JUSTIN C. LETO, ESQ. THE LETO LAW FIRMFla. Bar No. 0652776 THE MIAMI CENTERileto@letolaw.com 201 S. BISCAYNE BLVDJONATHAN M. HIXON, ESQ. SUITE 1720Fla. Bar No. 100264 MIAMI, FL 33131ihixon(741etolaw.com PH: (305) 577-8448Attorneys for Petitioner FAX: (305) 577-8465

TABLE OF CONTENTS

PAGE

TABLE OF CITATIONS...................................................................iii

PREFACE......................................................................................iv

STATEMENT OF THE FACTS AND CASE............................................1

SUMMARY OF ARGUMENT........... ..».............................................3

ARGUMENT..................................................................................4

CONCLUSION...............................................................................8

CERTIFICATE OF SERVICE..............................................................9

CERTIFICATE OF COMPLIANCE......................................................10

APPENDIX..................................................................................11

11

TABLE OF CITATIONS

CASE NAME PAGE

Holly v. Auld450 So.2d 217 (Fla. 1984)............................................................6

HSBC Bank USA, Nat. Ass'n v. Nixon2012 WL 6600927 (Fla. 4' DCA 2012)....................................passim

Knowles v. Beverly Enterprises-Florida, Inc.898 So.2d 1 (Fla. 2004)............................................................6, 7

Peterson v. State775 So.2d 376 (Fla. 4* DCA 2000)................................................4

STATUTES

Fla.Stat. § 45.031 (2012).....................................................iv, 3, 4, 5, 7, 8

Fla.Stat. §45.031(2)(2012).........................................................1, 2, 6, 7

OTHER AUTHORITY

Art. V, §3(b)(3), Fla. Const.....................................................iv, 3, 4, 5, 8

Fla.R.App.P. 9.030(a)(2)(A)(i).................................................iv, 3, 4, 5, 8

Palm Beach County Circuit Court Administrative Order 3.301-5/10.....iv, 2, 3, 4, 5

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PREFACE

Plaintiff/Petitioner, HSBC BANK USA, NATIONAL ASSOCIATION, AS

TRUSTEE FOR DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE LOAN

TRUST, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR3,

seeks to invoke the discretionary jurisdiction of this Court pursuant Art. V,

§3(b)(3), Fla. Const. and Fla.R.App,P. 9.030(a)(2)(A)(i), as the Fourth District

Court of Appeal expressly declared valid Fla.Stat. sec. 45.031 when read in

conjunction with Palm Beach County Circuit Court Administrative Order 3.301-

5/10.

Throughout the Brief, the Defendants/Respondents, MARIE NIXON,

MICHAEL NIXON, CROSS MEDIA MARKETING CORPORATION, INC.,

JAVIER PARRAGUIRE, JOHN DOF AND JANE DOE AS TENANTS IN

POSSESSION OF THE SUBJECT PROPERTY, and 3L REAL ESTATE, LLC,

will be referred to as either "Respondent" or "3L Real Estate," and

Plaintiff/Petitioners, HSBC BANK USA, NATIONAL ASSOCIATION, AS

TRUSTEE FOR DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE LOAN

TRUST, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR3,

will be referred to as "Petitioner" or "HSBC." The opinion of the Fourth District

Court of Appeal is attached hereto as an Appendix. Reference to the opinion will

Iv

be by the abbreviation "Appx." followed by the applicable page number(s), e.g.

"(Appx. 4-5)."

V

STATEMENT OF THE FACTS AND CASE

This case stems from a foreclosure action filed by HSBC against Marie

Nixon. On June 8, 2010, the trial court entered a final judgment of foreclosure in

the amount of $787,473.60 in favor of HSBC. [Appx. 1). Pursuant to the final

judgment the trial court scheduled a foreclosure sale for March 7, 2011. [Appx. 1],

Prior to the sale, on February 17, 2011, The Law Offices of David J. Stern, P.A.

(hereinafter "Stern"), who were representing HSBC, filed its Motion to Withdraw

as Counsel. [Appx. 1]. Stern never set its Motion to Withdraw for hearing, and, as

such, were still considered counsel of record for HSBC through the time of the

sale. [Appx. 1-2]. Stern was required, pursuant to Fla. Stat. § 45.031(2), to publish

a Notice of Sale "once a week for 2 consecutive weeks in a newspaper of general

circulation...published in the county where the sale is to be held." [Appx. 1-2].

However, Stern did not publish any notice of sale prior to the sale taking place on

March 7, 2011. [Appx. 1-2]. Further, Stern failed to notify HSBC or attend the

March 7, 2011 sale. Thus, the foreclosure sale went forward and 3L Real Estate

successfully bid $1,622.70 for the property. [Appx. 2].

Following the sale, HSBC retained Phelan Hallinan, PLC to handle its

foreclosure litigation as a result pf the closure of Stern's ofHces. Upon discovering

that the sale was held without publication required by Fla. Stat. § 45.031(2), HSBC

immediately filed a Motion to Vacate and Set Aside the Foreclosure Sale. [Appx.

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2]. The trial court denied this Motion without any explanation. [Appx. 2]. HSBC

then filed a Motion for Rehearing and Clarification Pursuant to Rule 1.530, or

Alternatively, for Relief Pursuant to Rule 1.540. [Appx. 2]. Without conducting a

hearing on the matter, the lower court denied HSBC's Motion for Rehearing.

[Appx. 2].

HSBC then appealed the lower court's denial of its Motion to Vacate and

Motion for Rehearing. [Appx. 2]. Initially, the Fourth District Court of Appeal

reversed the trial court's decision for the Clerk's failure to comply with the

publication requirements set forth in Fla. Stat. § 45.031(2). However, on 3L Real

Estate's Motion for Rehearing, Rehearing En Banc or Certification, the Fourth

District vacated their initial decision and affirmed the trial court's ruling. [Appx.

1]. Specifically, the Fourth District held that Palm Beach County Circuit Court

Administrative Order 3.301-5/10 altered the publication requirements in Fla. Stat.

§ 45.031(2) in order "to prohibit the cancelation of a foreclosure sale when a notice

of sale was not published because plaintiffs' counsel could avoid the need for filing

a motion to cancel a foreclosure sale by simply failing to publish a notice of sale."

[Appx. 2-3].

Petitioner filed a timely Motion for Rehearing, Rehearing En Banc or

Certification which was denied on March 20, 2013. Petitioners then filed a timely

Notice to Invoke Discretionary Jurisdiction of the Florida Supreme Court on April

19, 2013.

SUMMARY OF ARGUMENT

In HSBC Bank USA, Nat. Ass'n v. Nixon, 2012 WL 6600927 (Fla. 4th DCA

2012), the Fourth District expressly declared valid Florida Statute section 45.031

when read in conjunction with Palm Beach County Circuit Court Administrative

Order 3.301-5/10. Specifically, the Fourth District held that "[a]s allowed by the

statute itself, the Administrative Order alters the sale procedure under section

45.031." [Appx. 4]. In formulating it's holding, the Fourth District

misapprehended the clear and unambiguous language of the Administrative Order,

altering the sales procedure beyond the intent of the Florida Legislature and

Fifteenth Circuit. Accordingly, pursuant to Art. V, §3(b)(3), Fla. Const. and

Fla.R.App.P. 9.030(a)(2)(A)(i), this Court has discretionary jurisdiction to review

the Fourth District's decision.

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ARGUMENT

THE DISTRICT COURT'S DECISION EXPRESSLYDECLARES A STATE STATUTE VALID, GIVINGTHIS COURT JURISDICTION PURSUANT TOFLA.R.APP.P. 9.030(a)(2)(A)(i)

Pursuant to Art. V, §3(b)(3), Fla. Const. and Fla.R.App.P. 9.030(a)(2)(A)(i),

this Court has discretionary jurisdiction over decisions by the district courts of

appeal that expressly declare valid a state statute. Id. This does not mean that the

district court must use the magic words and expressly state that it is declaring a

state statute valid - the district court only has to hold that a statute is valid. See

Peterson v. State, 775 So.2d 376, 380 (Fla. 4* DCA 2000) (providing that the

Supreme Court had discretionary jurisdiction to review its decision because it held

that a state statute was valid; however, the opinion does not use express language

stating that the state statute is valid). Sub judice, the Fourth District held that

section 45.031, Fla. Stat. was valid when read in conjunction with Palm Beach

County Circuit Court Administrative Order 3.301-5/10. Accordingly, this Court

has jurisdiction to review the Fourth District's decision.

In its decision, the Fourth District, acknowledged that the final judgment

entered by the trial court required tha$ the foreclosure sale be conducted in

accordance with section 45.031, Fla. Stat. [Appx. 3]. However, the Fourth District

held that such procedures can he modified because section 45.031 provides that

"[i]n any sale of real or personal property under an order of judgment, the

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procedures provided in this section and ss. 45.0315-45.035 may be followed as an

alternative to any other saleprocedure ifso ordered by the court." [Appx. 3]. The

Fourth District went on to hold that paragraph B.3 of the Palm Beach County

Circuit Court Administrative Order 3.301-5/10, which provides that "[fjailure to

provide proof of publication or pay the clerk sale fee prior to the sale is not

grounds for canceling a sale[,]" alters the publication requirements in section

45.031. [Appx. 3]. Specifically, the Fourth District held that "[a]s allowed by the

statute itself, the Administrative Order alters the sale procedure under section

45.031." [Appx. 4].

Accordingly, the Fourth District expressly validated section 45.031, Fla.

Stat. The opinion specifically states that th,e statute provides for alternative sales

procedures (here, the Administrative Order) and the Fourth District held that those

alternative sales procedures alter the procedures set forth in the statute. Although

the Fourth District did not specifically state that it expressly declares valid section

45.031, Fla.Stat., it clearly held that the statute was valid when read in conjunction

with the Administrative Order. This holding is sufficient for this Court to exercise

its discretionary jurisdiction under Art. V, §3(b)(3), Fla. Const. and Fla.R.App.P.

9.030(a)(2)(A)(i) and review the Fourth District's decision.

The effect of the Fourth District's decision is an improper extension of

section 45.031, Fla.Stat. beyond the intent of the Florida Legislature and the

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Fifteenth Circuit. Here, the Fourth District interprets the Administrative Order to

apply to circumstances where a party attempts to vacate a foreclosure sale that has

already taken place. However, as is clear from its plain and onlinary language, the

Administrative Order speaks only to situations where a party attempts to cancel a

pending foreclosure sale before that sale takes place. The Fourth District has

essentially added language to the Administrative Order (and thus, altered the

statute) that did not otherwise exist and has thus failed to follow the clear and

unambiguous publication requirements set forth in Fla. Stat. sec. 45.031(2).

The Fourth District improperly "assumes" that the Administrative Order was

meant to eliminate the publication requirements when a plaintiff moved to vacate a

sale because the Administrative Order eliminates the need for proof of publication

when a party moves to cancel a sale. See Nixon, 2012 WL 6600927 at * 2; [Appx.

4]) However, the Fourth District fails to recognize that there is absolutely no

i Specifically, the Fourth District held that "[i]t is logical to assume that theFifteenth Circuit made an administrative decision to prohibit cancelation of aforeclosure sale when a notice of sale was not published because plaintiffs' counselcould avoid the need for filing.a motion to cancel a foreclosure sale by simplyfailing to publish a notice of sale." Nixon, 2012 WL 6600927 at * 2. However, theAdministrative Order does not include this language. Essentially, the FourthDistrict has added its own language to a clear and unambiguous statute. This isimproper under well-established Florida Supreme Court precedent. See Knowles v.Beverly Enterprises-Florida, Inc., 898 So.2d 1, 5 (Fla. 2004) ("[w]hen thelanguage of the statute is clear and unambiguous and conveys clear and definitemeaning, there is no occasion for resorting to the rules of statutory interpretationand construction; the statute must be given its plain and obvious meaning" quotingHolly v. Auld, 450 So.2d 217, 219 (Fla. 1984).

6

language in the Administrative Order which eliminates the publication requirement

when a party moves to vacate a sale after that sale has taken place. Instead, the

Administrative Order only provides for a procedure to cancel a judicial sale before

it takes place. The Administrative Order is devoid of any mention of a procedure

to vacate a judicial sale after the sale takes place.

Most importantly, this interpretation by the Fourth District is going to create

havoc throughout the State of Florida. Now, every individual judicial district will

presumably have the ability and authority to institute vague and ambiguous

procedures through administrative orders that alter the clear and express

publication requirements established by the Florida Legislature in section

45.031(2), Fla.Stat. Further, pursuant to the holding by the Fourth District in this

case, even if the local administrative order does not speak to a certain

circumstance, the court will be permitted to add language as it sees fit. This would

ultimately allow a court to improperly alter legislation. See Beverly Enterprises-

Florida, Inc., 898 So.2d at 5.

Effectively, this will result in some foreclosed properties in certain parts of

the State requiring publication, while otl7er properties in different areas of the State

will not. This creates a lack ofuniformity in the foreclosure process from judicial

circuit to judicial circuit under Fla.Stat. section 45.031. Accordingly, because the

Fourth District, albeit improperly, held that Fla.Stat. section 45.031 was valid

7

when read in conjunction with the Administrative Order, this Court should

exercise its discretionary jurisdiction undèr Art. V, §3(b)(3), Fla. Const. and

Fla.R.App.P. 9.030(a)(2)(A)(i) and review the Fourth District's decision.

CONCLUSION

For the reasons set forth above, Petitioners respectfully request that the

Court exercise its discretionary jurisdiction to review the Fourth District's decision

expressly validating Florida Statute section 45.031,

8

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was

served via U.S. Mail and email on this 29* day of April, 2013 to: Dinah Stein,

Esq., 799 Brickell Plaza, Suite 900, Miami, FL 33131, dstein@mhickslaw.com;

Brian P. Gabriel, Esq., 4601 Military Trail Suite 206, Jupiter, Florida 33458,

briang@gabriellawteam.com; Jonathan J. Alfonso, Esq., 848 Brickell Avenue,

Suite 300, Miami, Florida 33131, jalfonso@weseloskicarlson.com; Xanadu by the

Sea Property Owners Association, c/o Registered Agent: Eric Peterson, 154

Sims Creek Lane, Jupiter Florida 33408 (via U.S. Mail only); Owei Z. Belleh,

Esq., 888 SE 3d Avenue, Suite 201, Ft. Lauderdale, Florida 33316,

Fl.service@phelanhallinan.com.

9

CERTIFICATE OF COMPLIANCE

WE HEREBY CERTIFY that the foregoing complies with the font

requirements of Rule 9.210 of the Florida Rules of Appellate Procedure.

Respectfully submitted,

THE LETO LAW FIRMAttorney for AppellantsThe Miami Center201 South Biscayne BoulevardSuite 1720Miami, FL 33131Telephone: (305) 577-8448Facsimile: (305)577-8465

By: s/ Justin C. LetoJUSTIN C. LETOFla. Bar No.: 0652776JONATHAN M. HIXONFla. Bar No.: 100264

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APPENDIX

A. HSBC Bank USA, Nat. Ass'n v. Nixon, 2012 WL 6600927 (Fla. 4* DCA 2012)

11

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICTJuly Term 2012

HSBC BANK USA, NATIONAL ASSOCIATION, as trustee for DEUTSCHEALT-A SECURITIES, INC., MORTGAGE LOAN TRUST, MORTGAGE

PASS THROUGH CERTIFICATES SERIES 2OO6-ARS,Appellant,

v.

MARIE NIXON, MICHAEL NIXON CROSS MEDIA MARKETINGCORPORATION, INC., JAVIER PARRAGUIRE; JOHN DOE and JANE

DOE as tenants in possession of the subject property, and SL REALESTATE, LLC,

Appellees.

No. 4D11-3038

[December 19, 2012]

ON MOTION FOR REBEARENG

CORRECTED OPINION

CONNER, J.

We grant 3L Real Estate's motión for rehearing, withdraw ourprevious opinion, and substitute this opinion in its place.

HSBC Bank USA ("HSBC") appeals the denial of its motion to vacate aforeclosure sale, contending the trial court failed to adhere to therequirements of section 45.031,, Florida Statutes (2012), for publicationof the notice of sale. HSBC also contends on appeal that the trial courterred in denying its motion for rehearing or in the alternative for reliefunder rule 1.540(b), which asserted that the sale was improper becausethe notice of sale was not published and the sales price was grosslyinadequate. We affirm on all issues.

The trial court entered a final judgment of foreclosure in favor ofHSBC in the amount of $787,473.60. The final judgment scheduled anelectronic foreclosure sale for March 7, 2011. On February 17, 2011,HSBC's prior counsel, David J. Stern P.A., moved to withdraw andsought a sixty-day continuance for HSBC to seek new counsel. Prior

counsel did not publish notice of the sale or set the motion to withdrawfor a hearing. The sale was held as scheduled, with 3L Real Estate, LLC("3L"), submitting the winning bid of $1600.

With new counsel, HSBC moved to vacate the foreclosure sale,arguing no notice of sale was published as required by section 45.031(2).The trial court denied the motion without elaboration and ordered theclerk to issue the certificate of sale. A day later, HSBC moved forrehearing pursuant to rule 1.530 or in the alternative for relief underrule 1.540(b), arguing the bid was grossly inadequate, HSBC's failure tobid was due to the failure of its prior counsel to make a bid or obtainpostponement of the sale, and the sale was improper since no notice ofsale was published. That motion was denied as well.

The standard of review for the denial of a motion to vacate aforeclosure sale is gross abuse of discretion. Long Beach Mortg. Corp. v.Bebble, 985 So. 2d 611, 613 (Fla. 4th DCA 2008). In Blue Star Inus, v.Johnson, 801 So. 2d 218 (Fla. 4th DCA 2001), this Court stated that tovacate a foreclosure sale, the trial court must find "(1) that theforeclosure sale bid was grosély or startlingly inadequate; and (2) that theinadequacy of the bid resulted from some mistake, fraud or otherirregularity in the sale."1

We agree the sale bid was grossly inadequate. See Long Beach, 985So. 2d at 614-615 ($1000 bid was grossly inadequate for a propertyappraised at $500,000 and when the final judgment was for$716,139.60).

Regarding mistake, HSBC argues prior counsel failed to publishnotice of the sale and failed to represent HSBC at the foreclosure sale.HSBC relies on Long Beach, in which the plaintiff hired two firms torepresent it during the foreclosure proceedings. One handled thelitigation, and one handled the sale. A mix-up between the two firmscaused the sales agent employed by one firm to believe that the salewould not proceed, so the plaintiff did not bid on the property, and theproperty was sold for a grossly inadequate price. The plaintiff moved to

1 Neither trial counsel nor the trial court had the benefit of our decision inArsali v. Chase Home Finance, LLC, 79 So. 3d 845 (Fla. 4th DCA 2012) in whichwe receded from Blue Star to the extent it held that inadequacy or price mustalways be part of the legal equation in a motion to set aside a foreclosure sale.In its motion for rehearing or relief pursuant to rules 1.530 and 1.540, HSBCclearly argues the sale price was grossly inadequate, so Blue Star is applicableto this appeal. We note that HSBC raised no issue of fraud in the trial court oron appeal.

2

set aside the bid, but the jurchãserlopposed the motion, arguing theplaintiff's failure to bid was due to a unilateral mistake. The trial courtdenied the motion, but this Court reversed, holding that even a unilateralmistake which results in a gæssly inadequate price was grounds forvacating a sale. Id. at 614. ' More recently, in CitiMortgage, Inc. v.Synuria, 86 So. 3d 1237 (Fla. 4th DCA 2012), this Court held that thetrial court was required to set aside a sale when the bid was 1.9% of thejudgment amount and the lender's failure to appear at the sale was dueto a substitution of legal counsel. Id.

The bidder, 3L, argues in its answer brief that HSBC never providedany evidence to demonstrate any mistake that would entitle HSBC torelief. HSBC asserts that its statements in its motions are sufficient, butits motions to vacate were not sworn. No transcript of any hearings hasbeen provided. The only evidence that exists in the record that wouldsupport HSBC's argument is the motion to withdraw, filed nineteen daysbefore the foreclosure sale was held. However, that motion alone doesnot demonstrate that HSBC lacked notice of the foreclosure sale or wasnot represented by an agent at the sale. We agree that HSBC neverprovided any evidence to demonstrate any mistake that would entitleHSBC to relief.

On the facts of this case, we cannot say the trial court abused itsdiscretion in refusing to vacate the sale, grant rehearing, or grant relieffrom judgment on the grounds that the failure to publish a notice of thesale constitutes an irregulerity in the sale procedure. In our recentdecision in Simonson v. Faltn Beach Hotel Condominium Association, Inc.,93 So. 3d 436 (Fla. 4th DCA 2012), we held that when a trial court"adopts the statutory framework of section 45.031, it must adhere to thestatute's provisions." Here, as in Simonson, the final judgment requiredthat the foreclosure sale be conducted in accordance with section45.031, Florida Statutes (2012).

However, section 45.031 begins by stating:

In any sale of real or personal property under an order ofjudgment, the procedures provided in this section and ss.45.0315-45.035 may be followed as an alternative to anyother sale procedure ifso ordered by the court.

(emphasis added). As 3L points out, Palm Beach County Circuit CourtAdministrative Order 3.301-5/10 specifically provided in paragraph B.3.:

Failure to provide proof of publication or pay the clerk salefee prior to the sale is not grounds for canceling a sale.

3

The administrative order was entered after the supreme court issued itsopinion In re Amendments To The Florida Rules Of Civil Procedure, 44 So.3d 555 (Fla. 2010). In that opinion, our supreme court accepted therecommendation of the Task Force on Residential Mortgage ForeclosureCases to adopt a form motion to cancel foreclosure sales.2 In adoptingthe recommendation, our supreme court quoted the petition by the TaskForce:

Currently, many foreclosure sales set by the final judgmentand handled by the clerks of court are the subject of vaguelast-minute motions to reset sales without giving any specificinformation as to why the sale is being reset. It is importantto know why sales are being reset so as to determine whenthey can properly be reset, or whether the sales process isbeing abused. . . . Again, this is designed at promotingeffective case management and keeping properties out ofextended limbo between final judgment and sale.

Id. at 558. The Palm Beach County Circuit Court Administrative Orderestablished that in the Fifteenth Circuit, failure to provide proof ofpublication is not grounds for canceling a foreclosure sale.3 It is logicalto assume that the Fifteenth Circuit made an administrative decision toprohibit the cancelation of a foreclosure sale when a notice of sale wasnot published because plaintiffs' counsel could avoid the need for filing amotion to cancel a foreclosure sale by simply failing to publish a notice ofsale.4 As allowed by the statute itselfythe Administrative Order alters thesale procedure under section 45.03:1n On the facts of this case, the trialcourt had the discretion to deny relief under rules 1.530 and 1.540,despite lack of publication of the notice of sale.

We distinguish this case from Simonson because there was no issue inSimonson about the effect of an administrative order altering the saleprocedure under section 45.301.

"The purpose of a [1.530] motion for rehearing is to give the trial courtan opportunity to consider matters which it overlooked or failed to

2 Florida Rules of Civil Procedure, Form 1.996(b).3 We note that Form 1.996(b) does not state that failure to publish a notice ofsale is listed ground for canceling a sale (although, arguably speaking, it couldbe listed under "other"}.4 3L also pcints out in its answer brief that with the advent of online sales,publication in a newspaper is not as necessary as it used to be, and the pool ofbidders is now larger, thanks to the internet, than the readership of anewspaper.

consider, and to correct any error if it becomes convinced that it haserred." Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1389(Fla. 3d DCA 1986) (internal citation omitted). Rule 1.540 provides anadditional, but �523strictivemechanism to correct an erroneous decision bythe trial court. Id. at 1390. HSBC failed to make an evidentiary showingit is entitled to relief under rule 1.540(b). SunTrust Bank v. Puleo, 76 So.3d 1037, 1039 (Fla. 4th DCA 2011) ("If the allegations in the movingparty's motion for relief from judgment 'raise a colorable entitlement torule 1.540(b)(3)'s relief, a formal evidentiary hearing on the motion, aswell as permissible discovery prior to the hearing, is required.'"); DynastyExpress Corp. v. Weiss, 675 So. 2d 235, 239 (Fla. 4th DCA 1996) (quotingSouthern Bell Tel. & Tel. Co. v. Welden, 483 So. 2d 487, 489 (Fla. 1st DCA1986)). HSBC has failed to provide this court with a transcript of thehearings on its motions. Judicial discretion exercised by the trial courtis abused when no reasonable judge would take the view adopted by thetrial judge. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).Since the record before us is inadequate to demonstrate the trial courtabused its discretion, we afiirm. Applegate v. Barnett Bank ofTallahassee, 377 So. 2d 1150 (Fla. 1979).

Affirmed.

GRoss and HAZOURI, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, PalmBeach County; John J. Hoy, Judge; L.T. Case No.502008CA034262XXXXMB(AW).

Justin C. Leto of The Leto Law Firm, Miami, for appellant.

Jonathan J. Alfonso of Wesoloski Carlson, P.A., Miami, and DinahStein of Hicks, Porter, Ebenfeld & Stei1% P.A., Miami, for appellee 3L RealEstate, LLC.

Not final until disposition of timelyfiled motion for rehearing.

5

Barbara Harley-Price

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