Biscayne West, Inc. v. Burnac Mortgage Investors, Ltd.

PER CURIAM. The summary final judgment and final decree of foreclosure is affirmed upon a holding that: (1) the record without dispute establishes that the appellants herein are in default on the subject indebtedness established by the stipulation of settlement as incorporated in the prior final judgment entered in this cause, which default is sufficient to authorize the foreclosure ordered herein, and (2) the appellants’ counterclaim and affirmative defenses are insufficient as a matter of law because (a) they seek to set aside the prior final judgment based on grounds of duress, misrepresentation and misconduct by the appellee when well over one year has elapsed from the entry of said final judgment, thereby barring such action as untimely, and (b) they in no sense make out an independent action to set aside the prior final judgment for fraud upon the court. August v. August, 350 So.2d 794 (Fla. 3d DCA 1977); Kimbrough v. McCranie, 325 So.2d 70 (Fla. 1st DCA 1976); Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973); Fla.R. Civ.P. 1.540(b). Affirmed.