Abelson v. First Nationwide Bank

District Court of Appeal of Florida

Abelson v. First Nationwide Bank

545 So. 2d 414, 14 Fla. L. Weekly 1441, 1989 Fla. App. LEXIS 3307, 1989 WL 62752

CourtDistrict Court of Appeal of Florida

DecidedJune 13, 1989

DocketNo. 88-2911

StatusPublished

Cited by2 cases

This text of 545 So. 2d 414 (Abelson v. First Nationwide Bank) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abelson v. First Nationwide Bank, 545 So. 2d 414, 14 Fla. L. Weekly 1441, 1989 Fla. App. LEXIS 3307, 1989 WL 62752 (Fla. Ct. App. 1989).

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Opinion

PER CURIAM.

This is an appeal from a final default judgment and subsequent foreclosure sale of property. Simon Abelson, the appellant, asserts that the default judgment should not have been entered and the foreclosure sale should not have been conducted because he had filed several motions prior to the entry of the order of default. First Nationwide Bank (Bank), the appellee, contends that Abelson’s motions were untimely and without merit.

The record demonstrates that Abelson filed a notice to post cost bond, motion to abate, and motion to strike, prior to the hearing on the Bank’s motion for default. The record also demonstrates that Abelson filed a motion to dismiss the Bank’s complaint, after a hearing on the Bank’s motion for default, but, prior to rendition of the default order. Shortly thereafter, the trial court denied Abelson’s motion to dismiss as being untimely and lacking legal merit.

Florida Rule of Civil Procedure 1.500(c), provides, “(a) party may plead or otherwise defend at any time before default is entered.” Since Abelson’s motions were filed before the default was entered, Abelson’s motions were timely, and such motions precluded the entry of a default judgment against him. See Humbert v. Ackerman, 541 So.2d 1229 (Fla. 3d DCA 1989); Board of Regents v. Hardin, 393 So.2d 1134 (Fla. 1st DCA 1981); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980). Further, accepting as correct the trial court’s finding that Abelson’s motion to dismiss was without merit, the trial court erred in denying Abelson’s motion without giving him an opportunity to serve his answer. See Sis[415]*415ter Donut, Inc. v. Cameron-Brown Company, 495 So.2d 772 (Fla. 4th DCA 1986).

Accordingly, we reverse the final default judgment and vacate the foreclosure sale of the property and remand this cause for further proceedings.

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PER CURIAM.

This is an appeal from a final default judgment and subsequent foreclosure sale of property. Simon Abelson, the appellant, asserts that the default judgment should not have been entered and the foreclosure sale should not have been conducted because he had filed several motions prior to the entry of the order of default. First Nationwide Bank (Bank), the appellee, contends that Abelson’s motions were untimely and without merit.

The record demonstrates that Abelson filed a notice to post cost bond, motion to abate, and motion to strike, prior to the hearing on the Bank’s motion for default. The record also demonstrates that Abelson filed a motion to dismiss the Bank’s complaint, after a hearing on the Bank’s motion for default, but, prior to rendition of the default order. Shortly thereafter, the trial court denied Abelson’s motion to dismiss as being untimely and lacking legal merit.

Florida Rule of Civil Procedure 1.500(c), provides, “(a) party may plead or otherwise defend at any time before default is entered.” Since Abelson’s motions were filed before the default was entered, Abelson’s motions were timely, and such motions precluded the entry of a default judgment against him. See Humbert v. Ackerman, 541 So.2d 1229 (Fla. 3d DCA 1989); Board of Regents v. Hardin, 393 So.2d 1134 (Fla. 1st DCA 1981); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980). Further, accepting as correct the trial court’s finding that Abelson’s motion to dismiss was without merit, the trial court erred in denying Abelson’s motion without giving him an opportunity to serve his answer. See Sis[415]*415ter Donut, Inc. v. Cameron-Brown Company, 495 So.2d 772 (Fla. 4th DCA 1986).

Accordingly, we reverse the final default judgment and vacate the foreclosure sale of the property and remand this cause for further proceedings.

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Bluebook (online)

545 So. 2d 414, 14 Fla. L. Weekly 1441, 1989 Fla. App. LEXIS 3307, 1989 WL 62752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abelson-v-first-nationwide-bank-fladistctapp-1989.

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