Falcon v. Wilmington Savings Fund Society

258 So. 3d 565

• Court: District Court of Appeal of Florida
• Decided: November 21, 2018
• Docket: 17-1799
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 21, 2018. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-1799 Lower Tribunal No. 17-1192 ________________

Blasino Falcon, Appellant,

vs.

Wilmington Savings Fund Society, FSB, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith, Judge.

Legal Services of Greater Miami, Inc., and Jacqueline C. Ledon and Jeffrey M. Hearne, for appellant.

Kelley Kronenberg, and Jacqueline Costoya (Fort Lauderdale), for appellee.

Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.

LOGUE, J.

The Borrower, Blasino Falcon, appeals the trial court’s entry of a final

judgment in favor of the Lender, Wilmington Savings Fund Society, FSB. Because the judicial default was entered against the Borrower without allowing the

Borrower a meaningful amount of time to respond to the motion for default, we

reverse.

Factual Background

The Lender filed a foreclosure action against the Borrower on January 17,

2017. Thereafter, the Borrower, asserting that he was in the process of obtaining

counsel, filed a pro se motion for extension of time to respond to the complaint.

The Lender did not oppose the extension of time and, as a result, the response to

the complaint became due on March 23, 2017. Approximately six days after the

due date, on March 29, 2017, the Borrower’s counsel filed a notice of appearance.

However, counsel neither moved for another extension of time nor filed a

responsive pleading.

On March 31, 2017, roughly one week after the responsive pleading was due

pursuant to the extension, the Lender moved for judicial default. The motion for

default was filed at 7:08 a.m. on the morning of March 31, 2017. At

approximately 9:30 a.m. that same day, the trial court entered the default. Based

upon the certificates of service, copies of the motion and the order of default were

served upon the Borrower’s counsel.

On May 4, 2017, the trial court entered a sua sponte order setting the trial in

the case for July 7, 2017. The Borrower, on June 8, 2017, filed his motion to set

2 aside the default, arguing that the default had been entered in violation of his due

process rights. The Borrower did not provide an explanation for his delay in

moving to vacate the default.

The following week, the Lender filed its motion for summary judgment and

request for attorney’s fees. The trial court heard the motion to set aside the default

on July 6, 2017, but denied the motion. At the final hearing on July 7, 2017, the

trial court, given the prior default, entered the final judgment of foreclosure against

the Borrower. This appeal follows.

Under Florida law, “[i]t is fundamental that when a party against whom

affirmative relief is sought has appeared in an action by filing or serving papers,

that party shall be served with notice of the application for default as required by

Florida Rule of Civil Procedure 1.500(b).” Yellow Jacket Marina, Inc. v. Paletti,

670 So. 2d 170, 171 (Fla. 1st DCA 1996); see Int’l Energy Corp. v. Hackett, 687

So. 2d 941, 943 (Fla. 3d DCA 1997) (“[W]hen a party against whom affirmative

relief is sought has appeared in the action by filing or serving any papers, no

default may be entered against such party without prior notice.”). The Lender

argues that “it is undisputed that the technical requirements of notice were

accomplished,” and therefore, the trial court did not err in entering the default. We

disagree.

3 As we have held previously, “it is obvious that the ‘notice of application’

provided by 1.500(b) would be purposeless unless given in sufficient time to

permit some meaningful action to be taken upon it after its receipt.” Cohen v.

Barnett Bank of S. Fla., 433 So. 2d 1354, 1355 (Fla. 3d DCA 1983). In Cohen, we

reversed a default and consequent judgments where the default order was entered

two days after the application for default was served by mail. Id. Citing the five-

day mailing period under Florida Rule of Civil Procedure 1.090(e), we

acknowledged that “[s]ince the two day period in the notice given by the bank was

less than that, and was patently insufficient even without reference to the rule, it is

plain that the plaintiff did not comply with Fla. R. Civ. P. 1.500(b).” Cohen, 433

So. 2d at 1355 (emphasis added).

Here, the time elapsed between the service and filing of the application for

default and the entry of the default was roughly two-and-a-half hours, strikingly

less than the already “patently insufficient” time period in Cohen. Accordingly, it

was error for the trial court to enter the default against the Borrower. We therefore

reverse the order of default and consequent judgment, and remand for further

proceedings.

Reversed and remanded.