Mondestin v. Duval Fed. Sav. & Loan Ass'n

500 So. 2d 580, 11 Fla. L. Weekly 2590, 1986 Fla. App. LEXIS 11295

• Court: District Court of Appeal of Florida
• Decided: December 10, 1986
• Docket: 4-86-0213
• Status: Published

Opinion

500 So.2d 580 (1986)

Max MONDESTIN and Helena Mondestin, Appellants,
v.
DUVAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.

No. 4-86-0213.

District Court of Appeal of Florida, Fourth District.

December 10, 1986. Rehearing Denied January 28, 1987.

Alec Ross of Alec Ross Law Offices, North Miami Beach, for appellants.

Nancy K. Neidich of Wiener, Shapiro & Rose, Miami, for appellee.

PER CURIAM.

Appellants seek reversal of a summary final judgment in a mortgage foreclosure case. It is undisputed that appellants were unrepresented at the summary judgment hearing. Counsel for appellants asserts that he was not present at the hearing because he did not receive notice, and that he would have been present had he known of the hearing. There is nothing in the record sufficient to establish that notice was received.

Because of the due process implications inherent in appellants' position, this Court finds that it has no alternative but to reverse the summary final judgment and to remand for a new hearing on the motion, to be held after legally sufficient service of notice of the time and place of the hearing on appellants. However, the Court does not intend, by doing so, to express any opinion regarding the merit of either the motion for summary judgment or appellants' arguments in opposition. We hold only that appellants are entitled to notice and an opportunity to appear and present their position.

REVERSED AND REMANDED.

LETTS and WALDEN, JJ., and WEBSTER, PETER D., Associate Judge, concur.