Paul McMullen v. HSBC Bank USA, National Assoc. etc. etal

District Court of Appeal of Florida

Paul McMullen v. HSBC Bank USA, National Assoc. etc. etal

149 So. 3d 156, 2014 WL 5139307

CourtDistrict Court of Appeal of Florida

DecidedOctober 22, 2014

Docket1D14-1737

StatusPublished

This text of 149 So. 3d 156 (Paul McMullen v. HSBC Bank USA, National Assoc. etc. etal) 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.

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Paul McMullen v. HSBC Bank USA, National Assoc. etc. etal, 149 So. 3d 156, 2014 WL 5139307 (Fla. Ct. App. 2014).

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Opinion

PER CURIAM.

Appellant, Paul McMullen, appeals the denial of his motion to vacate a final judgment of foreclosure and argues that because he did not receive notice of the summary judgment hearing, 1 the trial court erred in not vacating the foreclosure judgment. We reject Appellant’s argument because, as argued by Appellee, HSBC Bank USA, a judicial default was entered in this case. See Matejka v. Dula ney, 40 So.3d 865, 866 (Fla. 4th DCA 2010) (noting that a default admits every cause of action that is sufficiently well-pled as well as a plaintiffs entitlement to liquidated damages); see also Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764, 766 (Fla. 2d DCA 2010) (“Generally, in a foreclosure action, unpaid principal and interest are ‘liquidated damages,’ and a defaulting party is not entitled to notice of hearing determining those amounts where the exact sums are set forth.”); Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006) (“A default terminates the defending party’s right to further defend, except to contest the amount of unliquidat-ed damages.”); Asian Imports, Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994) (noting that actions for, the sums directly due on negotiable instruments are actions for liquidated damages). However, because the foreclosure judgment also included unliquidated damages, including, for example, attorney’s fees, we reverse and remand for a hearing on the amount of unliquidated damages owed to Appellee. See Pepe, 633 So.2d at 553 (affirming the trial court’s ruling denying the defendants’ motion to vacate the final judgment of foreclosure except as to the provision for attorney’s fees because the fees were un-liquidated damages).

AFFIRMED in part; REVERSED in part; and REMANDED.

LEWIS, C. J., CLARK and MARSTILLER, JJ., concur.

1

. The Notice of Hearing was sent by U.S. mail to the law firm representing Appellant and to the email address of Appellant's former attorney rather than the email address designated by the firm pursuant to Florida Rule of Judicial Administration 2.516(b).

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PER CURIAM.

Appellant, Paul McMullen, appeals the denial of his motion to vacate a final judgment of foreclosure and argues that because he did not receive notice of the summary judgment hearing, 1 the trial court erred in not vacating the foreclosure judgment. We reject Appellant’s argument because, as argued by Appellee, HSBC Bank USA, a judicial default was entered in this case. See Matejka v. Dula ney, 40 So.3d 865, 866 (Fla. 4th DCA 2010) (noting that a default admits every cause of action that is sufficiently well-pled as well as a plaintiffs entitlement to liquidated damages); see also Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764, 766 (Fla. 2d DCA 2010) (“Generally, in a foreclosure action, unpaid principal and interest are ‘liquidated damages,’ and a defaulting party is not entitled to notice of hearing determining those amounts where the exact sums are set forth.”); Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006) (“A default terminates the defending party’s right to further defend, except to contest the amount of unliquidat-ed damages.”); Asian Imports, Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994) (noting that actions for, the sums directly due on negotiable instruments are actions for liquidated damages). However, because the foreclosure judgment also included unliquidated damages, including, for example, attorney’s fees, we reverse and remand for a hearing on the amount of unliquidated damages owed to Appellee. See Pepe, 633 So.2d at 553 (affirming the trial court’s ruling denying the defendants’ motion to vacate the final judgment of foreclosure except as to the provision for attorney’s fees because the fees were un-liquidated damages).

AFFIRMED in part; REVERSED in part; and REMANDED.

LEWIS, C. J., CLARK and MARSTILLER, JJ., concur.

1

. The Notice of Hearing was sent by U.S. mail to the law firm representing Appellant and to the email address of Appellant's former attorney rather than the email address designated by the firm pursuant to Florida Rule of Judicial Administration 2.516(b).

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