Robles v. Fed. Nat'l Mortg. Ass'n

255 So. 3d 986
CourtDistrict Court of Appeal of Florida
DecidedOctober 10, 2018
DocketNo. 3D17-2798
StatusPublished
Cited by5 cases

This text of 255 So. 3d 986 (Robles v. Fed. Nat'l Mortg. Ass'n) 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
Robles v. Fed. Nat'l Mortg. Ass'n, 255 So. 3d 986 (Fla. Ct. App. 2018).

Opinion

ROTHENBERG, C.J.

Ralph and Norma Robles (collectively, "the appellants") appeal from a summary final judgment of foreclosure entered on November 27, 2017 in favor of the appellee, Federal National Mortgage Association ("Fannie Mae"). The summary judgment of foreclosure followed the order of a judicial default entered on June 22, 2017. For the reasons that follow, we affirm.

BACKGROUND

Ralph Robles ("Robles") executed a note in favor of Bank of America, N.A. on September 16, 2005. The note was secured by real property located in Miami, Florida. Fannie Mae is the owner and holder of the note. Robles stopped making payments on the note on February 1, 2012, and defaulted on the note; Fannie Mae initiated a foreclosure action on January 12, 2017; and the appellants were served with the complaint on January 26, 2017.

On February 15, 2017, counsel representing the appellants filed a notice of *988appearance, a notice of unavailability, and a motion for a thirty-day extension of time to file an answer, which was unopposed and granted on May 1, 2017, thereby giving counsel until May 31, 2017 to file an answer. When no answer was filed by the appellants, Fannie Mae filed an ex parte motion for a default on June 16, 2017. Despite being captioned as "ex parte ," the motion was served on all parties, including counsel for the appellants. Counsel for the appellants, who does not dispute that he was served with the motion, took no action, filed no answer, and did not move for an extension of time. On June 22, 2017, the trial court entered a default and the order was sent to all parties, including the appellants' counsel. Again, counsel for the appellants took no action, including failing to petition the trial court to set aside the order of default, even though it is undisputed that he received the order indicating that a default had been entered.

Four months after the entry of the default and the trial court's notice to the appellants and their counsel, Fannie Mae filed a motion for summary judgment of foreclosure. Thereafter, on October 27, 2017, Fannie Mae filed a notice of hearing setting its motion for summary judgment of foreclosure for November 27, 2017, and served all parties, including counsel for the appellants. Again, the appellants took no action, and on November 27, 2017, the trial court entered a final judgment of foreclosure. This appeal followed.

STANDARD OF REVIEW

The parties agree that the question of whether a judgment is void is reviewed de novo . Infante v. Vantage Plus Corp., 27 So.3d 678, 680 (Fla. 3d DCA 2009). Foreclosure judgments based on an order of default are reviewed for an abuse of discretion. Jacaranda, LLC v. Green Tree Servicing, LLC, 203 So.3d 964, 965 (Fla. 2d DCA 2016).

The appellants contend that because they filed a motion for an extension of time, they were entitled to a hearing prior to the entry of a default. Because there was no hearing, they contend that the entry of the default and the default final judgment are void. The appellants also contend that the judicial default entered by the trial court amounted to a sanction, and thus the trial court was required to consider the requisite factors announced in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993). As will be discussed below, because the appellants failed to file a responsive pleading , no hearing was required, and because they received notice and an opportunity to be heard, the default was properly entered, and the judgment is not void. We also reject the argument that the default was issued as a sanction, thus requiring consideration of the Kozel factors.

ANALYSIS

The true purpose of the entry of a default is to speed the cause of action and to prevent a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9, 11 (1942). It is well-established that under rule 1.500(b), Florida Rules of Civil Procedure, when 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 of the application for default. Int'l Energy Corp. v. Hackett, 687 So. 2d 941, 942-43 (Fla. 3d DCA 1997) ; see also Jacaranda 203 So.3d at 966. This rule has been interpreted to require sufficient notice to afford an opportunity to be heard. McClenon v. Zartemi, 710 So.2d 737, 739 (Fla. 3d DCA 1998) ;

*989Green Solutions Int'l Inc. v. Gilligan, 807 So.2d 693, 696 (Fla. 5th DCA 2002) ; Zeigler v. Huston, 626 So.2d 1046, 1048 (Fla. 4th DCA 1993).

Failure to provide notice of a default when "any paper" has been filed renders the default void. M.W. v. SPCP Grp. V, LLC, 163 So.3d 518, 522 (Fla. 3d DCA 2015). The appellants' motion for an extension of time constitutes "any paper." Thus, the appellants were entitled to receive sufficient notice of Fannie Mae's application for a court default. This notice requirement was satisfied in the instant case when the appellants, through their counsel, were served with the motion seeking a default. This notice was sent on June 16, 2017 and, after hearing nothing from the appellants, the trial court entered the default on June 22, 2017. The appellants do not suggest, and we do not find, that the appellants did not receive sufficient notice and an opportunity to be heard.

Contrary to the appellants' argument, there is no requirement to conduct a hearing prior to the entry of a default where the non-moving party has failed to defend the action. See Picchi v. Barnett Bank of S. Fla., N.A., 521 So.2d 1090, 1091 (Fla. 1988) ; Fierro v. Lewis, 388 So.2d 1361, 1362 (Fla. 5th DCA 1980).

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Bluebook (online)
255 So. 3d 986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robles-v-fed-natl-mortg-assn-fladistctapp-2018.