Wells Fargo Bank, N.A. v. Alvarez

District Court of Appeal of Florida

Wells Fargo Bank, N.A. v. Alvarez

172 So. 3d 464, 2015 Fla. App. LEXIS 7975, 2015 WL 3397563

CourtDistrict Court of Appeal of Florida

DecidedMay 27, 2015

Docket3D14-1535

StatusPublished

This text of 172 So. 3d 464 (Wells Fargo Bank, N.A. v. Alvarez) 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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Wells Fargo Bank, N.A. v. Alvarez, 172 So. 3d 464, 2015 Fla. App. LEXIS 7975, 2015 WL 3397563 (Fla. Ct. App. 2015).

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Opinion

SALTER, J.

Wells Fargo Bank, N.A., appeals from a final order dismissing its residential foreclosure complaint for lack of prosecution. The appellees and homeowners/mortgagors, Roberto Alvarez and Jorge Perez, did not file an answer brief following the issuance of an order to do so or to be precluded from participating in oral argument.

Following our review of the initial brief and the record in this case, we vacate the order of dismissal and remand the case for further proceedings. This result is compelled by the dates of the pertinent pleadings and notice, the text of Florida Rule of Civil Procedure 1.420(e), and our rulings in similar cases (see Morla v. Armani Invs., LLC, 150 So.3d 1253 (Fla. 3d DCA 2014); Deutsche Bank Nat’l Trust Co. v. Basanta, 88 So.3d 216 (Fla. 3d DCA 2011)).

The notice of lack of prosecution in this case, though shown on the docket as December 12, 2013, bears a signature indicating that it was served January 10, 2014. Wells Fargo filed its statement of good cause under Rule 1.420(e), an affidavit, a motion for default, and a notice of dropping defendants on March 10, 2014, 1 a date less than 60 days after the trial court’s handwritten signature date on the notice of lack of prosecution. These filings precluded dismissal for lack of prosecution under the Rule and precedents cited above.

Order vacated; case remanded for further proceedings.

1

. The statement of good cause and other pleadings are dated March 10, 2014, but the docket reflects an e-filing date of March 7, 2014.

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SALTER, J.

Wells Fargo Bank, N.A., appeals from a final order dismissing its residential foreclosure complaint for lack of prosecution. The appellees and homeowners/mortgagors, Roberto Alvarez and Jorge Perez, did not file an answer brief following the issuance of an order to do so or to be precluded from participating in oral argument.

Following our review of the initial brief and the record in this case, we vacate the order of dismissal and remand the case for further proceedings. This result is compelled by the dates of the pertinent pleadings and notice, the text of Florida Rule of Civil Procedure 1.420(e), and our rulings in similar cases (see Morla v. Armani Invs., LLC, 150 So.3d 1253 (Fla. 3d DCA 2014); Deutsche Bank Nat’l Trust Co. v. Basanta, 88 So.3d 216 (Fla. 3d DCA 2011)).

The notice of lack of prosecution in this case, though shown on the docket as December 12, 2013, bears a signature indicating that it was served January 10, 2014. Wells Fargo filed its statement of good cause under Rule 1.420(e), an affidavit, a motion for default, and a notice of dropping defendants on March 10, 2014, 1 a date less than 60 days after the trial court’s handwritten signature date on the notice of lack of prosecution. These filings precluded dismissal for lack of prosecution under the Rule and precedents cited above.

Order vacated; case remanded for further proceedings.

1

. The statement of good cause and other pleadings are dated March 10, 2014, but the docket reflects an e-filing date of March 7, 2014.

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172 So. 3d 464, 2015 Fla. App. LEXIS 7975, 2015 WL 3397563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-na-v-alvarez-fladistctapp-2015.

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