Wilmington Trust, N.A. v. Whyte

District Court of Appeal of Florida

Wilmington Trust, N.A. v. Whyte

199 So. 3d 494, 2016 Fla. App. LEXIS 13179, 2016 WL 4542083

CourtDistrict Court of Appeal of Florida

DecidedAugust 31, 2016

Docket3D15-2905

StatusPublished

This text of 199 So. 3d 494 (Wilmington Trust, N.A. v. Whyte) 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

Wilmington Trust, N.A. v. Whyte, 199 So. 3d 494, 2016 Fla. App. LEXIS 13179, 2016 WL 4542083 (Fla. Ct. App. 2016).

Pincite

Opinion

SUAREZ, C.J.

Wilmington Trust, N.A., as Trustee, for the Benefit of Registered Holders of Structured Asset Mortgage Investments II Trust 2007-AR1, Mortgage Pass-Through Certificates, Series 2007-AR1 (“Trustee”) appeals the denial of its Motion to Vacate Order Dismissing Case. We reverse.

Trustee filed a foreclosure action against Appellees Carlton A. Whyte and Diana Whyte 1 in 2013. The matter was set for trial in February 2015, but trial was delayed because Appellees filed a Suggestion of Bankruptcy. After the bankruptcy was dismissed the Trustee re-noticed the matter for trial. The trial court entered an Order re-setting the matter, but due to an electronic filing error within the Trustee’s counsel’s computer system, counsel did not receive the notice. When the Trustee’s counsel did not appear at the time of trial, the trial court dismissed the foreclosure action. Upon later learning of the dismissal, the Trustee moved to vacate the dismissal arguing excusable neglect. After hearing, the trial court denied the motion.

We believe the trial court abused its discretion in doing so. As has been explained in many cases, “[ejxcusable neglect is found where inaction results from clerical or secretarial error, [ ] a system gone awry or any other of the foibles to which human error is heir.” Elliott v. Aurora *495 Loan Servs., LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010). See also, Ocwen Loan Servicing, LLC v. Brogdon, 185 So.3d 627, 629 (Fla. 5th DCA 2015) and Edwards v. Najjar, 748 So.2d 1101, 1103 (Fla. 3d DCA 2000). In this case, the Trustee provided undisputed evidence that, due to a problem with its counsel’s computer system, counsel did not actually receive the notice for trial. Courts have consistently held that such error constitutes excusable neglect under Florida Rule of Civil Procedure 1.540(b)(1) and the trial court abused its discretion in not finding that excusable neglect was shown in this case. Accordingly, we reverse the trial court’s order dismissing the case and remand for further proceedings.

Reversed and remanded for further proceedings.

1

. Appellees did not file any briefs in this action.

Free access — add to your briefcase to read the full text and ask questions with AI

SUAREZ, C.J.

Wilmington Trust, N.A., as Trustee, for the Benefit of Registered Holders of Structured Asset Mortgage Investments II Trust 2007-AR1, Mortgage Pass-Through Certificates, Series 2007-AR1 (“Trustee”) appeals the denial of its Motion to Vacate Order Dismissing Case. We reverse.

Trustee filed a foreclosure action against Appellees Carlton A. Whyte and Diana Whyte 1 in 2013. The matter was set for trial in February 2015, but trial was delayed because Appellees filed a Suggestion of Bankruptcy. After the bankruptcy was dismissed the Trustee re-noticed the matter for trial. The trial court entered an Order re-setting the matter, but due to an electronic filing error within the Trustee’s counsel’s computer system, counsel did not receive the notice. When the Trustee’s counsel did not appear at the time of trial, the trial court dismissed the foreclosure action. Upon later learning of the dismissal, the Trustee moved to vacate the dismissal arguing excusable neglect. After hearing, the trial court denied the motion.

We believe the trial court abused its discretion in doing so. As has been explained in many cases, “[ejxcusable neglect is found where inaction results from clerical or secretarial error, [ ] a system gone awry or any other of the foibles to which human error is heir.” Elliott v. Aurora *495 Loan Servs., LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010). See also, Ocwen Loan Servicing, LLC v. Brogdon, 185 So.3d 627, 629 (Fla. 5th DCA 2015) and Edwards v. Najjar, 748 So.2d 1101, 1103 (Fla. 3d DCA 2000). In this case, the Trustee provided undisputed evidence that, due to a problem with its counsel’s computer system, counsel did not actually receive the notice for trial. Courts have consistently held that such error constitutes excusable neglect under Florida Rule of Civil Procedure 1.540(b)(1) and the trial court abused its discretion in not finding that excusable neglect was shown in this case. Accordingly, we reverse the trial court’s order dismissing the case and remand for further proceedings.

Reversed and remanded for further proceedings.

1

. Appellees did not file any briefs in this action.

Cite This Page — Counsel Stack

Bluebook (online)

199 So. 3d 494, 2016 Fla. App. LEXIS 13179, 2016 WL 4542083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilmington-trust-na-v-whyte-fladistctapp-2016.

Opinion

Related

Cite This Page — Counsel Stack