JOAQUIN O. REICHEINBACH, APPELLANT,
v.
SOUTHEAST BANK, N.A., A NATIONAL BANKING CORPORATION, APPELLEE
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Reichenbach appealed the trial court's denial of his motion to vacate a default judgment in a mortgage foreclosure proceeding. The court reversed, holding that a letter from his attorney to the bank's attorney confirming a thirty-day extension constituted a "paper served" under Florida Rule 1.500(b), entitling him to notice before default entry.
The court held that the letter confirming the extension agreement constituted a paper served within the meaning of Rule 1.500(b), thereby triggering the requirement that notice of the default application be served on the defendant. The letter need not be a responsive pleading to trigger this requirement, and it was properly served within the agreed timeframe.
[1] A party against whom a default is sought must be served with notice of the application for default if such party has filed or served any paper in the action prior to the…
[2] A letter confirming an agreed-upon extension of time to file pleadings constitutes a paper served within the meaning of Florida Rule of Civil Procedure 1.500(b), entitlin…
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Join FLexlaw to unlock all legal intelligence“By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.”
The relevant rule establishing that service of any paper prior to default entry requires notice of the default application.
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Join FLexlaw to unlock all legal intelligenceReichenbach's attorney sent a letter to the bank's attorney confirming the bank's agreement to a thirty-day extension of time for filing pleadings in …
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BASKIN, Judge.
Appellant Reichenbach challenges the trial court’s denial of his motion to vacate a default judgment entered against him in a mortgage foreclosure proceeding. He contends that the bank agreed to a thirty-day extension of time for the filing of pleadings and, relying on Rule 1.500(b), Florida Rules of Civil Procedure, he asserts that a letter confirming the extension, mailed by his attorney to the attorney for the bank, constituted service of a paper entitling him to notice prior to the entry of a default. Appellant points out that the bank continued to participate in settlement discussions with appellant’s counsel who remained unaware of the default until he received a copy of the final judgment in the mail. Upon learning of the entry of the final judgment and of the impending auction sale of his residence, appellant promptly filed a motion to set aside the final judgment; however, before the motion was heard, the bank purchased the residence at auction for the sum of $100, leaving a deficiency of ISGO^GSVS.1 The trial court subsequently denied appellant’s motion to vacate the default judgment. We reverse.
Florida Rule of Civil Procedure 1.500(b) provides:
By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.
A paper served prior to the entry of default triggers the requirement that the party against whom a default is sought be served with notice of the application. In the case under consideration, the letter2 confirming the bank’s agreement to an extension of time constituted a paper served within the meaning of rule 1.500(b). Zettler v. Ehrlich, 384 So. 2d 928 (Fla. 3d DCA 1980) (Schwartz, J., specially concurring). See also, Roland v. W.L. Motor Lines, Inc., 32 N.C.App. 288, 231 S.E. 2d 685 (1977). Any paper served prior to the entry of a default3 requires the furnishing of notice.
We reject appellee’s assertion that the letter was insufficient to require notice because it was not a responsive pleading. The rule does not limit the type of paper to be served. We note that the letter was served within the time agreed to by the bank. We hold that the letter served upon appellee fulfilled the requirements of rule 1.500(b) and entitled appellant to notice of default proceedings.
Our holding accords with the liberal policy of Florida courts to grant motions to set aside defaults. See, e.g., North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983); Schmitz v. Ryan, 427 So. 2d 1013 (Fla. 2d DCA 1983). Reasonable doubts are resolved in favor of granting the application and permitting trial upon the merits. North Shore Hospital; Wien v. Quayside Realty, Inc., 462 So. 2d 569 (Fla. 3d DCA 1985); Perdue; American Republic Insurance Co. v. Westchester General Hospital; 414 So. 2d 1163 (Fla. 3d DCA 1982); Dillon v. Machinery Wholesalers Corp., 414 So. 2d 1094 (Fla. 3d DCA 1982).
We are aware that appellant has failed to demonstrate a meritorious defense in support of his motion to vacate; nevertheless, the erroneous entry of the default entitles him to relief. Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734, 735 n. 3 (Fla. 3d DCA 1980); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974).
The Order on Defendant’s Motion to Vacate Default Judgment is reversed and the cause is remanded for further proceedings.
. The deficiency has apparently not been reduced to judgment.
. The letter stated:
As per our conversation please be advised that I have been contacted by all of the aboved [sic] captioned defendants in order to represent them.
Before filling [sic] an answer on their behalf, I will need a retainer, and also, as I understand it, Southeast Bank has given a thirty day extention [sic] to Mr. Reichenbach before continuing with the foreclosure.
.See Fla.R.Civ.P. 1.500(c); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980); Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970).
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Citator
Cited By (31 total)
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Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)…d in Florida to allow trial upon the merits where all parties appear rather than to encourage resolution of legal disputes by default. EGF Tampa Associates v. Edgar V. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988); Reicheinbach v. Southeast Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985); See H. Trawick, Florida Practice and Procedure, § 25-2 (1985). To carry out these purposes, rule 1.500(a) allows entry of a default by the clerk where no paper has been served by a defendant in an action. The underlying premise…
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OLE, Inc. v. Yael Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990)…he plaintiff is aware that a defendant is being represented by counsel who has expressed an intention to defend on the merits.”2 Id. See generally North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Reicheinbach v. Southeast Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3d DCA), cert. denied, 378 So. 2d 342 (Fla.1979).3 Second, and alternatively, the default should have been set aside by reason of the indistinguishable authority of…
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Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987)…(5th Cir.1984)2 Florida courts, in the interests of justice, have adopted a liberal policy of granting motions to set aside defaults. See, e.g., North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Rei-cheinbach v. Southeast Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985). Reasonable doubts are resolved in favor of granting the motions and permitting a determination of the controversies on the merits. Rei-cheinbach, 462 So. 2d at 612. This policy is especially appropriate in circumstances in which…
Previewing 3 of 31 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
- Broward Cnty. v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983)
- Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970)
- Morgan v. State, 289 So. 2d 744 (Fla. 4th DCA 1974)
- Mo-Con Props., Inc. v. Am. Mech., Inc., 289 So. 2d 744 (Fla. 4th DCA 1974)
- Am. Republic Ins. Co. v. Westchester Gen. Hosp., 414 So. 2d 1163 (Fla. 3d DCA 1982)
- Wien v. Quayside Realty, Inc., 462 So. 2d 569 (Fla. 3d DCA 1985)
- Schmitz v. Ryan, 427 So. 2d 1013 (Fla. 2d DCA 1983)
- Grant v. State, 384 So. 2d 928 (Fla. 3d DCA 1980)