SIMON ABELSON, APPELLANT,
v.
FIRST NATIONWIDE BANK, APPELLEE
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The court held that timely filed motions preclude the entry of a default judgment, and denying a motion to dismiss without an opportunity to answer is an error.
Abelson filed several motions before a default judgment was entered against him. The trial court denied his motion to dismiss as untimely and lacking …
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PER CURIAM.
This is an appeal from a final default judgment and subsequent foreclosure sale of property. Simon Abelson, the appellant, asserts that the default judgment should not have been entered and the foreclosure sale should not have been conducted because he had filed several motions prior to the entry of the order of default. First Nationwide Bank (Bank), the appellee, contends that Abelson’s motions were untimely and without merit.
The record demonstrates that Abelson filed a notice to post cost bond, motion to abate, and motion to strike, prior to the hearing on the Bank’s motion for default. The record also demonstrates that Abelson filed a motion to dismiss the Bank’s complaint, after a hearing on the Bank’s motion for default, but, prior to rendition of the default order. Shortly thereafter, the trial court denied Abelson’s motion to dismiss as being untimely and lacking legal merit.
Florida Rule of Civil Procedure 1.500(c), provides, “(a) party may plead or otherwise defend at any time before default is entered.” Since Abelson’s motions were filed before the default was entered, Abelson’s motions were timely, and such motions precluded the entry of a default judgment against him. See Humbert v. Ackerman, 541 So. 2d 1229 (Fla. 3d DCA 1989); Board of Regents v. Hardin, 393 So. 2d 1134 (Fla. 1st DCA 1981); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980). Further, accepting as correct the trial court’s finding that Abelson’s motion to dismiss was without merit, the trial court erred in denying Abelson’s motion without giving him an opportunity to serve his answer. See Sis ter Donut, Inc. v. Cameron-Brown Company, 495 So. 2d 772 (Fla. 4th DCA 1986).
Accordingly, we reverse the final default judgment and vacate the foreclosure sale of the property and remand this cause for further proceedings.
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Anne Russell v. A.G. Edwards & Sons, Inc., 779 So. 2d 452 (Fla. 2d DCA 2000)…ing against the action to preclude entry of default. See Carder v. Pelican Cove West Homeowners Ass’n, 595 So. 2d 174, 175 (Fla. 5th DCA 1992) (holding that a pending motion to dismiss precluded entry of a default); Abelson v. First Nationwide Bank, 545 So. 2d 414, 414 (Fla. 3d DCA 1989) (pending notice to post cost bond, motion to abate, and motion to strike); Sister Donut, Inc. v. Cameron-Brown Co., 495 So. 2d 772, 773 (Fla. 4th DCA 1986) (motion to abate). Thus, the default for failure to defend was not pr…
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Johary Aviation, Inc. v. Turan, 47 So. 3d 333 (Fla. 5th DCA 2010)…a motion for more definite statement before the default was entered. These motions precluded the entry of default.1 See Carder v. Pelican Cove West Homeowners Ass’n, Inc., 595 So. 2d 174 (Fla. 5th DCA 1992); Abelson v. First Nationwide Bank, [*334] 545 So. 2d 414 (Fla. 3d DCA 1989). Consequently, the order denying the motion to set aside default must be reversed and Johary Aviation given the chance to defend. See Dawkins, Inc. v. Huff, 836 So. 2d 1062 (Fla. 5th DCA 2003) (recognizing that policy in this stat…
Authorities Cited
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
- Bd. OF Regents v. Schuyler Hardin & Transamerica Ins. Co., 393 So. 2d 1134 (Fla. 1st DCA 1981)
- Sister Donut, Inc. v. Cameron-Brown Co., 495 So. 2d 772 (Fla. 4th DCA 1986)
- Phylis Garris v. Winn Dixie Stores, Inc., 541 So. 2d 1229 (Fla. 3d DCA 1989)