BARNES
v.
CAPITAL ONE
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Melissa Barnes appealed the trial court's denial of two motions to vacate default judgments entered by Capital One Bank. The appellate court reversed the denial of the first motion, finding the trial court erred by refusing to hold an evidentiary hearing on Barnes' claim that she never received proper service of process, and affirmed the denial of the second motion based on an incorrect statutory citation.
The trial court erred in denying the first motion to vacate without conducting an evidentiary hearing to determine whether Barnes received proper service of process, as her allegations, if proven true, would entitle her to relief. The trial court properly denied the second motion because section 55.10 does not address vacating judgments.
[1] A judgment entered without proper service of process is void and may be attacked at any time.
[2] Due process requires fair notice and a real opportunity to be heard and defend before judgment is rendered.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A judgment is void if, in the proceedings leading up to the judgment, there is '[a] violation of the due process guarantee of notice and an opportunity to be heard.... Generally, due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered.'”
Establishes the foundational standard for when a judgment is void for lack of due process
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Join FLexlaw to unlock all legal intelligenceCapital One Bank obtained default judgments against Melissa Barnes. Barnes filed two motions to vacate these judgments. In the first motion, she alleg…
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Wagner & Hunt P.A. 5233 Coconut Creek Pkwy Margate, Florida 33093 [email protected]
PER CURIAM.
This is an appeal of the trial court's denial of Appellant, Melissa Barnes', two motions to vacate default judgments entered in favor of Appellee Capital One Bank. Appellant argues on appeal that the trial court erred in denying the Motions to Vacate Judgment because the underlying default judgment is void and she was entitled to a vacated judgment under section 55.10, Florida Statutes.
In the first Motion to Vacate Judgment, Appellant argues that the underlying default judgment is void because she never received proper service of process, and was therefore neither aware of nor present at the hearing, and was unable to respond to the claims brought against her. A judgment is void if, in the proceedings leading up to the judgment, there is "[a] violation of the due process guarantee of notice and an opportunity to be heard.... Generally, due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered." Shiver v. Wharton, 9 So. 3d 687, 690 (Fla. 4th DCA 2009) (quoting Viets v. Am. Recruiters Enters., 922 So. 2d 1090, 1095 (Fla. 4th DCA 2006)). "A judgment entered without service of process on the defendant is void and may be attacked at any time." M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So. 2d 1079, 1080 (Fla. 4th DCA 2000).
Here, the trial court denied the first Motion to Vacate Judgment, finding that the court file "contains proof of service and a letter Defendant wrote in response to the Complaint." (Order Den. Mot. To Vacate J.) Given the allegations in Appellant's motion, the trial court erred by relying on the court file as proof of service and of Appellant's participation in the case without first holding an evidentiary hearing. See Montes-Mustira v. Aurora Loan Servs., L.L.C., 98 So. 3d 778 (Fla. 4th DCA. 2012) (where a party filed a motion to vacate the judgment alleging they had never been served with process, the trial court erred in denying the motion to vacate without first conducting an evidentiary hearing because the allegations, if established as true, were sufficient to entitle them to relief); See also Talton v. CU Members Mortg., 126 So. 3d 446, 447 (Fla. 4th DCA 2013). If Appellant did not receive proper service of process, the final judgment is void.
In the Second Motion to Vacate Judgment, Appellant argued she was entitled to vacate the judgment under section 55.10, Florida Statutes. Section 55.10 does not address vacating judgments but rather addresses when a judgment becomes a lien. We find that the trial court did not err by denying this motion.
Accordingly, we AFFIRM the trial court's second Order Denying Motion to Vacate Judgment, and REVERSE the trial court's first Order Denying Motion to Vacate Judgment entered on August 10, 2017, and REMAND this cause to the trial court to conduct an evidentiary hearing to determine whether Appellant received proper service of process.
SMALL, COATES, and NUTT, concur. IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
MELISSA BARNES, Appellant,
V.
CAPITAL ONE BANK, Appellee.
APPELLATE DIVISION (CIVIL): AY CASE NO.: 502017AP000115XXXXMB L.T. NO.: 502004CC013909XXXXMB
Opinion/Decision filed: AUG 2 7 2018
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Terrie G. Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006)
- Dorsey v. State, 769 So. 2d 1079 (Fla. 2d DCA 2000)
- Shiver v. Wharton, 9 So. 3d 687 (Fla. 4th DCA 2009)
- Karletta A. Talton v. CU Members Mortg., 126 So. 3d 446 (Fla. 4th DCA 2013)
- Lipsonia Montes-Mustira and Luden Mustira v. Aurora Loan Servs., L.L.C., 98 So. 3d 778 (Fla. 4th DCA 2012)