MANUEL C. MONDEJA AND ELVIA MONDEJA, APPELLANT,
v.
PEDRO P. CUEVAS, APPELLEE
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The court held that a party seeking a default must provide notice of the motion for default, but not notice of the hearing on the motion, when a notice of appearance has been filed.
The Mondejas were served with a foreclosure complaint but failed to file a responsive pleading. After the mortgagee served a motion for default, the M…
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PER CURIAM.
The order denying the appellants’ motion to set aside a default order is affirmed on the authority of Picchi v. Barnett Bank, 521 So. 2d 1090 (Fla.1988).
Florida Rule of Civil Procedure 1.500(b) permits the court to enter a default against a defendant who has failed to plead or defend an action, even where the defendant has filed or served a paper, provided that the party seeking the default has served the defendant with notice of the application for default.
In this case the Mondejas were served with the complaint for foreclosure but failed to file a responsive pleading within twenty days as required by the rule. The mortgagee then served the Mondejas with the motion for default. Appellants’ attorney subsequently filed a notice of appearance but did not submit a pleading or raise a defense to the action. Without notice of the hearing, a default was entered.
In Picchi v. Barnett Bank, 521 So. 2d 1090 (Fla.1988), the court held that when notice of appearance has been filed, rule 1.500(b) requires the plaintiff to give notice of the motion for default, but not notice of the hearing on the motion. The trial court, therefore, correctly denied the appellants’ motion to vacate the default.
Affirmed.
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Cited By
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Gables Club Marina, LLC v. The Gables Condo. & Club Ass'n, Inc., 948 So. 2d 21 (Fla. 3d DCA 2006)…Club claims that Rules 1.080(a) and 1.500(b) of the Florida Rules of Civil Procedure require service of only the motion to vacate. Gables Club relies on Picchi v. Barnett Bank of S. Fla. N.A., 521 So. 2d 1090, 1091 (Fla.1988), and Mondeja v. Cuevas, 583 So. 2d 1115, 1116 (Fla. 3d DCA 1991), to further support this proposition. However, in neither Picchi nor Mondeja was a substantive response to the motion for default filed or served. See Picchi, 521 So. 2d at 1091; Mondeja, 583 So. 2d at 1116. A review of cas…
Authorities Cited
- Blaise Picchi v. Barnett Bank OF S. Fla., N.A., 521 So. 2d 1090 (Fla. 1988)