PAUL MCMULLEN, APPELLANT,
v.
HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR PHH 2007-2; E.P. WOLF CONSTRUCTION, INC.; DEBORAH LEE THOMPSON PERRYMAN; ESTATE OF CHARLES H. THOMPSON, JR., DECEASED, UNKNOWN HEIRS, DEVISEES, GRANTEES, ASSIGNEES, CREDITORS, LIENORS AND TRUSTEES OF CHARLES H. THOMPSON, JR., DECEASED, AND ALL OTHER PERSONS CLAIMING BY, THROUGH, UNDER, AND AGAINST THE NAMED DEFENDANTS); GARFIELD B. THOMPSON, UNKNOWN PARTIES IN POSSESSION # 1; UNKNOWN PARTIES IN POSSESSION #2: IF LIVING, AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE ABOVE NAMED DEFENDANTS) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSE, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS, APPELLEE
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The appellate court affirmed in part and reversed in part a lower court's decision regarding a foreclosure judgment. The court held that while a default judgment for liquidated damages in a foreclosure is permissible without notice, the inclusion of unliquidated damages, such as attorney's fees, requires notice and a hearing.
The court held that a judicial default in a foreclosure action can admit to liquidated damages without further notice. However, because the foreclosure judgment included unliquidated damages, such as attorney's fees, the appellant was entitled to notice of a hearing on those amounts.
[1] A judicial default admits every cause of action that is sufficiently well-pled and a plaintiff's entitlement to liquidated damages.
[2] In a foreclosure action, unpaid principal and interest are generally considered liquidated damages, and a defaulting party is not entitled to notice of a hearing determin…
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 judicial default was entered in this case.”
Establishes the basis for the court's initial consideration of the foreclosure judgment.
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Join FLexlaw to unlock all legal intelligencePaul McMullen appealed the denial of his motion to vacate a final judgment of foreclosure, arguing he did not receive notice of the summary judgment h…
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Appellant, Paul McMullen, appeals the denial of his motion to vacate a final judgment of foreclosure and argues that because he did not receive notice of the summary judgment hearing,1 the trial court erred in not vacating the foreclosure judgment. We reject Appellant’s argument because, as argued by Appellee, HSBC Bank USA, a judicial default was entered in this case. See Matejka v. Dulaney, 40 So.3d 865, 866 (Fla. 4th DCA 2010) (noting that a default admits every cause of action that is sufficiently well-pled as well as a plaintiffs entitlement to liquidated damages); see also Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764, 766 (Fla. 2d DCA 2010) (“Generally, in a foreclosure action, unpaid principal and interest are ‘liquidated damages,’ and a defaulting party is not entitled to notice of hearing determining those amounts where the exact sums are set forth.”); Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006) (“A default terminates the defending party’s right to further defend, except to contest the amount of unliquidat-ed damages.”); Asian Imports, Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994) (noting that actions for, the sums directly due on negotiable instruments are actions for liquidated damages). However, because the foreclosure judgment also included unliquidated damages, including, for example, attorney’s fees, we reverse and remand for a hearing on the amount of unliquidated damages owed to Appellee. See Pepe, 633 So.2d at 553 (affirming the trial court’s ruling denying the defendants’ motion to vacate the final judgment of foreclosure except as to the provision for attorney’s fees because the fees were un-liquidated damages).
AFFIRMED in part; REVERSED in part; and REMANDED.
LEWIS, C. J., CLARK and MARSTILLER, JJ., concur.
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Citator
Authorities Cited
- Asian Imports, Inc. v. Pepe, 633 So. 2d 551 (Fla. 1st DCA 1994)
- Donohue v. Brightman, 939 So. 2d 1162 (Fla. 4th DCA 2006)
- Zumpf v. Countrywide Home Loans, Inc., 43 So. 3d 764 (Fla. 2d DCA 2010)
- Anne Matejka v. Dulaney, 40 So. 3d 865 (Fla. 4th DCA 2010)