JOHN S. TURAN AND MERCEDES TURAN, APPELLANTS,
v.
NATIONSTAR MORTGAGE, LLC, RAINBOW SPRINGS PROPERTY OWNERS ASSOCIATION, INC., PROGRESSIVE INSURANCE COMPANY, AS SUBROGEE OF DONNA VEZINA, ET AL., APPELLEES.
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A judicial default entered without notice to a party who has filed a document in the action is improper.
[1] A judicial default entered by the court without notice to a party who has previously filed a document in the action is improper when that party has not been served with n…
[2] A trial court order directing that a judicial default will be automatically entered in the absence of a timely answer is noncompliant with rules requiring notice of appli…
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Join FLexlaw to unlock all legal intelligenceAfter filing a motion to dismiss, the Turans failed to timely file an answer as ordered by the court. The trial court entered a judicial default witho…
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John and Mercedes Turan appeal from a final summary judgment of foreclosure in favor of Nationstar Mortgage, LLC, following the entry of a judicial default. We reverse.
After being served with Nationstar's amended complaint, the Turans, through counsel, filed a motion to dismiss. After considering Nationstar's response, the trial court denied the motion to dismiss, directing the Turans to "file an answer to the complaint within 10 days of the date of this order the failure of which may result in a judicial default being entered without further notice or hearing." When the Turans failed to timely file their answer, the trial court entered a judicial default without a motion from Nationstar or notice to the Turans. Less than a week later, they filed their answer and affirmative defenses. After the trial court denied their motion to vacate the judicial default, a final summary judgment of foreclosure was entered in favor of Nationstar from which the Turans now appeal.
As the Turans correctly argue, Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, "that party must be served with notice of the application for default." As a result, a trial court order that provides that a judicial default will be automatically entered in the absence of a timely answer is noncompliant with the rule. See Rangel v. MidFirst Bank, 187 So.3d 289, 290-91 (Fla. 4th DCA 2016) (holding that trial court's "self-executing" default language is not permitted under rule 1.500(c), which requires notice of application for default); accord Green Sols. Int'l, Inc. v. Gilligan, 807 So.2d 693, 696 (Fla. 5th DCA 2002) (stating once "any *960paper" has been served, rule 1.500(b) requires proper notice of default be given to opposing party, and court enter default). The judicial default was improvidently entered, hence, the final judgment based on that default must be set aside and this matter remanded for further proceedings.
REVERSED and REMANDED.
ORFINGER, EVANDER and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Black Point Assets, Inc. v. Ocwen Loan Servicing, LLC, 285 So. 3d 389 (Fla. 1st DCA 2019)…ed with notice of the application for default.” Consequently, a trial court reversibly errs if it enters a judicial default without providing the required notice to the defendant of the application for default. See Turan v. Nationstar Mortgage, LLC, 245 So. 3d 959 (Fla. 5th DCA 2018); Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); see also Rangel v. MidFirst Bank, 187 So. 3d 289, 290-91 (Fla. 4th DCA 2016) (holding the trial court’s “self-executing” default language included i…
Authorities Cited
- Singletary v. State, 807 So. 2d 693 (Fla. 1st DCA 2002)
- Baldomiano Rangel v. Midfirst Bank, 187 So. 3d 289 (Fla. 4th DCA 2016)