TURAN
v.
NATIONSTAR MORTGAGE
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John and Mercedes Turan appealed a final summary judgment of foreclosure entered by the trial court following a judicial default. The court reversed and remanded, finding that the trial court improperly entered a judicial default without providing the Turans notice of the application for default, in violation of Florida Rule of Civil Procedure 1.500(b).
The court reversed the judgment and remanded the matter because the trial court improperly entered a judicial default without providing the Turans notice of the application for default, in violation of Florida Rule of Civil Procedure 1.500(b). Once a party has filed or served any document in an action, the rule requires that the party be served with notice of the application for default, and a trial court order providing for automatic judicial default is noncompliant with the rule.
[1] When a party has filed or served any document in a civil action, Florida Rule of Civil Procedure 1.500(b) requires that the party be served with notice of an application…
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Join FLexlaw to unlock all legal intelligenceThe Turans were served with Nationstar Mortgage's amended complaint and filed a motion to dismiss through counsel. The trial court denied the motion a…
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PER CURIAM. 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 paper” 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.
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Citator
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)