EDDIE L. STEPHENS, APPELLANT,
v.
THE BANK OF NEW YORK, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT AS OF MAY 31, 1997, SERIES 1997-B, APPELLEE
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The appellate court reversed the trial court's denial of a motion to set aside a default and summary final judgment in a mortgage foreclosure action, holding that the defendant was entitled to relief under Florida Rule 1.540(b) because the plaintiff obtained a default to which it was not entitled.
A trial court errs in denying a motion to set aside a default and summary final judgment when the plaintiff obtained a default to which it was not entitled under Florida Rule 1.500(a).
[1] A mortgagee is not entitled to a default judgment when it has not complied with the procedural requirements of Florida Rule 1.500(a), and a trial court must set aside suc…
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Join FLexlaw to unlock all legal intelligenceIn a mortgage foreclosure action, the Bank of New York obtained a default from the clerk and subsequently obtained a summary final judgment of foreclo…
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PER CURIAM.
In this mortgage foreclosure action, Appellant challenges the trial court’s order denying his motion to set aside a default and a summary final judgment. The motion sought relief pursuant to rule 1.540(b), Florida Rules of Civil Procedure.
Appellee obtained from the clerk a default to which it was not entitled, see rule 1.500(a), Florida Rules of Civil Procedure, but never made any effort to set it aside. The default clouded matters and prejudiced Appellant’s rights to proper notice and evidentiary hearing. The trial court, therefore, erred in denying the motion to set aside the default and judgment. See Employers’ Fire Ins. Co. v. Department of Labor & Employment Sec., 629 So. 2d 1118 (Fla. 1st DCA 1994) (citing Overholser v. Overstreet, 383 So. 2d 953 (Fla. 3d DCA 1980); Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980)); Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984); Beztak Constr. Co. v. Resting Carpets, Inc., 596 So. 2d 1297 (Fla. 2d DCA 1992); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974). Accordingly, the order denying the rule 1.540(b) motion is reversed, and the trial court is directed on remand to vacate and set aside the final judgment of foreclosure.
REVERSED and REMANDED.
BOOTH and BENTON, JJ„ and SHIVERS, DOUGLASS B., Senior Judge, CONCUR.
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Keeter v. The Bank OF NEW York Mellon fka The Bank of N.Y. for the Certificateholders of Cwalt, Inc., 194 So. 3d 469 (Fla. 1st DCA 2016)…prejudice to appellant filing in the trial court a motion seeking relief from judgment pursuant , to Florida Rule of Civil Procedure 1.540(b). See Torres v. One Stop Maint. & Mgmt., Inc., 178 So. 3d 86 (Fla. 4th DCA 2015); Stephens v. Bank of N.Y., 765 So. 2d 294 (Fla. 1st DCA 2000); Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980); Straughn v. G.J.M., Inc., 372 So. 2d 1163 (Fla. 1st DCA 1979). Appellant correctly notes that the clerk could not enter ’a default against her when she had filed a motion the…
Authorities Cited
- Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980)
- Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984)
- Morgan v. State, 289 So. 2d 744 (Fla. 4th DCA 1974)
- Mo-Con Props., Inc. v. Am. Mech., Inc., 289 So. 2d 744 (Fla. 4th DCA 1974)
- Overholser v. Overstreet, 383 So. 2d 953 (Fla. 3d DCA 1980)
- Beztak Constr. Co. v. Kesling Carpets, Inc., 596 So. 2d 1297 (Fla. 2d DCA 1992)
- Emp'rs' Fire Ins. Co. v. State, 629 So. 2d 1118 (Fla. 1st DCA 1994)
- Bleakley v. Jacquelene Anne Bleakley, 629 So. 2d 1118 (Fla. 4th DCA 1994)