FRANK REILLY, APPELLANT,
v.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR JP MORGAN TRUST 2007-S1, APPELLEE
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Frank Reilly appeals a foreclosure judgment, arguing the trial court erred by proceeding to trial before the case was at issue. The Fourth District Court of Appeal agrees and reverses, holding that because Mr. Reilly never answered the complaint and U.S. Bank never obtained a default against him, the case was not properly at issue when trial was set and held.
The court held that the trial court committed reversible error by proceeding to trial before the case was at issue. A case is not at issue unless an answer has been served by or a default has been entered against all defending parties. Because U.S. Bank did not obtain a default against Mr. Reilly and Mr. Reilly did not file an answer, the action was not at issue when the trial was held.
[1] A case is not "at issue" for trial purposes until an answer has been served by or a default entered against all defending parties.
[2] A trial court errs by proceeding to trial when the case is not yet at issue.
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]n answer must be served by or a default entered against all defending parties before the action is at issue.”
Establishes the legal standard for when a case is at issue under Florida civil procedure
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Join FLexlaw to unlock all legal intelligenceMr. Reilly and Mynabel Roche executed a promissory note and mortgage. After they failed to make payments, U.S. Bank initiated foreclosure proceedings.…
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Appellant Frank Reilly appeals a final judgment of foreclosure, arguing that the trial court, erred by proceeding to. trial where the case was not yet at issue.1 We .agree and reverse.
Mr. Reilly and Mynabel Roche, "who were married at the time, executed a promissory note and a mortgage.2 After *621they failed to make .payments, U.S. Bank brought a foreclosure action. U.S. Bank was able to personally serve Ms. Roche with the complaint. It was unable, however, to personally serve Mr. Reilly, and claimed that he was avoiding service. U.S. Bank therefore sought to proceed with notice by publication.
Notice regarding the foreclosure action was published on December 3 and 10, 2013. Also on December 3, the court set the case for trial after receiving an answer from Ms. Roche (but not Mr. Reilly).
On January 2, 2014, Mr. Reilly moved for an extension of timé to respond to the complaint. This was Mr. Reilly’s only filing. The trial court did not rule on his request, but proceeded to trial on January 30, 2014. Neither Mr. Reilly nor Ms. Roche attended. The trial court subsequently entered a final judgment of foreclosure in favor of U.S. Bank.
Florida Rule of Civil Procedure 1.440 provides that a case may be set for trial when it is “at issue.” First, however, “[a]n answer must be served by or a default entered against all defending parties before the action is at issue.” Ocean Bank v. Garcia-Villalta, 141 So.3d 256, 258 (Fla. 3d DCA 2014) (quoting Bennett v. Cont'l Chems., Inc., 492 So.2d 724, 727 n. 1 (Fla. 1st DCA 1986)). Thus, where a defendant has not yet answered the complaint, and the plaintiff has failed to obtain a default, the action is not yet at issue. U.S. Bank Nat’l Ass’n v. Croteau, 183 So.3d 1089 (Fla. 4th DCA 2015).
U.S. Bank did;not obtain a default against Mr. Reilly. Nor did Mr. Reilly file an answer. Therefore, the action was not at issue, either when the trial court set the trial date or when the trial itself was held. This is reversible error. See Tucker v. Bank of N.Y. Mellon, 175 So.3d 305, 306 (Fla. 3d DCA 2014). Accordingly, we reverse the final judgment of foreclosure as to Mr. Reilly and remand to the trial court for further proceedings consistent with the foregoing.
This reversal does not. affect the final judgment as to .Ms. Roche. Additionally, although Mr. Reilly alsq raises challenges on appeal regarding the sufficiency of the service by publication and the trial court’s persqnal jurisdiction, we decline to rule on these issues. As Mr. Reilly did not raise them before the trial court, he may still argue them on remand.
Reversed and remanded.
WARNER, STEVENSON and FORST, JJ., concur.
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Ludeca, Inc. v. Alignment & Condition Monitoring, Inc. (Fla. 3d DCA 2019)…ready for trial.” Bennett v. Cont’l Chems., Inc., 492 So. 2d 724, 726 (Fla. 1st DCA 1986) (citation omitted). “Florida Rule of Civil Procedure 1.440 provides that a case may be set for trial when it is ‘at issue.’” Reilly v. U.S. Bank Nat’l Ass’n, 185 So. 3d 620, 621 (Fla. 4th DCA 2016). A case is at issue “after any motions directed to the last pleading served have been disposed of or, if no such motions are served, [twenty] days after service of the last pleading.” Fla. R. Civ. P. 1.440(a). Although ru…
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Ludeca, Inc. v. Alignment & Condition Monitoring, Inc. (Fla. 3d DCA 2019)…ready for trial.” Bennett v. Cont’l Chems., Inc., 492 So. 2d 724, 726 (Fla. 1st DCA 1986) (citation omitted). “Florida Rule of Civil Procedure 1.440 provides that a case may be set for trial when it is ‘at issue.’” Reilly v. U.S. Bank Nat’l Ass’n, 185 So. 3d 620, 621 (Fla. 4th DCA 2016). A case is at issue “after any motions directed to the last pleading served have been disposed of or, if no such motions are served, [twenty] days after service of the last pleading.” Fla. R. Civ. P. 1.440(a). Although ru…
Authorities Cited
- Rodger H. Bennett v. Cont'l Chems., Inc., 492 So. 2d 724 (Fla. 1st DCA 1986)
- Ocean Bank v. Garcia-Villalta, 141 So. 3d 256 (Fla. 3d DCA 2014)
- Tucker v. The Bank OF NEW York Mellon, 175 So. 3d 305 (Fla. 3d DCA 2014)
- U.S. Bank Nat'l Ass'n v. Croteau, 183 So. 3d 1089 (Fla. 4th DCA 2015)