JUDY ANN JEAN KEETER, APPELLANT,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2006-OA11, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA11, APPELLEE
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Keeter appealed a foreclosure judgment, challenging the entry of default and the award of unliquidated damages (attorney's fees). While affirming due to lack of proper preservation of issues, the court recognized defects in the lower court's proceedings and preserved Keeter's right to seek relief from judgment under Florida Rule of Civil Procedure 1.540(b).
The court affirmed the judgment due to lack of proper preservation of the issues on appeal, but recognized that the default was erroneously entered and that the award of attorney's fees was improper without notice of hearing. The court preserved Keeter's right to seek relief from judgment under Florida Rule of Civil Procedure 1.540(b) in the trial court.
[1] A default entered by the clerk is erroneous when a party has filed a motion in the action the previous day.
[2] A default and any consequent final judgment should be set aside upon proper application when the default was erroneously entered.
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Join FLexlaw to unlock all legal intelligence“when a party has served any paper in the action, a default entered by the clerk is erroneous and upon proper application by such party, the default and final judgmént consequent thereon should be set aside”
Establishes that Keeter's prior filing of a motion made the clerk's default entry erroneous
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Join FLexlaw to unlock all legal intelligenceKeeter was a defendant in a foreclosure action brought by Bank of New York Mellon as trustee. The clerk entered a default against Keeter despite her h…
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In this appeal from a final judgment of foreclosure, appellant seeks reversal of the judgment on a number of grounds. Although we affirm due to the lack of proper preservation,' our affirmance is without 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 previous day. See Stuart-Findlay v. Bank of Am., N. A., 183 So.3d 468, 471 (Fla. 4th DCA 2016) (holding that when a party has served any paper in the action, a default entered by the clerk .is erroneous and upon proper application by such party, the default and final judgmént consequent thereon should be set aside). In addition, appellant did not receive proper notice of hearing .pursuant to Florida Rule of Civil Procedure 1.440(c) where unliquidated damages in the form of attorney’s fees were awarded to appellee. See Ciprian-Escapa v. City of Orlando, 172 So.3d 485, 488 (Fla. 5th DCA 2015) (holding that a judgment rendered without a trial and without notice to the defaulting party is void as to any unliqui-dated damages and may b¿ collaterally attacked at any time); Asian Imports, Inc. v. Pepe, 633 So.2d 551, 553 (Fla. 1st DCA 1994) (holding that the defaulting mortgagor was entitled to a notice of hearing on the issue of attorney’s fees).
AFFIRMED.
THOMAS, WINOKUR, and JAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Crocker v. Waldron (Fla. 5th DCA 2024)…t prejudice to Crocker filing, in the trial court, a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(4) or Florida Small Claims Rule 7.190(b)(4), if he can do so in good faith. See Keeter v. Bank of N.Y. Mellon, 194 So. 3d 469, 469 (Fla. 1st DCA 2016) (“Although we affirm due to the lack of proper preservation, our affirmance is without prejudice to appellant filing in the trial court a motion seeking relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(…
Authorities Cited
- Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980)
- Asian Imports, Inc. v. Pepe, 633 So. 2d 551 (Fla. 1st DCA 1994)
- Ciprian-Escapa v. City OF Orlando, 172 So. 3d 485 (Fla. 5th DCA 2015)
- Clive Stuart-Findlay v. Bank OF Am., 183 So. 3d 468 (Fla. 4th DCA 2016)
- Torres v. ONE Stop Maint. & Mgmt., Inc., 178 So. 3d 86 (Fla. 4th DCA 2015)
- Straughn v. G. J. M., Inc., 372 So. 2d 1163 (Fla. 1st DCA 1979)
- Stephens v. The Bank OF NEW York under the Pooling & Servicing Agreement as of May 31, 765 So. 2d 294 (Fla. 1st DCA 2000)
- Schaefer v. State, 765 So. 2d 294 (Fla. 1st DCA 2000)