Turan v. Nationstar Mortgage , 245 So. 3d 959 ( 2018 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOHN S. TURAN AND MERCEDES TURAN,
Appellants,
v. Case No. 5D17-215
NATIONSTAR MORTGAGE, LLC,
RAINBOW SPRINGS PROPERTY
OWNERS ASSOCIATION, INC.,
PROGRESSIVE INSURANCE COMPANY,
AS SUBROGEE OF DONNA VEZINA, ET AL.,
Appellees.
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Opinion filed April 27, 2018
Appeal from the Circuit Court
for Marion County,
S. Sue Robbins, Judge.
Mark P. Stopa, of Stopa Law Firm, LLC,
Tampa; Latasha Scott, of Lord Scott, PLLC,
of Tampa, for Appellants.
Charles P. Gufford, of McCalla Raymer
Leibert Pierce, LLC, Orlando, for Appellee,
Nationstar Mortgage, LLC.
No Appearance for other Appellees.
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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