Wells Fargo Bank, N.A. v. Alvarez , 2015 Fla. App. LEXIS 7975 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed May 27, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1535
Lower Tribunal No. 12-37141
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Wells Fargo Bank, N.A., etc.,
Appellant,
vs.
Roberto Alvarez, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.
Daniel C. Consuegra and Lauren E. Plaisted (Tampa), for appellant.
Appellees precluded from oral argument.
Before SHEPHERD, C.J., and SALTER and FERNANDEZ, JJ.
SALTER, J.
Wells Fargo Bank, N.A., appeals from a final order dismissing its residential
foreclosure complaint for lack of prosecution. The appellees and
homeowners/mortgagors, Roberto Alvarez and Jorge Perez, did not file an answer
brief following the issuance of an order to do so or to be precluded from
participating in oral argument.
Following our review of the initial brief and the record in this case, we
vacate the order of dismissal and remand the case for further proceedings. This
result is compelled by the dates of the pertinent pleadings and notice, the text of
Florida Rule of Civil Procedure 1.420(e), and our rulings in similar cases (see
Morla v. Armani Invs. LLC, 150 So. 3d 1253 (Fla. 3d DCA 2014); Deutsche Bank
Nat’l Trust Co. v. Basanta, 88 So. 3d 216 (Fla. 3d DCA 2011)).
The notice of lack of prosecution in this case, though shown on the docket as
December 12, 2013, bears a signature indicating that it was served January 10,
2014. Wells Fargo filed its statement of good cause under Rule 1.420(e), an
affidavit, a motion for default, and a notice of dropping defendants on March 10,
2014,1 a date less than 60 days after the trial court’s handwritten signature date on
the notice of lack of prosecution. These filings precluded dismissal for lack of
prosecution under the Rule and precedents cited above.
Order vacated; case remanded for further proceedings.
1 The statement of good cause and other pleadings are dated March 10, 2014, but
the docket reflects an e-filing date of March 7, 2014.
2