Third District Court of Appeal
State of Florida
Opinion filed October 10, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2798
Lower Tribunal No. 17-991
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Ralph Robles and Norma Robles,
Appellants,
vs.
Federal National Mortgage Association, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.
Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for
appellants.
Popkin & Rosaler, P.A., and Daniel S. Stein and Mary Pascal Stella
(Deerfield Beach), for appellee.
Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
ROTHENBERG, C.J.
Ralph and Norma Robles (collectively, “the appellants”) appeal from a
summary final judgment of foreclosure entered on November 27, 2017 in favor of
the appellee, Federal National Mortgage Association (“Fannie Mae”). The
summary judgment of foreclosure followed the order of a judicial default entered
on June 22, 2017. For the reasons that follow, we affirm.
BACKGROUND
Ralph Robles (“Robles”) executed a note in favor of Bank of America, N.A.
on September 16, 2005. The note was secured by real property located in Miami,
Florida. Fannie Mae is the owner and holder of the note. Robles stopped making
payments on the note on February 1, 2012, and defaulted on the note; Fannie Mae
initiated a foreclosure action on January 12, 2017; and the appellants were served
with the complaint on January 26, 2017.
On February 15, 2017, counsel representing the appellants filed a notice of
appearance, a notice of unavailability, and a motion for a thirty-day extension of
time to file an answer, which was unopposed and granted on May 1, 2017, thereby
giving counsel until May 31, 2017 to file an answer. When no answer was filed by
the appellants, Fannie Mae filed an ex parte motion for a default on June 16, 2017.
Despite being captioned as “ex parte,” the motion was served on all parties,
including counsel for the appellants. Counsel for the appellants, who does not
dispute that he was served with the motion, took no action, filed no answer, and
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did not move for an extension of time. On June 22, 2017, the trial court entered a
default and the order was sent to all parties, including the appellants’ counsel.
Again, counsel for the appellants took no action, including failing to petition the
trial court to set aside the order of default, even though it is undisputed that he
received the order indicating that a default had been entered.
Four months after the entry of the default and the trial court’s notice to the
appellants and their counsel, Fannie Mae filed a motion for summary judgment of
foreclosure. Thereafter, on October 27, 2017, Fannie Mae filed a notice of hearing
setting its motion for summary judgment of foreclosure for November 27, 2017,
and served all parties, including counsel for the appellants. Again, the appellants
took no action, and on November 27, 2017, the trial court entered a final judgment
of foreclosure. This appeal followed.
STANDARD OF REVIEW
The parties agree that the question of whether a judgment is void is reviewed
de novo. Infante v. Vantage Plus Corp.,
27 So. 3d 678, 680 (Fla. 3d DCA 2009).
Foreclosure judgments based on an order of default are reviewed for an abuse of
discretion. Jacaranda, LLC v. Green Tree Servicing, LLC,
203 So. 3d 964, 965
(Fla. 2d DCA 2016).
The appellants contend that because they filed a motion for an extension of
time, they were entitled to a hearing prior to the entry of a default. Because there
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was no hearing, they contend that the entry of the default and the default final
judgment are void. The appellants also contend that the judicial default entered by
the trial court amounted to a sanction, and thus the trial court was required to
consider the requisite factors announced in Kozel v. Ostendorf,
629 So. 2d 817
(Fla. 1993). As will be discussed below, because the appellants failed to file a
responsive pleading, no hearing was required, and because they received notice
and an opportunity to be heard, the default was properly entered, and the judgment
is not void. We also reject the argument that the default was issued as a sanction,
thus requiring consideration of the Kozel factors.
ANALYSIS
The true purpose of the entry of a default is to speed the cause of action and
to prevent a dilatory or procrastinating defendant from impeding the plaintiff in the
establishment of his claim. Coggin v. Barfield,
8 So. 2d 9, 11 (Fla. 1942). It is
well-established that under rule 1.500(b), Florida Rules of Civil Procedure, when a
party against whom affirmative relief is sought has appeared in the action by filing
or serving “any papers,” no default may be entered against such party without prior
notice of the application for default. Int’l Energy Corp. v. Hackett,
687 So. 2d
942-43 (Fla. 3d DCA 1997); see also
Jacaranda 203 So. 3d at 966. This rule has
been interpreted to require sufficient notice to afford an opportunity to be heard.
McClenon v. Zartemi,
710 So. 2d 737, 739 (Fla. 3d DCA 1998); Green Solutions
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Int’l Inc. v. Gilligan,
807 So. 2d 693, 696 (Fla. 5th DCA 2002); Zeigler v. Huston,
626 So. 2d 1046, 1048 (Fla. 4th DCA 1993).
Failure to provide notice of a default when “any paper” has been filed
renders
the default void. M.W. v. SPCP Grp. V, LLC,
163 So. 3d 518, 522 (Fla. 3d DCA
2015). The appellants’ motion for an extension of time constitutes “any paper.”
Thus, the appellants were entitled to receive sufficient notice of Fannie Mae’s
application for a court default. This notice requirement was satisfied in the instant
case when the appellants, through their counsel, were served with the motion
seeking a default. This notice was sent on June 16, 2017 and, after hearing nothing
from the appellants, the trial court entered the default on June 22, 2017. The
appellants do not suggest, and we do not find, that the appellants did not receive
sufficient notice and an opportunity to be heard.
Contrary to the appellants’ argument, there is no requirement to conduct a
hearing prior to the entry of a default where the non-moving party has failed to
defend the action. See Picchi v. Barnett Bank of S. Fla., N.A.,
521 So. 2d 1090,
1091 (Fla. 1988); Fierro v. Lewis,
388 So. 2d 1361, 1362 (Fla. 5th DCA 1980).
Although the filing of a notice of appearance or a motion for an extension of time
constitutes “any paper” requiring notice prior to the entry of a default, they are not
“responsive pleadings” reflecting the intent to defend the merits of the action and
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requiring a hearing prior to the entry of the default. See Geer v. Jacobson,
880 So.
2d 717, 719 (Fla. 2d DCA 2004) (finding that a motion for extension of time does
not constitute a responsive pleading for purposes of rule 1.190(a)); see also Ziff v.
Stuber,
596 So. 2d 754, 755 (Fla. 4th DCA 1992) (finding that a notice of
appearance constitutes a non-responsive paper).
The case of Lisca v. Florida Atlantic Construction, Inc.,
219 So. 3d 872 (Fla.
4th DCA 2017), is instructive. In that case, Lisca failed to file an answer, or some
other substantive response, to the counter-claim despite being given multiple
opportunities to do so.
Id. at 878. Instead, Lisca filed a motion to dismiss, and
when that motion was denied, he filed multiple motions for extensions of time and
for reconsideration.
Id. There, like here, Lisca was also provided with notice of the
plaintiff’s motion for a default,
id., and when Lisca failed to file a responsive
pleading, the trial court entered a default against him.
Id. at 873. On appeal, the
Fourth District Court of Appeal noted that under rule 1.500(b), trial courts are
permitted to enter defaults against parties who engage in dilatory practices such as
the filing of numerous non-responsive motions, and based upon the record,
affirmed the entry of the default.
Id.
Here, the record reflects that the appellants took no action after receiving
their thirty-day extension of time; receiving notice that Fannie Mae was seeking a
judicial default based on their failure to respond to the complaint; and receiving
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notice that based on the default, Fannie Mae was seeking to set, and had set, for
hearing, its motion for summary judgment. In fact, the only documents filed by
the appellants from the time the action was filed, until the entry of the final
judgment, were the motions referenced above: counsel’s notice of appearance,
counsel’s notice of unavailability, and the motion seeking an extension of time to
file an answer to the foreclosure complaint. These documents contain no indicia
that Robles intended to defend against the foreclosure action. We, therefore,
conclude that the trial court committed no error by entering the order of default
without first conducting a hearing.
We are likewise unpersuaded by the appellants’ argument that the order of
default entered in this case was entered as a sanction. The record in the instant
case is devoid of any suggestion that the order of default in the instant case was
entered as a sanction. Instead, the record unambiguously reflects that the default
was entered due to appellants’ failure to file a responsive pleading, establish
excusable neglect, or otherwise defend against the foreclosure action.
Accordingly, we conclude that the appellants received more than sufficient notice
and failed to take action, and thus the record supports the entry of the order of
default.
CONCLUSION
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Based on this record, we find that: (1) the appellants received sufficient
notice that Fannie Mae was seeking a default against them for failing to file an
answer or other responsive pleading to its foreclosure action; (2) despite this
notice, the appellants filed no responsive pleading; (3) because the appellants filed
no responsive pleading they were not entitled to a hearing prior to the entry of the
default; (4) the order of default did not constitute a sanction; and (5) the default
was warranted. Accordingly, we find no error and affirm.
Having found no error, we likewise find that the appellants are not entitled
to an award of attorney’s fees.
Affirmed.
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