Ocwen Loan Servicing, LLC v. Brogdon, 185 So. 3d 627

In 2006 Ralph Joe Brogdon executed a mortgage; he defaulted in 2009 and died in 2010. GMAC (later Ocwen) filed to foreclose; Ocwen was substituted as plaintiff and filed an amended verified complaint including Brogdon’s minor heir and the estate’s personal representative.
The trial court set a case management conference for June 3, 2015, and a non-jury trial for June 29, 2015.
Ocwen’s counsel did not appear at the June 3 conference because, counsel attested, a firm clerical breakdown prevented the court’s order from being placed in her mailbox.
The trial court dismissed the foreclosure action without prejudice for counsel’s failure to appear and later denied Ocwen’s Florida Rule of Civil Procedure 1.540(b)(1) motion for relief from the dismissal, finding service of the order was proper.
Ocwen appealed, arguing the failure to appear resulted from excusable neglect (clerical error) and sought vacatur under rule 1.540(b)(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal should be vacated under Fla. R. Civ. P. 1.540(b)(1) for mistake, inadvertence, surprise, or excusable neglect	Counsel’s unexplained failure to receive the court’s scheduling order was due to a clerical/firm calendaring breakdown and constitutes excusable neglect warranting relief	Trial court argued counsel was properly served and denied 1.540(b)(1) relief	Reversed: the court held the undisputed clerical error constituted excusable neglect and relief under rule 1.540(b)(1) was warranted; case remanded for further proceedings

Wells Fargo Bank, N.A. v. Michaels, 166 So.3d 226 (Fla. 5th DCA 2015) (standard of review for rule 1.540(b) rulings)
Paladin Props. v. Family Inv. Enters., 952 So.2d 560 (Fla. 2d DCA 2007) (rule 1.540(b) covers honest litigation mistakes and oversights)
Schrank v. State Farm Mut. Auto. Ins. Co., 438 So.2d 410 (Fla. 4th DCA 1983) (discussion of mistakes during litigation)
Pompano Atlantis Condo. Ass’n v. Merlino, 415 So.2d 153 (Fla. 4th DCA 1982) (rule 1.540(b) relief for inadvertence)
J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66 (Fla. 4th DCA 2008) (liberal construction of rule 1.540(b) to decide cases on the merits)
Bowers v. Allez, 165 So.3d 710 (Fla. 4th DCA 2015) (excusable neglect includes clerical/secretarial error)
Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304 (Fla. 4th DCA 2010) (clerical error can be excusable neglect)
Acosta v. Deutsche Bank Nat’l Trust Co., 88 So.3d 415 (Fla. 4th DCA 2012) (failure to appear due to calendaring or clerical error qualifies for 1.540(b) relief)
SunTrust Mortg. v. Torrenga, 153 So.3d 952 (Fla. 4th DCA 2014) (inadvertent calendaring absence excused under rule 1.540(b))
Wilson v. Woodward, 602 So.2d 547 (Fla. 2d DCA 1992) (court should ordinarily sanction attorney rather than punish litigant for counsel’s failures)