Thompson v. Hancock Bank
158 So. 3d 613
| Fla. Dist. Ct. App. | 2013Background
- Hancock Bank filed a mortgage foreclosure complaint against Leslie and Beverly Thompson on August 28, 2012.
- After the Thompsons sought and received an extension, they filed a motion to dismiss; the trial court denied the motion and ordered the Thompsons to answer within 30 days (Jan. 9, 2013).
- The Thompsons served their answer and affirmative defenses on February 12, 2013; Hancock served a motion for entry of default on February 13, 2013; both documents were filed with the clerk on February 15, 2013.
- The trial court entered defaults against the Thompsons on February 21 and 25, 2013, and on March 20, 2013 entered a final judgment of foreclosure without a hearing.
- The Thompsons moved to set aside the defaults and later moved to cancel sale/for relief from default and the default judgment, arguing their answer was served before entry of default and a late filing resulted from clerical error; the trial court denied relief after a hearing.
- The Thompsons appealed, arguing the trial court erred because rule 1.500(c) permits pleading or defending up to the time default is entered, and their answer was served before default.
Issues
| Issue | Plaintiff's Argument (Hancock) | Defendant's Argument (Thompsons) | Held |
|---|---|---|---|
| Whether entry of default was proper when Thompsons filed answer after the court-ordered 30-day deadline but before default was entered | The Thompsons violated the court order by not filing within 30 days; default was appropriate | Rule 1.500(c) allows pleading up to the moment default is entered; answer was served before default so entry of default was improper | Reversed — default improper where responsive pleading was served before entry of default |
| Whether the default judgment must be set aside because it rests on an erroneously entered default | Default judgment stands because Thompsons failed to show excusable neglect or due diligence to justify relief | Default judgment is invalid if underlying default was improperly entered; relief warranted | Reversed — erroneous default entitles party to relief from default judgment |
| Whether clerical error/excusable neglect justification was required to set aside the default | Court need not set aside for mere late filing if court order was violated and no excusable neglect shown | Even without excusable neglect, service before entry of default precludes default under rule 1.500(c) | Service before default controls; court’s reliance on missed deadline was erroneous |
| Whether policy favors disposition on the merits over defaults | No separate policy argument; relied on enforcement of court orders | Florida favors adjudication on merits; defaults disfavored | Court applied rule and precedent favoring merits; default reversed |
Key Cases Cited
- Reicheinbach v. Southeast Bank, N.A., 462 So.2d 611 (Fla. 3d DCA) (erroneous entry of default entitles party to relief)
- Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA) (default must be set aside where responsive pleading served prior to default)
- Nants v. Faria, 553 So.2d 369 (Fla. 5th DCA) (responsive pleading served before default requires setting aside default)
- Nasrallah v. Smith, 538 So.2d 554 (Fla. 5th DCA) (same)
- Haitian Cmty. Flamingo Auto Parts Corp. v. Landmark First Nat’l Bank of Ft. Lauderdale, 501 So.2d 170 (Fla. 4th DCA) (answer filed after court-ordered deadline but before entry of default precludes default)
- Ingaglio v. Ennis, 443 So.2d 459 (Fla. 4th DCA) (same principle)
- North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.) (Florida’s preference for adjudication on the merits)
- KFC USA Inc. v. Depew, 879 So.2d 55 (Fla. 5th DCA) (reiterating preference for merits over default)
Reversed and remanded for further proceedings.