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MDTR LLC v. Deutsche Bank National Trust Co.

Florida Court of Appeals, Fifth District

June 9, 2017

MDTR LLC AS TRUSTEE UNDER THE 6161 SEQUOIA LAND TRUST DATED THIS 15TH DAY OF MAY 2014, Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR INDYMAC INDX MORTGAGE LOAN TRUST 2005-AR23 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-AR23, ET AL., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Volusia County, William A. Parsons, Judge.

          Isaac Manzo, and J. Randy Edmonson, of Manzo & Associates, PA, Orlando, for Appellant.

          Kimberly S. Mello, and Danielle M. Diaz, of Greenberg Traurig, P.A., Tampa, for Deutsche Bank National Trust Company As Trustee For Indymac INDX Mortgage Loan Trust 2005-AR23 Mortgage Pass-Through Certificates Series 2005-AR23, Appellee.

          No appearance for other Appellees.

          EDWARDS, J.

         MDTR LLC ("MDTR") appeals the trial court's entry of final judgment of foreclosure in favor of Deutsche Bank National Trust Company ("Bank"). MDTR argues that the trial court erred in entering final judgment without a trial, purportedly pursuant to section 702.10, Florida Statutes (2015), because MDTR timely interposed written defenses and properly requested trial on the issues of damages and priority of security positions. We agree. The final foreclosure judgment is reversed and the case remanded to the trial court for further proceedings.

         Bank filed a foreclosure complaint against MDTR and other defendants. The complaint alleged that Bank was the holder of the relevant promissory note, the note was in default for non-payment, and the note was secured by a mortgage on property allegedly owned by MDTR.

         Bank filed a motion for order to show cause for the accelerated entry of final judgment of foreclosure pursuant to section 702.10. That statute allows a lienholder to "request an order to show cause for the entry of final judgment in a foreclosure action." § 702.10(1), Fla. Stat. (2015). Upon filing of such a motion, "the court shall immediately review the request and the court file in chambers and without a hearing." Id. If the court finds that the foreclosure complaint is verified and complies with statutory requirements, "the court shall promptly issue an order directed to the other parties named in the action to show cause why a final judgment of foreclosure should not be entered." Id. Section 702.10(1)(b) explains,

The right to be heard at the hearing to show cause is waived if a defendant, after being served as provided by law with an order to show cause, engages in conduct that clearly shows that the defendant has relinquished the right to be heard on that order. The defendant's failure to file defenses by a motion or by a sworn or verified answer, affidavits, or other papers or to appear personally or by way of an attorney at the hearing duly scheduled on the order to show cause presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard. If a defendant files defenses by a motion, a verified answer, affidavits, or other papers or presents evidence at or before the hearing which raise a genuine issue of material fact which would preclude entry of summary judgment or otherwise constitute a legal defense to foreclosure, such action constitutes cause and precludes the entry of a final judgment at the hearing to show cause.

Id. § 702.10(1)(b). Further, section 702.10(1)(d) states,

If the court finds that all defendants have waived the right to be heard as provided in paragraph (b), the court shall promptly enter a final judgment of foreclosure without the need for further hearing if the plaintiff has shown entitlement to a final judgment and upon the filing with the court of the original note, satisfaction of the conditions for establishment of a lost note, or upon a showing to the court that the obligation to be foreclosed is not evidenced by a promissory note or other negotiable instrument. If the court finds that a defendant has not waived the right to be heard on the order to show cause, the court shall determine whether there is cause not to enter a final judgment of foreclosure. If the court finds that the defendant has not shown cause, the court shall promptly enter a judgment of foreclosure.

Id. § 702.10(1)(d).

         In response to Bank's motion, the trial court scheduled a hearing date and issued an order to show cause, stating that the defendants, including MDTR, must appear at a hearing for ...


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