final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 12-20514 Mavel Ruiz, Judge.
Kenneth Eric Trent (Fort Lauderdale), for appellant.
Law Group, PLLC., and Shawn Taylor and Brandi Wilson (Fort
Lauderdale), for appellee.
LOGUE, SCALES, and HENDON, JJ.
Marie Beckell, appeals the entry of a final judgment of
mortgage foreclosure in favor of the lender, Bank of New York
Mellon. The sole issue on appeal is whether it was proper to
enter judicial default against Ms. Beckell. Because Ms.
Beckell filed documents in the underlying action but was
deprived of a meaningful amount of time to respond to the
application for default, we reverse.
25, 2012, the Bank filed a foreclosure complaint against Ms.
Beckell, to which she filed a pro se answer in
response. Subsequently, the Bank filed an amended complaint
naming another alleged property owner as an additional
defendant. Ms. Beckell did not amend her answer or otherwise
respond. At 4:33 p.m. on December 8, 2015, the Bank moved for
default against Ms. Beckell. The following day, the trial
court granted the Bank's motion and entered judicial
default against Ms. Beckell for failure to serve a responsive
pleading to the amended complaint. Ms. Beckell was included
on the certificate of service for both the motion and order.
Subsequently, counsel appeared for Ms. Beckell, and twice
moved to vacate the default. Notwithstanding, the case went
to a bench trial with a default judgment entered against Ms.
Beckell. Following trial, final judgment was entered against
Ms. Beckell. This appeal followed.
Florida law, "[i]t is fundamental that when a party
against whom affirmative relief is sought has appeared in an
action by filing or serving papers, that party shall be
served with notice of the application for default as required
by Florida Rule of Civil Procedure 1.500(b)." Yellow
Jacket Marina, Inc. v. Paletti, 670 So.2d 170, 171 (Fla.
1st DCA 1996). Rule 1.500(b) authorizes entry of default
against a party who failed to defend itself, but requires
notice be given to a party that filed or served any document:
(b) By the Court. When a party against whom affirmative
relief is sought has failed to plead or otherwise defend as
provided by these rules or any applicable statute or any
order of court, the court may enter a default against such
party; provided that if such party has filed or served any
document in the action, that party must be served with notice
of the application for default.
Fla. R. Civ. Pro. 1.500(b).
recently reversed entry of default under circumstances
similar to those in the case at bar. In Falcon v.
Wilmington Savings Fund Society, FSB, 258 So.3d 565
(Fla. 3d DCA 2018), the borrower filed documents in the
action, but failed to respond to the complaint. Id.
at 566. The lender moved for default and served the borrower.
Id. Two-and-a-half hours later, the trial court
entered default against the borrower. Id. We
explained that the "'notice of application'
[requirement] . . . would be purposeless unless given in
sufficient time to permit some meaningful action to be taken
upon it after its receipt." Id. (citing
Cohen v. Barnett Bank of S. Fla., 433 So.2d 1354,
1355 (Fla. 3d DCA 1983)). As a result, we held that