Third District Court of Appeal
State of Florida
Opinion filed December 31, 2014.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-1247
Lower Tribunal No. 12-14749
________________
Christopher Neil Morlock,
Appellant,
vs.
Nationstar Mortgage, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Rosa I.
Rodriguez, Judge.
Stratton Feinstein & Associates, P.A., and Douglas D. Stratton, for
appellant.
Albertelli Law, for appellee.
Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
ROTHENBERG, J.
Nationstar Mortgage, LLC (“Nationstar”) filed a foreclosure action against
Christopher Neil Morlock (“Morlock”) in 2012. Morlock responded by filing a
pro se motion for an extension of time to file his answer, asserting that he needed
additional time to retain counsel. Morlock then retained counsel and filed a motion
to stay the proceedings based on his allegation that Nationstar had offered to
modify his loan. However, without notice to Morlock or his counsel, Nationstar
moved for the issuance of a default based on Morlock’s alleged failure to file a
responsive pleading, and the trial court granted that motion.
On November 22, 2013, Morlock filed a motion to vacate the judicial
default and for leave to file a response, asserting that Nationstar improperly moved
for a default without serving Morlock with the motion, citing to rule 1.500(b),
Florida Rules of Civil Procedure, which provides: “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
default against such party; provided that if such party has filed or served any
paper in the action, that party shall be served with notice of the application
for default.” (emphasis added). Importantly, Morlock attached his answer and
affirmative defenses to his November 22, 2013 motion to vacate the judicial
default.
On December 27, 2013, while Morlock’s motion to vacate the judicial
default was pending, a senior judge entered a final default judgment of foreclosure
2
in favor of Nationstar. Thereafter, the trial court properly granted Morlock’s
pending motion to set aside the judicial default and ordered Morlock to file an
answer within ten days even though he had already filed his answer and
affirmative defenses on November 22, 2013. Morlock moved to vacate the final
default judgment of foreclosure entered by the senior judge since the trial court had
set aside the judicial default as improperly entered. Rather than granting
Morlock’s motion to vacate the final default judgment, the trial court entered an
order vacating its previously-entered order setting aside the judicial default and
denied Morlock’s motion to vacate the final default judgment of foreclosure. This
order resulted in the judicial default being reinstated and the final default judgment
standing.
Morlock contends that the trial court abused its discretion by denying his
motion to vacate the final default judgment of foreclosure and by vacating the
previously-entered order setting aside the judicial default. We agree.
It appears that when the trial court denied Morlock’s motion to vacate the
final default judgment and reinstated its previously-entered order setting aside the
judicial default, it was under the mistaken impression that Morlock had not filed a
responsive pleading. However, the record clearly demonstrates that Morlock filed
his answer and affirmative defenses not once, but twice: (1) on November 22,
2013, when he filed his motion to set aside the judicial default; and (2) on February
3
25, 2014, when he attached a copy of his answer and affirmative defenses to his
emergency motion to cancel the foreclosure sale.
Because the record and the trial court’s order do not provide a basis for the
entry of a judicial default, we reverse the order under review and remand with
directions to the trial court to reinstate its order setting aside the judicial default,
vacate the final judgment of foreclosure, and cancel the certificate of title. We also
direct the clerk of court to return the bid monies.
Reversed and remanded with instructions.
4