IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MDTR LLC AS TRUSTEE UNDER
THE 6161 SEQUOIA LAND TRUST
DATED THIS 15TH DAY OF MAY 2014,
Appellant,
v. Case No. 5D15-4506
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.
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Opinion filed June 9, 2017
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
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objections to entry of a final judgment, MDTR attended the show cause hearing as
scheduled.
Accordingly, we reverse the final judgment entered in favor of Bank and remand
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
COHEN, C.J., and EVANDER, J., concur.
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Several days before the scheduled hearing, MDTR filed an affidavit of one of its
managers, who was also one of MDTR's attorneys, in opposition to entry of final
judgment. The affidavit stated that “MDTR contests the amount of damages alleged in
the Plaintiff’s Complaint as MDTR has not had the opportunity to review a full payment
history of the account” and that “MDTR denies that its ownership interest is inferior to
Plaintiff’s Mortgage until such time as Plaintiff proves as much by authentic, admissible
evidence.” It also stated, “MDTR must be afforded the opportunity to conduct discovery
in order to verify and potentially contest the amounts alleged due in Plaintiff’s Complaint
and Plaintiff’s proposed Final Judgment.”
Despite MDTR’s timely filed written defenses and attendance at the hearing, the
trial court proceeded to enter a final judgment of foreclosure in favor of Bank at the
conclusion of the show cause hearing.
In BarrNunn, LLC v. Talmer Bank & Trust, 106 So. 3d 51 (Fla. 2d DCA 2013), the
Second District Court of Appeal found that the trial court erred under similar
circumstances by entering a final judgment after the defendant had timely filed written
defenses. The Second District reversed the trial court’s entry of final judgment because
“the clear and unambiguous language in subsection (b) . . . declares that the filing of
defenses ‘constitutes cause and precludes the entry of a final judgment.’” BarrNunn, 106
So. 3d at 54. It was likewise error here for the trial court to proceed to entry of final
judgment in this case given that MDTR had filed an affidavit raising defenses. Both the
statute and the trial court’s show cause order state that such action constitutes cause
which precludes the entry of a final judgment. In addition to filing written defenses and
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objections to entry of a final judgment, MDTR attended the show cause hearing as
scheduled.
Accordingly, we reverse the final judgment entered in favor of Bank and remand
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
COHEN, C.J., and EVANDER, J., concur.
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