FORECLOSURE CASELAW UPDATE- SUMMARY JUDGMENT REVERSED FOR FAILURE TO ATTEND A SUMMARY JUDGMENT OF FORECLOSURE HEARING

BankUnited, FSB, filed a foreclosure complaint against Brian Kelly.
In response, Kelly filed an answer and affirmative defenses, which were
later amended. BankUnited requested summary judgment, and a
hearing was held. However, Kelly’s attorney was unable to attend the
hearing due to a secretarial error, which was evidenced by affidavit.
Although Kelly’s attorney immediately requested rehearing pursuant to
Florida Rule of Civil Procedure 1.530 based upon excusable neglect, it
was denied. We find this was an error and reverse.
A trial court may relieve a party from a final judgment upon a showing
of excusable neglect. Denial of relief on such basis is reviewed for an
abuse of discretion. See SunTrust Bank v. Puleo, 76 So. 3d 1037, 1039
(Fla. 4th DCA 2011).
We have previously held that an attorney’s failure to appear due to
secretarial error is excusable neglect. J.J.K. Int’l., Inc. v. Shivbaran, 985
So. 2d 66, 69 (Fla. 4th DCA 2008). Because here, Kelly’s attorney failed
to appear as a result of his secretary mistakenly scheduling multiple
hearings at different courthouses at the same time, the trial court erred
by refusing to rehear the motion for summary judgment.
Because the record demonstrates excusable neglect, it was error to
deny Kelly’s motion for rehearing. As a result, we find it necessary to
reverse and remand to the trial court for rehearing of BankUnited’s
motion for summary judgment.