In short: The homeowner lost. In Gutierrez v. BAC Home Loans Servicing (Fla. 3d DCA 2014), the court affirmed the foreclosure judgment in a one-word per curiam affirmance, without an opinion. The homeowner had argued she lacked real notice of trial and should have gotten a continuance while her motion to vacate a default was pending.
The Facts
Because the Third District affirmed without a written opinion, there are no court findings to report. What follows is what the parties argued, as described in the oral argument video.
According to the homeowner, she had been misled by a real estate agent who was later arrested for fraud, and a default was entered against her in the foreclosure case. New counsel moved to vacate the default. Counsel said he learned the case was set for trial only the night before, when the bank’s lawyer called about a consent judgment. The trial court denied a continuance and entered a final judgment of foreclosure.
The issues argued included whether the order setting trial had been properly served (the bank pointed to a certificate of service about 52 days before trial), whether trial could proceed while a motion to vacate the default was pending, the late arrival of a witness list, and counsel’s duty to monitor the docket.
The Decision
The court entered a per curiam affirmance (PCA): the word “Affirmed,” with no explanation. A PCA leaves the trial court’s judgment in place but sets no precedent, and it cannot be reviewed further by the Florida Supreme Court. We do not know which of the bank’s arguments the panel accepted, only that the homeowner did not show reversible error.
The Law
Florida Rule of Civil Procedure 1.440 governs setting cases for trial. The rule was rewritten effective January 1, 2025, along with new case management requirements in Rule 1.200. Under the current rule, the court sets trial through its case management orders, and notice is served under the service rules. A certificate of service on the order setting trial is usually strong evidence that notice was given. A party who claims non-receipt has to prove it.
Continuances are within the trial judge’s discretion and are rarely reversed. A defaulted defendant who wants to defend generally must move promptly to set aside the default under Rule 1.500 and Rule 1.540, showing excusable neglect, a meritorious defense, and due diligence.
Current law (2026): Rule 1.440 (setting action for trial) was substantially amended effective January 1, 2025 (In re Amendments to Fla. Rules of Civil Procedure, 2024), together with the new case management rule 1.200. The 2013-era ’20 days after notice / at issue’ framework that was argued no longer applies in the same form.
Lessons
- Monitor the docket yourself. A certificate of service saying notice went out is hard to overcome.
- A pending motion to vacate a default does not automatically stop a trial. Get it heard.
- Appeals of denied continuances are very hard to win. The standard is abuse of discretion.
- Be wary of anyone outside a law firm promising to handle a foreclosure for you.
Source: Gutierrez v. BAC Home Loans Servicing, No. 3D13-265 — Fla. 3d DCA (February 19, 2014).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
"We Never Got the Trial Notice" — Foreclosure Anyway | Gutierrez v. BAC Home Loans, 3D13-0265
Go Deeper
- Served With a Foreclosure Lawsuit in Florida? The 20-Day Answer and the Lis Pendens
- How to Vacate a Default or Final Judgment in Florida: Rule 1.540 and Its Limits
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
Frequently Asked Questions
What if I didn't get notice of my foreclosure trial in Florida?
Lack of notice of trial can be grounds for relief, but you must prove it. A certificate of service on the order setting trial creates a strong presumption that notice was sent. In Gutierrez v. BAC the homeowner argued she lacked real notice, and the appellate court affirmed the foreclosure judgment without opinion.
Can a foreclosure trial go forward while a motion to vacate default is pending?
It can happen if the motion has not been heard. The defendant must set the motion for hearing and press it. Gutierrez raised this issue on appeal, and the Third District affirmed without explaining its reasons, so the case is not precedent either way.
What does a PCA mean in a Florida appeal?
A per curiam affirmance (PCA) is a one-word decision, “Affirmed,” with no written opinion. The trial court’s ruling stands, but the decision is not precedent for other cases, and generally the Florida Supreme Court cannot review it. A PCA usually ends the appeal, though a motion for rehearing can sometimes be filed within 15 days.
How do I set aside a default in a Florida foreclosure?
File a motion promptly showing excusable neglect for the failure to respond, a meritorious defense, and due diligence in seeking relief once you learned of the default. Then get the motion heard before trial. Waiting or relying on a third party who is not a lawyer can forfeit your defenses.
Talk to a Florida foreclosure defense lawyer
Weidner Law, P.A. has defended Florida homeowners in foreclosure and foreclosure appeals for more than 25 years. If you need a foreclosure defense lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
