Foreclosure Defense Florida

The Sloppiness of Foreclosure Cases Leads to Liabilities For Consumers

Appellant, Wells Fargo Bank, N.A. (“Wells Fargo”), appeals the trial court’s denial
of its motion to vacate the order dismissing the case. In the underlying foreclosure action,
the trial court issued an order continuing the trial. However, it failed to serve an order
setting the new trial date. As a result, neither Wells Fargo nor the defendants, Susan
Michaels and Paul Michaels (“Appellees”), appeared for trial. The trial court sua sponte
dismissed the action. After realizing that the action had been dismissed, Wells Fargo
moved to have the order of dismissal vacated. The trial court refused to do so. We find
that the trial court abused its discretion by failing to vacate the dismissal. We reverse
with instructions to vacate the dismissal and reinstate the action.
The foreclosure action was filed in 2009. Appellees initially moved to dismiss Wells
Fargo’s complaint, but later filed an answer and affirmative defenses. On September 16,
2013, Wells Fargo filed a notice, attaching a copy of Appellees’ consent to foreclosure in
which they admitted all assertions of the complaint, withdrew their affirmative defenses,
and consented to the entry of a final judgment of foreclosure.
Thereafter, the trial court issued an order setting a non-jury trial for the one week
trial period commencing January 27, 2014, and directing pre-trial procedures, including
appearance at the January 22, 2014 docket sounding. This order was served on all
parties. At the docket sounding, the trial was scheduled for January 29, 2014. On
January 23, 2014, Wells Fargo filed a notice of trial for January 29, 2014.

It is well-settled law that an order entered without notice is void. Taylor v. Bowles,
570 So. 2d 1093, 1094 (Fla. 4th DCA 1990) (“When a party has no notice of a trial date,
the trial court abuses its discretion when it proceeds with a final hearing and enters final
judgment.”); Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988) (“A judgment
entered without notice to a party is void.”); Falkner v. Amerifirst Fed. Sav. & Loan Ass’n,
489 So. 2d 758, 759 (Fla. 3d DCA 1986) (“Where the uncontroverted facts showed that
the Falkners did not receive notice, the trial court was obligated to grant relief from the
judgment as a matter of law.”); see also Touloute v. City of Fort Lauderdale, 80 So. 3d
1129, 1129 (Fla. 4th DCA 2012) (holding that party was denied due process when party
failed to receive notice of status conference); Watson v. Watson, 583 So. 2d 410, 411
(Fla. 4th DCA 1991) (holding where face of order setting trial shows that trial court did not
mail notice to appellant’s correct address, trial court abuses its discretion in denying
motion to set aside judgment).

The record is clear that the trial court did not enter or serve a written order, nor did
it otherwise give notice to the parties, of the February 19, 2014 docket sounding or the
February 27, 2014 trial date. Under those circumstances, the trial court should have
granted Wells Fargo’s motion to vacate the dismissal. Its failure to do so amounts to an
abuse of discretion that has further delayed and increased the expense of the resolution
of this case.

Wells v. Michaels

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