FL 1st DCA Default Judgment REVERSED – Appellants were “under the reasonable belief that the foreclosure action had been abated.” During Loan Mod

a Delaware Limited Partnership, and

CASE NO. 1D10-2690


From the decision…

Appellants seek reversal of the trial court’s summary denial of their motion to set aside and vacate a default judgment entered against them in the foreclosure proceedings below. For the reasons explained below, we reverse the trial court’s order.

Appellants were served with a foreclosure complaint in February 2009, to which they did not file a response due to what they understood to be assurances by the loan servicer representative.

Appellants were assured by the loan service representative that the foreclosure proceeding would be abated pending application for, and approval of, a loan modification agreement.

Appellants also alleged that between that date and October 2009 they had several conversations with representatives of the loan servicer involving additional required documents, and “[a]t no time during those conversations were [they] advised that the foreclosure had moved forward.”

Appellants further asserted that they did not receive any foreclosure documents after the initial complaint until receiving the notice that a foreclosure sale on their home was rescheduled for May 12, 2010. During the entire time preceding receipt of this notice, Appellants were “under the reasonable belief that the foreclosure action had been abated.”

According to Appellants’ motion and affidavits, in October 2009 they were told that the lender was willing to agree to a modification pursuant to certain terms, including an immediate payment of $8,500 to be applied toward satisfaction of outstanding interest…

While the foregoing alleged negotiations were taking place, Appellees filed a default motion on May 19, 2009, followed by a motion for summary judgment on July 16, 2009. Final summary judgment was entered on November 11, 2009. After this order was entered, Appellants made five payments in accordance with what they understood was a modified mortgage agreement. The last of these payments was made on March 28, 2010. The trial court entered an order on March 29, 2010, rescheduling the foreclosure sale for May 12, 2010, and the Notice of Sale was issued two days later. By letter dated April 29, 2010, Appellees returned Appellants’ final payment of $1,451 and informed Appellants that it would not be credited to their account “[d]ue to the pending foreclosure action” and that their account “needs to be reinstated through our attorney.”

On May 7, 2010, Appellants’ attorneys filed the motion to set aside the default judgment. Appellees filed no response to either the motion or affidavits. The trial court did not conduct an evidentiary hearing to address Appellants’ allegations, and entered its order denying the motion on May 11, 2010. This order contained no findings of fact or conclusions of law.

It is the trial court’s failure to conduct an evidentiary hearing that warrants reversal of the denial of Appellants’ motion to set aside the default judgment. This court has held that a trial court is required to conduct an evidentiary hearing before entering an order denying a motion to set aside a judgment.

Full decision below…



h/t Matt Weidner


Jorge Palacio and Elizabeth r. Palacio, V. Alaska Seaboard Partners Limited Partnership

2 Responses to “FL 1st DCA Default Judgment REVERSED – Appellants were “under the reasonable belief that the foreclosure action had been abated.” During Loan Mod”
  1. indio007 says:

    Another example of the abuse “rubber stamp”. Why pay filing fees or this judges salary if he won’t do anything “judicial”.

    • Concerned says:

      I agree that these judges should receive notice that any cases where they have refused to correctly apply the law, such as the failure to even conduct an evidentuary hearing, will be grounds to reduce their salary. In fact the costs of the full attorneys fees and the costs of the appelate court should be borne by the judges whose failure led to the case needing an appeal.

      Such a change to the ‘contract’ with which the judges serve the state would give the judges an incentive to stop playing favorites with the banks.

      These judges do not want these cases. Too BAD. It is time the judges experienced repercussions from their faulty work.

      I think the appeals courts should start handing out smack-downs for the judges. Let the judges have to let some homeless perosn they caused to improperly loose THEIR home to get to occupy the JUDGE’s residence. Let the Judge have to move into the a homeless shelter for a month, while continuing to work on non-foreclosure cases. No special cot in the judge’s office should be the substitiute either. If he’s married, let the spouse stay in a hotel at her expense. No access should be allowed by either of them to their house, just as would happen if they had lost it to a foreclosure.

      Do you think the judges in this country would stop being the bankster’s patsies if this happened to a few of their cronies?

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