Barrnunn, LLC v. Talmer Bank & Trust

• Decision Date: 01 February 2013
• Docket Number: No. 2D12–446.,2D12–446.
• Citation: 106 So.3d 51
• Parties: BARRNUNN, LLC, a Florida limited liability company, Appellant, v. TALMER BANK AND TRUST; The Foundation of Pelican March, Inc., a Florida corporation not-for-profit; Vanderbilt Galleria Condominium Association, Inc., a Florida corporation not-for-profit; and John Scot Mueller, an individual, Appellees.
• Court: Florida District Court of Appeals

106 So.3d 51

BARRNUNN, LLC, a Florida limited liability company, Appellant,

v.TALMER BANK AND TRUST; The Foundation of Pelican March, Inc., a Florida corporation not-for-profit; Vanderbilt Galleria Condominium Association, Inc., a Florida corporation not-for-profit; and John Scot Mueller, an individual, Appellees.

No. 2D12–446.

District Court of Appeal of Florida, Second District.

Feb. 1, 2013.

Sonia M. Diaz and William J. Hazzard of Coleman, Hazzard, & Taylor, P.A., for Appellant.

John C. Clough of Akerman Senterfitt, Naples; and Joseph E. Foster and E. Ginnette Childs of Akerman Senterfitt, Orlando, for Appellee Talmer Bank & Trust.

No appearance for remaining Appellees.

KHOUZAM, Judge.

BarrNunn, LLC, appeals a final judgment of foreclosure entered in favor of Talmer Bank and Trust. Because the trial court entered final judgment without complying with section 702.10(1), Florida Statutes (2011), we reverse and remand for further proceedings.

The facts are undisputed. On August 15, 2011, Talmer filed a complaint against BarrNunn and others seeking to foreclose on a mortgage. On the same day, Talmer filed a motion pursuant to section 702.10(1) requesting that the trial court enter an order to show cause why a final judgment of foreclosure should not be entered. Three days later, the court entered the show cause order and scheduled a hearing for October 5, 2011. On September 30, 2011, BarrNunn and another defendant filed a lengthy motion to dismiss the complaint. The motion raised a number of issues, including that allegations in the complaint were contradicted by the exhibits attached to the complaint.

Following the October 5 hearing, the trial court entered a final judgment of foreclosure on January 11, 2012. Although no transcript of the hearing exists, the judgment includes the following finding of fact:

During the hearing time reserved for the Order to Show Cause, the Court reviewed the Defendants' timely-filed Motion to Dismiss, [and] found that it did not present any meritorious defenses to the count for foreclosure of real property and that the Defendants were not entitled to file an Answer and Affirmative Defenses to that count[.]

BarrNunn timely appealed, arguing that the trial court erred by entering final judgment after the show cause hearing where the defendants had timely filed a motion to dismiss.

There are no Florida cases that interpret the current version of section 702.10(1) as applied to the issue presented here. Because the material facts are undisputed, the issue before this court is one of statutory interpretation and is subject to de novo review. Borden v. East–European Ins. Co., 921 So.2d 587, 591 (Fla.2006). Although in many cases the lack of a transcript of the lower court proceedings prevents the appellant from demonstrating reversible error, see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979), “the absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment,” Chirino v. Chirino, 710 So.2d 696, 697 (Fla. 2d DCA 1998).

Section 702.10(1) provides that a mortgagee in a foreclosure proceeding may move the court for an order to show cause for the entry of final judgment. Upon such a request, “the court shall immediately review the complaint” and must issue the order if the complaint is verified and alleges a cause of action to foreclose on real property. Id. The order to show cause must set a date and time for a hearing on the matter, which shall be held no later than 60 days after the date of service of the order. § 702.10(1)(a)(1). The order must also “[s]tate that, if the defendant files defenses by a motion, the hearing time may be used to hear the defendant's motion.” § 702.10(1)(a)(5).

Section 702.10(1) continues:

(b) The right to be heard at the hearing to show cause is waived if the 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 or to appear at the hearing duly scheduled on the order to show cause presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard. If a defendant files defenses by a motion or by a verified or sworn answer at or before the hearing, such action constitutes cause and precludes the entry of a final judgment at the hearing to show cause.

....

(d) If the court finds that the defendant has waived the right to be heard as provided in paragraph (b), the court shall promptly enter a final judgment of foreclosure. If the court finds that the defendant has not waived the right to be heard on the order to show cause, the court shall then determine whether there is cause not to enter a final judgment of foreclosure. If the court finds that the defendant has not shown cause, the court shall promptly enter a judgment of foreclosure.

(Emphases added.)

Section 702.10(1) thus contemplates a procedure to expedite the portion of mortgage foreclosure cases that are not materially defended. Through this statute, a mortgagee can accelerate a foreclosure case by moving the court to conduct a hearing to show cause and, if no cause is...