Opinion
No. 1D18-1594
06-11-2020
Richard GARRISON, Appellant, v. PHH MORTGAGE CORPORATION, Appellee.
James H. Cerveny, Gainesville, for Appellant. Ileen J. Cantor and Ronald M. Gache of Shapiro, Fishman & Gache, LLP, Boca Raton, for Appellee.
James H. Cerveny, Gainesville, for Appellant.
Ileen J. Cantor and Ronald M. Gache of Shapiro, Fishman & Gache, LLP, Boca Raton, for Appellee.
Jay, J.
In this mortgage foreclosure case, the pertinent facts are relatively straightforward. A case management conference was conducted by a general magistrate on August 18, 2017. The resulting case management report references an earlier order that gave Appellant thirty days to file an answer. The report also reflects that Appellant failed to comply with the thirty-day deadline. Because of the failure to timely respond, the report states that a default was "immediately" issued on July 7, 2017, three days before the answer was filed. A later report confirms the issuance of the default calling it "immediate[ ] and automatic[ ]," and making it retroactive to the July 7 deadline. After a non-jury trial—where Appellant offered no defense nor advanced any motion for default relief—a final judgment of foreclosure was entered against Appellant. It is undisputed that Appellant was never served with a "notice of the application for default."
" Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, ‘that party must be served with notice of the application for default.’ " Turan v. Nationstar Mortg., LLC , 245 So. 3d 959, 959 (Fla. 5th DCA 2018). Thus, "a trial court reversibly errs if it enters a judicial default without providing the required notice to the defendant[.]" Black Point Assets, Inc., Tr. of 2237 Thornbrook Drive Land Tr. v. Ocwen Loan Serving, LLC , 285 So. 3d 389, 390 (Fla. 1st DCA 2019) (citations omitted). "A violation of rule 1.500(b) warrants the setting aside of a default without consideration of whether or not a meritorious defense was presented or whether excusable neglect was established." Id. (citation omitted).
That being said, as the trial court aptly found in its March 2018 Order Adopting Report and Recommendation of the General Magistrate, "the period for filing exceptions has expired and no exceptions have been filed." In fact, no exceptions were ever filed to any of the reports and recommendations: not to the initial report pronouncing a potential default related to the failure to timely respond to the complaint; not to the ensuing August 2017 report recommending the imposition of a retroactive default due to the belatedness of Appellant's answer; and, finally, not to the January 2018 report acknowledging the default and its unfavorable consequences to Appellant's ability to defend against the foreclosure complaint. All three of the reports and recommendations were ratified and adopted by the trial court without a single exception having been filed.
Florida Rule of Civil Procedure 1.491(e) governs residential mortgage foreclosure matters and states that "[t]he provisions for the requirement of the magistrate's report in rule 1.490(h) shall apply[.]" Rule 1.490(h) mandates that the magistrate's report contain language "in bold type" advising the parties that if they intend to seek review of the report and recommendation, they "must file exceptions" in accordance with rule 1.490(i). (Emphasis added.) The latter rule allots the parties ten days within which to file exceptions. The consequence of not filing exceptions is a failure to preserve the issue for appellate review. See Judy v. Judy , 291 So. 3d 651, 652 & 652 n.1 (Fla. 2d DCA 2020) (refusing to address issues that "were not properly preserved for appellate review" by virtue of the failure to file exceptions directed to the objectionable portions of the general magistrate's report as mandated by Fla. Fam. L. R. P. 12.490(f) ); Adkison v. Morey , 239 So. 3d 205, 207 (Fla. 1st DCA 2018) ("It is not our function ‘to entertain for the first time on appeal, issues which the complaining party could have, and should have, but did not, present to the trial court.’ ... Because the argument made on appeal was never presented to the trial court, it is waived." (citations omitted)); Bruce J. Berman & Peter D. Webster, 4 West's Fla. Prac., Civil Procedure § 1.490:10 (April 2020) ("[I]n light of the party's burden to present a record of the proceedings before the magistrate to the trial court, it is difficult to envision how a record sufficient to show harmful error on appeal could exist if the appellant did not file exceptions and provide a record to support them.").
Accordingly, while the magistrate's automatic default language violated the requirements of the default rule, see Turan , 245 So. 3d at 959, Appellant's failure to file exceptions waived the magistrate's error. Thus, the default issue was not preserved for our review. For this reason, we affirm the Final Judgment of Foreclosure.
AFFIRMED .
Bilbrey and M.K. Thomas, JJ., concur.