Opinion
No. 1D15–0166.
05-25-2016
Judy Ann Jean KEETER, Appellant, v. The BANK OF NEW YORK MELLON fka The Bank of New York, as Trustee for the Certificateholders of Cwalt, Inc., Alternative Loan Trust 2006–OA11, Mortgage Pass–Through Certificates, Series 2006–OA11, Appellee.
Judy Ann Jean Keeter, pro se, Appellant. Brian K. Hole and Katherine M. Joffe of Holland & Knight, LLP, Fort Lauderdale, for Appellee.
Judy Ann Jean Keeter, pro se, Appellant.
Brian K. Hole and Katherine M. Joffe of Holland & Knight, LLP, Fort Lauderdale, for Appellee.
Opinion
PER CURIAM.
In this appeal from a final judgment of foreclosure, appellant seeks reversal of the judgment on a number of grounds. Although we affirm due to the lack of proper preservation, our affirmance is without prejudice to appellant filing in the trial court a motion seeking relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). See Torres v. One Stop Maint. & Mgmt., Inc., 178 So.3d 86 (Fla. 4th DCA 2015) ; Stephens v. Bank of N.Y., 765 So.2d 294 (Fla. 1st DCA 2000) ; Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980) ; Straughn v. G.J.M., Inc., 372 So.2d 1163 (Fla. 1st DCA 1979). Appellant correctly notes that the clerk could not enter a default against her when she had filed a motion the previous day. See Stuart–Findlay v. Bank of Am., N.A., 183 So.3d 468, 471 (Fla. 4th DCA 2016) (holding that when a party has served any paper in the action, a default entered by the clerk is erroneous and upon proper application by such party, the default and final judgment consequent thereon should be set aside). In addition, appellant did not receive proper notice of hearing pursuant to Florida Rule of Civil Procedure 1.440(c) where unliquidated damages in the form of attorney's fees were awarded to appellee. See Ciprian–Escapa v. City of Orlando, 172 So.3d 485, 488 (Fla. 5th DCA 2015) (holding that a judgment rendered without a trial and without notice to the defaulting party is void as to any unliquidated damages and may be collaterally attacked at any time); Asian Imports, Inc. v. Pepe, 633 So.2d 551, 553 (Fla. 1st DCA 1994) (holding that the defaulting mortgagor was entitled to a notice of hearing on the issue of attorney's fees).
AFFIRMED.
THOMAS, WINOKUR, and JAY, JJ., concur.