Keeter v. Bank of New York Mellon

Summary

The court affirmed a foreclosure judgment because the appellant’s arguments were not properly preserved, while stating that the affirmance was without prejudice to seeking relief under Florida Rule of Civil Procedure 1.540(b). The court also noted that the clerk improperly entered a default after the appellant had filed a motion and that the appellant lacked proper notice concerning unliquidated attorney’s fees.

Holdings

1. The foreclosure judgment was affirmed because the grounds raised on appeal were not properly preserved.
2. A clerk may not properly enter a default against a party who has already filed a motion in the action; the default and resulting judgment may be subject to being set aside upon proper application.
3. A defaulting party is entitled to notice of the hearing on unliquidated attorney's fees, and a judgment awarding such damages without the required notice may be void as to those damages.
4. The affirmance was without prejudice to Keeter filing a motion in the trial court seeking relief from the foreclosure judgment under Florida Rule of Civil Procedure 1.540(b).

Questions Presented

1. Whether the appeal should result in reversal when the asserted errors were not properly preserved.
2. Whether the clerk could properly enter a default after the defendant had filed a motion in the action.
3. Whether the defendant was entitled to notice of the hearing on unliquidated attorney's fees under Florida Rule of Civil Procedure 1.440(c).
4. Whether relief from the foreclosure judgment could be sought under Florida Rule of Civil Procedure 1.540(b).

Disposition

affirmed