Opinion
No. 90-2834.
August 13, 1991. Rehearing Denied September 9, 1991.
Appeal from the Circuit Court, Dade County, Jon I. Gordon, J.
Lydia P. Hernandez, Hialeah, for appellant.
Cesar M. De La Puente, Miami, for appellee.
Before SCHWARTZ, C.J., and FERGUSON and GODERICH, JJ.
The order denying the appellants' motion to set aside a default order is affirmed on the authority of Picchi v. Barnett Bank, 521 So.2d 1090 (Fla. 1988).
Florida Rule of Civil Procedure 1.500(b) permits the court to enter a default against a defendant who has failed to plead or defend an action, even where the defendant has filed or served a paper, provided that the party seeking the default has served the defendant with notice of the application for default.
In this case the Mondejas were served with the complaint for foreclosure but failed to file a responsive pleading within twenty days as required by the rule. The mortgagee then served the Mondejas with the motion for default. Appellants' attorney subsequently filed a notice of appearance but did not submit a pleading or raise a defense to the action. Without notice of the hearing, a default was entered.
In Picchi v. Barnett Bank, 521 So.2d 1090 (Fla. 1988), the court held that when notice of appearance has been filed, rule 1.500(b) requires the plaintiff to give notice of the motion for default, but not notice of the hearing on the motion. The trial court, therefore, correctly denied the appellants' motion to vacate the default.
Affirmed.