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NATIONAL ASSOC. AS TRUSTEE FOR ASSET-BACKED CERTIFICATES SERIES 2007-AC3, CIVIL DIVISION Plaintiff, Case No.: 2011-31530-CA-01 v. GREGORY BUTLER; et al. Defendants. __________________________/ DEFENDANT GREGORY BUTLERS MOTION TO VACATE ORDER OF DEFAULT DATED JUNE 14, 2012 PURSUANT TO RULE 1.540 COMES NOW, the Defendant, Gregory Butler, by and through the undersigned attorney and files this Motion To Vacate Order Of Default Dated June 14, 2012 Pursuant To Rule 1.540 and states: 1. On or about June 6, 2011, the Defendant, Gregory Butler hired Safeguard Homes to negotiate the satisfaction of the mortgage encumbering the subject property of this cause of action for a short sale with Wells Fargo. 2. The Defendant resides in Washington, D.C. 3. Subsequently, the Defendant was served by publication in the Miami Daily Business Review dated 3/14/12 and 3/21/12 and US Mail. 4. The Defendant informed Gregory Thomas, a licensed real estate agent participating in the negotiations with Plaintiff, Wells Fargo in the Defendants behalf, about the foreclosure lawsuit for direction as to responding. 5. Gregory Thomas assured the Defendant that the negotiations were moving forward and the matter would be resolved. 6. On or about June 18, 2012, the Defendant received a copy of the Order of Default and immediately contacted Mr. Gregory who referred this matter to the undersigned Attorney on or about June 22, 2012.

7. The court file was received on July 27, 2012 resulting in the drafting and filing of this Motion, supporting Affidavit and Motion to Dismiss in a reasonable and diligent manner. 8. The good faith belief in the attempted resolution of the indebtedness through short sale negotiation is the excusable reason the Defendant failed to respond to the service by publication. 9. The Note shows no endorsement unspecified or specifically to the Plaintiff evidencing ownership as alleged in the complaint or any third party, which constitutes a meritorious defense to the cause of action as set forth in the Motion to Dismiss. WHEREFORE, the Defendant respectfully requests this Honorable Court grant relief from the Order of Default entered on June 14, 2012. Respectfully submitted, Dated: July , 2012. ____________________________ Attorney for Defendant Casais & Prias, PLLC 444 Brickell Avenue, Suite 721 Miami, Florida 33131 (305) 722-8015 phone (305) 722-8016 fax


On September 27, 2012 the Plaintiff, filed a foreclosure and breach of contract action against Defendant due to nonpayment of the Note and Mortgage. Service was effectuated on the Defendant via publication on March 8, 2012. The Defendant failed to file a response as required by the 30 day Notice Of Action. The failure to respond to the summons and complaint was due to the Defendants belief that the company hired by him to negotiate a short sale with the Plaintiff corporation would resolve

the lawsuit and therefore no action was required by the Plaintiff as the agent was going to take care of all required actions. .

After the Court mailed the Order Of Default (6/18/2012) to the Defendants residence in Washington, DC, the Defendant took immediate action to contact the Real Estate Agent and hire counsel to defend the law suit (See attached affidavit Exhibit #1). The Defendants Motion to Dismiss is attached hereto (Exhibit # 2) as proof of a meritorious defense to this cause of action. II. SUMMARY OF THE ARGUMENT

According to Rules 1.500(d) and 1.540(b) of the Florida Rules of Civil Procedure relief from default and default final judgment may be granted as a result of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing, fraud, misrepresentation, misconduct of an adverse party, satisfaction, release, reversed vacated or void judgment, or that the judgment is no longer equitable.

In order to be successful to set aside an order of default a party must show that: 1) the failure to file a responsive pleading was the result of excusable neglect 2) the party has a meritorious defense, and 3) the party has been reasonably diligent in seeking to vacate the default after it was discovered. Johnson v. Johnson, 845 So.2d 217 (Fla. 2nd DCA 2003); Hunt Exterminating Co., Inc v. Crum, 598 So.2d 113 (Fla. 2nd DCA 1992); Ponderosa, Inc. v. Stephens, 549 So.2d 1162 (Fla. 2nd DCA 1989); Bland v. Viking Fire Protection Inc., 454 So.2d 763 (Fla 2nd DCA 1984).

Additionally, the Court has power to grant relief from a judgment entered on default which has been accurately summed up as follows: A default admits liability as claimed in the pleading by the party seeking affirmative relief against the party in default. It operates as an admission of the truth of the well pleaded allegations of the pleading, except those concerning damages. It does not admit facts not pleaded, not properly pleaded or conclusions of law. Fair inferences will be made from the pleadings, but forced inferences will not. The party seeking affirmative relief may not be granted relief that is not supported by the pleadings or by substantive law applicable

to the pleadings. A party in default may rely on these limitations. H. Trawick, Trawick's Florida Practice and Procedure 25-4 at 348 (1988 ed.) (footnotes omitted). See also North Am. Accident Ins. Co. v. Moreland, 60 Fla. 153, 53 So. 635 (1910) (conclusions of law, facts not well pleaded, and forced inferences are not admitted by a default judgment); Board of Regents v. StinsonHead, Inc., 504 So.2d 1374 (Fla. 4th DCA 1987) (party in default admits only the wellpleaded facts and acquiesces only in the relief sought by the pleading); ); Williams v. Williams, 227 So.2d 746 (Fla. 2d DCA 1969) (defendant who suffers default admits only well-pleaded facts and acquiesces only in the relief prayed for); Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (1984) (default judgment did not preclude defendant from challenging sufficiency of the complaint as a basis for the judgment). See generally 49 C.J.S. Judgments 200 at 356 (1947) (judgment by default operates as a waiver of any mere formal errors in plaintiff's pleading but does not cure a totally defective complaint or waive errors which go to the foundation of plaintiff's cause of action).

When a default judgment should be set aside where the complaint fails to state a cause of action, courts find it unnecessary to decide whether the defendant otherwise set forth good grounds for failing to respond to the complaint. Citing to Thompson v. Dildy, 227 Ark. 648, 300 S.W.2d 270 (1957). LEGAL ARGUMENT III. DUE DILIGENCE

It is well-established that issues of "due diligence" and "reasonable time," in common with all questions relating to the issue of whether defaults and default judgments should stand, must be evaluated in terms of the particular facts of the case under consideration. See Techvend, 564 So.2d at 1146 (Cope, J., specially concurring); Rosenblatt v. Rosenblatt, 528 So.2d 74, 76 (Fla. 4th DCA 1988); B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981); accord In re Cremidas' Estate, 14 Alaska 234, 14 F.R.D. 15 (D.Alaska 1953); Alston v. Philadelphia Elec. Co., 337 Pa.Super. 46, 486 A.2d 473 (1984); 7 J. Moore & J. Lucas, Moore's Federal Practice 60.28[2] (2d ed. 1990); 11 C. Wright & A. Miller, Federal Practice and Procedure 2866 (1973).

The Defendant, herein submits Exhibit 1, Affidavit In Support Of Motion To Vacate Default Judgment. IV. EXCUSABLE NEGLECT

"Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient." Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004); see also Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614, 614 (Fla. 4th DCA 2000). Legally sufficient affidavits in support of the motion to vacate must show excusable neglect by the defendant in failing to respond to the complaint. The failure to submit a legally sufficient affidavit is fatal to the motion to vacate. Sherer v. The Club, Inc., 328 So.2d 532 (Fla. 3d DCA), cert. dismissed, 334 So.2d 604 (Fla. 1976). The Defendant, herein submits Exhibit 1, Affidavit In Support Of Motion To Vacate Default Judgment. V. MERITORIOUS DEFENSE

To entitle the defendant to have the default set aside, in addition to a showing of excusable neglect, it was incumbent upon the defendant to show it had a meritorious defense, and a mere statement to that effect in an unsworn motion was not sufficient. The existence of a meritorious defense should be disclosed in tendering a defensive pleading showing the defense, or by a sworn motion or affidavit stating facts which if proved would be a meritorious defense, where a factual defense is relied on, or by showing legal grounds constituting a meritorious defense where a legal rather than a factual defense is to be relied on. See State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40, 42-43 (1931); Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So.2d 733, 735 (Fla. 1st DCA 1964); Butler v. Butler, 172 So.2d 899, 901 (Fla. 3d DCA 1965); Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974); Grimsely v. Florida Universal Financial Corp., 339 So.2d 721, 722 (Fla. 1st DCA 1976). The complaint fails to state a cause of action and fails to allege sufficient facts to establish that a cause of action upon which relief may be based.

The Plaintiff has filed a cause of action based upon its purchase of contractual obligations alleged between the Defendant and the seller of the written contract. The Plaintiff has failed to attach the written contract to the complaint which forms the basis of the obligation sued upon. Fla. R. Civ. P. 1.130(a) provides in pertinent part: All bonds, notes, bills of exchange, contracts, accounts or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. Attached here to is Defendants Motion to Dismiss for failure to state a cause of action. Primarily the Note is not endorsed to the Plaintiff. Therefore, the allegation of ownership is a legal impossibility without further statements alleged to set forth ownership of the Note.

The Plaintiff is without standing which is required to maintain a cause of action for foreclosure and /or breach of contract.

The Defendant, herein submits Exhibit 2, Motion to Dismiss for Failure to State a Cause of Action. WHEREFORE, the Defendant, respectfully requests this Honorable Court Vacate the Order Of Default dated June 14, 2012, based upon due diligence, excusable neglect and the showing of a meritorious defense and/or the failure of the Plaintiff to plead a legally sufficient cause of action.

______________________________ Attorney for Defendant Casais & Prias, PLLC 444 Brickell Avenue, Suite 721 Miami, Florida 33131 (305) 722-8015 phone (305) 722-8016 fax