DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BANK OF AMERICA, N.A.,

Appellant,

v.

MICHAEL N. FOGEL and RITA FOGEL,

Appellees.

No. 4D14-4518

[May 18, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Timothy J. McCarthy, Judge; L.T. Case No. 

502009CA017406XXXXMB.

Morgan L. Weinstein of Van Ness Law Firm, P.A., Deerfield Beach, for 

appellant.

James A. Burnham and E. Cole FitzGerald, III, of FitzGerald, Mayans 

& Cook, P.A., West Palm Beach, for appellees.

MAY, J.

Everything in life is timing. This is a simple case of due process. The 

bank appeals an order that vacated its foreclosure judgment. It argues 

that it was denied reasonable notice and an opportunity to be heard. We 

agree and reverse.

After the trial court entered a final judgment of foreclosure in favor of 

the bank, the borrowers moved for rehearing. Subsequently, on 

September 29, 2014, an attorney from Van Ness Law Firm, PLC filed a 

notice of appearance as co-counsel for the bank and designated its primary 

email address. Tripp Scott, P.A. represented the bank at trial. 

On October 15, 2014, the trial court issued a scheduling order and 

notice of hearing for October 20, 2014. The order required copies of 

documents and pleadings to be provided to the court five days prior to the 

hearing. The order indicated that copies were furnished by mail to 

attorneys at Tripp Scott’s address, an attorney at the borrowers’ counsel’s 

address, and a non-attorney at the Van Ness Law Firm.
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When the hearing occurred, no one appeared to represent the bank. 

The trial court asked the borrowers’ counsel if he knew where opposing 

counsel was. Counsel responded: 

I don’t know, Your Honor. I received an email when I set the 

hearing from the counsel that was here at trial that somebody 

else was taking over. I e-mailed that person and I sent them 

the same notice. I haven’t heard at all. I haven’t seen a notice 

of appearance. So I don’t think they are even in the case.

On October 21, 2014, the bank filed a stipulation to substitute its 

counsel from Tripp Scott to the Van Ness Law Firm. On October 24, 2014, 

the trial court vacated the final judgment and entered an amended final 

judgment for the borrowers. In its order, the court noted: “No one 

appeared for [the bank].” On October 28, 2014, the court entered an order 

allowing the bank’s counsel to be substituted from Tripp Scott to the Van 

Ness Law Firm. From the amended final judgment, the bank now appeals.

The bank argues the trial court denied it due process in entering the 

amended final judgment without providing it with sufficient notice and a 

meaningful opportunity to be heard. The court sent the scheduling order 

to a non-attorney at the Van Ness Law Firm. It also gave only four days’ 

notice of the hearing and required documents to be submitted five days 

before the hearing, which was temporally impossible. 

The borrowers respond that the bank waived its procedural due process 

argument because it did not make the argument at the trial court. It 

argues that Florida Rule of Judicial Administration 2.516(h) permits trial 

courts to send orders by mail. The hearing was not evidentiary and the 

bank’s inability to comply with parts of the order did not excuse it from 

appearing. The record established that both of the bank’s lawyers were 

served with the scheduling order.

The bank replies that it did not waive its due process argument. The 

borrowers’ interpretation of rule 2.516(h) is based on a misreading of the 

rule. Contrary to the borrowers’ arguments, the hearing was evidentiary. 

Any lack of record activity shows it lacked fair notice of the hearing. And 

even if it had received notice, it was still an insufficient time frame under 

current case law.

“We have de novo review of a trial court’s compliance with the 

guarantees of due process.” Flegal v. Guardianship of Swistock, 169 So. 

3d 278, 281 (Fla. 4th DCA 2015) (citation omitted).
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If a party’s due process rights are violated, the underlying final order is 

void. U.S. Bank Nat’l Ass’n v. Proenza, 157 So. 3d 1075, 1076 (Fla. 3d 

DCA 2015). “When due process is denied, fundamental error occurs.” 

Dep’t of Children & Families v. T.S., 154 So. 3d 1223, 1226 (Fla. 4th DCA 

2015) (citation omitted).

The trial court signed the scheduling order on October 14, 2014; it was 

filed on October 15, 2014. The order scheduled the hearing on October 

20, 2014, which gave four or five days between the scheduling order and 

the hearing date. The scheduling order was mailed to Tripp Scott, which 

was technically still record counsel, and the Van Ness Law Firm, which 

was also record counsel. Even if the bank was properly served with the 

notice immediately upon the court’s signing the order or upon filing the 

next day, the bank would not have been given sufficient notice.

Assuming it would take between one to two days for the order to arrive 

through the mail, counsel would have received the order on Friday the 

17th, with the hearing on Monday the 20th. This short time frame is a 

violation of due process. Torres v. One Stop Maint. & Mgmt., Inc., 178 So. 

3d 86, 89 (Fla. 4th DCA 2015). 

The short notice was also unreasonable given the trial court order 

anticipating an evidentiary hearing. “On a motion for a rehearing of 

matters heard without a jury . . . the court may open the judgment if one 

has been entered, take additional testimony, and enter a new judgment.”

Fla. R. Civ. P. 1.530(a). Here, the scheduling order noted: “Operative 

pleadings, Motions, Designation of Exhibits, Witnesses and copies of legal 

authority are to be physically delivered to all the parties and to Judge 

McCarthy’s chambers no later than five (5) business days before the 

hearing.” The order’s direction revealed that the hearing was of an 

evidentiary nature.

The bank did not appear at the hearing, the trial court vacated a final 

judgment in favor of the bank, and entered an amended final judgment in 

favor of the borrowers. The inadequate notice period between the 

scheduling order’s mailing and the hearing date violated the bank’s due 

process rights. 

We therefore reverse the amended final judgment and remand the case 

to the trial court for a properly noticed hearing on the borrowers’ motion 

with sufficient time for the bank to have a meaningful opportunity to be 

heard.
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Reversed and Remanded.

CIKLIN, C.J., and TAYLOR, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.