IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MDTR LLC AS TRUSTEE UNDER 

THE 6161 SEQUOIA LAND TRUST 

DATED THIS 15TH DAY OF MAY 2014,

Appellant,

v. Case No. 5D15-4506

DEUTSCHE BANK NATIONAL TRUST 

COMPANY AS TRUSTEE FOR INDYMAC 

INDX MORTGAGE LOAN TRUST 2005-AR23

MORTGAGE PASS-THROUGH CERTIFICATES 

SERIES 2005-AR23, ET AL.,

Appellees.

________________________________/

Opinion filed June 9, 2017

Appeal from the Circuit Court 

for Volusia County,

William A. Parsons, Judge.

Isaac Manzo, and J. Randy Edmonson, of 

Manzo & Associates, PA, Orlando, for 

Appellant.

Kimberly S. Mello, and Danielle M. Diaz, of 

Greenberg Traurig, P.A., Tampa, for 

Deutsche Bank National Trust Company As 

Trustee For Indymac INDX Mortgage Loan 

Trust 2005-AR23 Mortgage Pass-Through 

Certificates Series 2005-AR23, Appellee.

No appearance for other Appellees. 

EDWARDS, J.
2

MDTR LLC (“MDTR”) appeals the trial court’s entry of final judgment of foreclosure 

in favor of Deutsche Bank National Trust Company (“Bank”). MDTR argues that the trial 

court erred in entering final judgment without a trial, purportedly pursuant to section 

702.10, Florida Statutes (2015), because MDTR timely interposed written defenses and 

properly requested trial on the issues of damages and priority of security positions. We 

agree. The final foreclosure judgment is reversed and the case remanded to the trial 

court for further proceedings. 

Bank filed a foreclosure complaint against MDTR and other defendants. The 

complaint alleged that Bank was the holder of the relevant promissory note, the note was 

in default for non-payment, and the note was secured by a mortgage on property allegedly 

owned by MDTR. 

Bank filed a motion for order to show cause for the accelerated entry of final 

judgment of foreclosure pursuant to section 702.10. That statute allows a lienholder to 

“request an order to show cause for the entry of final judgment in a foreclosure action.” 

§ 702.10(1), Fla. Stat. (2015). Upon filing of such a motion, “the court shall immediately 

review the request and the court file in chambers and without a hearing.” Id. If the court 

finds that the foreclosure complaint is verified and complies with statutory requirements, 

“the court shall promptly issue an order directed to the other parties named in the action 

to show cause why a final judgment of foreclosure should not be entered.” Id. Section 

702.10(1)(b) explains, 

The right to be heard at the hearing to show cause is waived 

if a defendant, after being served as provided by law with an 

order to show cause, engages in conduct that clearly shows 

that the defendant has relinquished the right to be heard on 

that order. The defendant’s failure to file defenses by a motion 

or by a sworn or verified answer, affidavits, or other papers or 
3

to appear personally or by way of an attorney at the hearing 

duly scheduled on the order to show cause presumptively 

constitutes conduct that clearly shows that the defendant has 

relinquished the right to be heard. If a defendant files defenses 

by a motion, a verified answer, affidavits, or other papers or 

presents evidence at or before the hearing which raise a 

genuine issue of material fact which would preclude entry of 

summary judgment or otherwise constitute a legal defense to 

foreclosure, such action constitutes cause and precludes the 

entry of a final judgment at the hearing to show cause.

Id. § 702.10(1)(b). Further, section 702.10(1)(d) states, 

If the court finds that all defendants have waived the right to 

be heard as provided in paragraph (b), the court shall 

promptly enter a final judgment of foreclosure without the 

need for further hearing if the plaintiff has shown entitlement 

to a final judgment and upon the filing with the court of the 

original note, satisfaction of the conditions for establishment 

of a lost note, or upon a showing to the court that the 

obligation to be foreclosed is not evidenced by a promissory 

note or other negotiable instrument. If the court finds that a 

defendant has not waived the right to be heard on the order 

to show cause, the court shall determine whether there is 

cause not to enter a final judgment of foreclosure. If the court 

finds that the defendant has not shown cause, the court shall 

promptly enter a judgment of foreclosure.

Id. § 702.10(1)(d). 

In response to Bank’s motion, the trial court scheduled a hearing date and issued 

an order to show cause, stating that the defendants, including MDTR, must appear at a 

hearing for foreclosure. In accordance with section 702.10, the order stated, 

The filing of defenses by a motion, a responsive pleading, an 

affidavit, or other papers before the hearing to show cause 

that raise a genuine issue of material fact which would 

preclude the entry of summary judgment or otherwise 

constitute a legal defense to foreclosure shall constitute cause 

for the court not to enter final judgment.
4

Several days before the scheduled hearing, MDTR filed an affidavit of one of its 

managers, who was also one of MDTR's attorneys, in opposition to entry of final 

judgment. The affidavit stated that “MDTR contests the amount of damages alleged in 

the Plaintiff’s Complaint as MDTR has not had the opportunity to review a full payment 

history of the account” and that “MDTR denies that its ownership interest is inferior to 

Plaintiff’s Mortgage until such time as Plaintiff proves as much by authentic, admissible 

evidence.” It also stated, “MDTR must be afforded the opportunity to conduct discovery 

in order to verify and potentially contest the amounts alleged due in Plaintiff’s Complaint 

and Plaintiff’s proposed Final Judgment.” 

Despite MDTR’s timely filed written defenses and attendance at the hearing, the 

trial court proceeded to enter a final judgment of foreclosure in favor of Bank at the 

conclusion of the show cause hearing. 

In BarrNunn, LLC v. Talmer Bank & Trust, 106 So. 3d 51 (Fla. 2d DCA 2013), the 

Second District Court of Appeal found that the trial court erred under similar 

circumstances by entering a final judgment after the defendant had timely filed written 

defenses. The Second District reversed the trial court’s entry of final judgment because 

“the clear and unambiguous language in subsection (b) . . . declares that the filing of 

defenses ‘constitutes cause and precludes the entry of a final judgment.’” BarrNunn, 106 

So. 3d at 54. It was likewise error here for the trial court to proceed to entry of final 

judgment in this case given that MDTR had filed an affidavit raising defenses. Both the 

statute and the trial court’s show cause order state that such action constitutes cause 

which precludes the entry of a final judgment. In addition to filing written defenses and 
5

objections to entry of a final judgment, MDTR attended the show cause hearing as 

scheduled.

Accordingly, we reverse the final judgment entered in favor of Bank and remand 

for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COHEN, C.J., and EVANDER, J., concur.