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

TOM SANSBURY AND DONNA SANSBURY,

Appellants, 

v. Case No. 5D15-1956

WELLS FARGO BANK, N.A.,

Appellee.

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Opinion filed December 9, 2016

Appeal from the Circuit Court 

for Orange County,

Charles M. Holcomb, Judge.

Adam H. Sudbury, of Apellie Legal, 

Orlando, for Appellant.

Linda Spaulding White, of Broad and 

Cassel, Fort Lauderdale, for Appellee.

PALMER, J.

Tom and Donna Sansbury (the borrowers) appeal the final foreclosure judgment 

entered by the trial court in favor of Wells Fargo Bank (the lender). Because the trial court 

erred in entering a judicial default while the borrowers' motion to dismiss the complaint

was pending, we reverse.

The lender filed an amended complaint against the borrowers seeking to foreclose 

on a mortgage. The borrowers filed a motion to extend time for filing a responsive 
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pleading, and the lender filed a motion seeking the entry of a judicial default. The trial 

court entered an order granting the borrowers a twenty-day extension of time for filing a 

response. After the twenty-day extension period expired, the lender filed a second motion 

for entry of a judicial default. The matter was set for a hearing. On the day of the hearing, 

at 1:30 in the morning, the borrowers e-filed a "Motion to Dismiss or for Sanctions." The 

matter proceeded to a hearing that same day, and the trial court entered a judicial default 

in spite of the pending motion to dismiss, concluding that the entry of a judicial default 

was warranted because the dismissal motion was filed beyond the date granted to the 

borrowers on their earlier-filed motion for an extension of time.

The borrowers contend that the judicial default must be reversed because their

motion to dismiss was pending at the time that the trial court entered the default. See Fla. 

R. Civ. P. 1.500(c) (providing that a "party may plead or otherwise defend at any time 

before default is entered"). We agree.

In Thompson v. Hancock Bank, 158 So. 3d 613 (Fla. 5th DCA 2013), the borrowers 

appealed a default judgment, arguing that the trial court erred in entering the default order

because they had filed an answer and affirmative defenses prior to the entry of the default. 

The trial court concluded that the entry of a default order was authorized because the 

borrowers failed to file their answer and affirmative defenses within the thirty-day window 

prescribed by the court's earlier order. In reversing the default judgment, we explained: 

Florida Rule of Civil Procedure 1.500(c) provides that a party 

“may plead or otherwise defend at any time before default is 

entered.” This court has previously held that a default must be 

set aside if a responsive pleading has been served prior to the 

entry of default. See Nants v. Faria, 553 So. 2d 369 (Fla. 5th 

DCA 1989); Nasrallah v. Smith, 538 So. 2d 554 (Fla. 5th DCA 

1989). Hancock argues that Nants and Nasrallah are 

distinguishable because in those cases the defendants' 
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belated response to a complaint was not in contravention of a 

court order. However, the application of rule 1.500 precludes 

the entry of default when a defendant's answer is served prior 

to entry of default even where it is not filed within the time 

granted by the trial court upon the denial of a motion to 

dismiss . . . . We believe that our decision is consistent both 

with the express language of rule 1.500(c) and with Florida's 

well established preference for lawsuits to be determined on 

the merits rather than by default judgment. 

Id. at 614–15. See also Drake v. Pub. Health Tr. of Dade Cty., 832 So. 2d 172 (Fla. 3d 

DCA 2002) (ruling that, based on the fact that the appellant filed a response to the 

complaint prior to the hearing on the plaintiff's motion for default, both the default against 

the appellant and the default final judgment were improvidently granted); Lenhal Realty 

Inc. v. Transamerica Commercial Fin. Corp., 611 So. 2d 79 (Fla. 4th DCA 1992) (holding 

that the entry of default was error where defendants filed a motion to dismiss the 

complaint before the default had been entered); Carder v. Pelican Cove W. Homeowners 

Ass'n, Inc., 595 So. 2d 174 (Fla. 5th DCA 1992) (holding that the filing of the motion to 

dismiss for the failure to state a cause of action precluded any subsequent entry of 

default).

Accordingly, the trial court erred by entering the judicial default while the borrowers' 

dismissal motion was pending.

REVERSED and REMANDED.

SAWAYA and COHEN, JJ., concur.