       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 31, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2905
                         Lower Tribunal No. 13-11553
                             ________________


                       Wilmington Trust, N.A., etc.,
                                    Appellant,

                                        vs.

                       Carlton A. Whyte etc., et al.,
                                    Appellees.


      An appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

     Pearson Bitman LLP and Ronnie J. Bitman, Morgan W. Bates, and Briana
K. Huffer (Maitland), for appellant.

     No appearance for appellees.


Before SUAREZ, C.J., and WELLS and SALTER, JJ.

     SUAREZ, C.J.

     Wilmington Trust, N.A., as Trustee, for the Benefit of Registered Holders of

Structured Asset Mortgage Investments II Trust 2007-AR1, Mortgage Pass-
Through Certificates, Series 2007-AR1 (“Trustee”) appeals the denial of its Motion

to Vacate Order Dismissing Case. We reverse.

         Trustee filed a foreclosure action against Appellees Carlton A. Whyte and

Diana Whyte1 in 2013. The matter was set for trial in February 2015, but trial was

delayed because Appellees filed a Suggestion of Bankruptcy. After the bankruptcy

was dismissed the Trustee re-noticed the matter for trial. The trial court entered an

Order re-setting the matter, but due to an electronic filing error within the Trustee’s

counsel’s computer system, counsel did not receive the notice. When the Trustee’s

counsel did not appear at the time of trial, the trial court dismissed the foreclosure

action. Upon later learning of the dismissal, the Trustee moved to vacate the

dismissal arguing excusable neglect. After hearing, the trial court denied the

motion.

         We believe the trial court abused its discretion in doing so. As has been

explained in many cases, “[e]xcusable neglect is found where inaction results from

clerical or secretarial error, [] a system gone awry or any other of the foibles to

which human error is heir.” Elliot v. Aurora Loan Servs., LLC, 31 So. 3d 304, 307

(Fla. 4th DCA 2010). See also, Ocwen Loan Servicing, LLC v. Brogdon, 185 So.

3d 627, 619 (Fla. 5th DCA 2015) and Edwards v. Najjar, 748 So. 3d 1101, 1103

(Fla. 3d DCA 2000). In this case, the Trustee provided undisputed evidence that,

due to a problem with its counsel’s computer system, counsel did not actually

1   Appellees did not file any briefs in this action.
                                              2
receive the notice for trial.    Courts have consistently held that such error

constitutes excusable neglect under Florida Rule of Civil Procedure 1.540(b)(1)

and the trial court abused its discretion in not finding that excusable neglect was

shown in this case. Accordingly, we reverse the trial court’s order dismissing the

case and remand for further proceedings.

      Reversed and remanded for further proceedings.




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