                Case: 14-15783        Date Filed: 02/03/2016      Page: 1 of 6


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                 Nos. 14-15783; 15-11637
                               ________________________

                      D.C. Docket No. 8:14-cv-01628-EAK-MAP

NELSON CONIGLIO,
JOYCE CONIGLIO,
husband and wife,

                                                                   Plaintiffs-Appellees,

                                              versus

BANK OF AMERICA, NA,
a foreign corporation
f.k.a. BAC Homes Loans Servicing, LP,

                                                                   Defendant-Appellant.
                               ________________________

                      Appeals from the United States District Court
                           for the Middle District of Florida
                             ________________________


                                     (February 3, 2016)


Before TJOFLAT and ROSENBAUM, Circuit Judges, and RESTANI, * Judge.


       *
          Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
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PER CURIAM:

       Bank of America, NA (“BOA”) appeals the district court’s denial of its

motions to vacate or alter and amend a $1,051,000 default judgment entered

against it. BOA argues that its failure to respond to the complaint filed by Nelson

and Joyce Coniglio (“the Coniglios”) was due to excusable neglect and as such the

district court abused its discretion in failing to vacate the default judgment. After

careful consideration and with the benefit of oral argument, we vacate and remand.

                                  I.      BACKGROUND

       In July 2014, the Coniglios sued their mortgage company, BOA, asserting

violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), 1 the

Florida Consumer Collection Practices Act (“FCCPA”), 2 and the Fair Debt

Collection Practices Act. The Coniglios properly served the complaint on BOA on

July 10, 2014. BOA failed to respond to the complaint and the Coniglios

successfully moved for an entry of default. The Coniglios subsequently filed for a

default judgment, which the district court granted on October 21, 2014, in the

1
  The TCPA makes it unlawful to call a cellular telephone without prior consent using an
automatic telephone dialing system or an artificial or prerecorded voice. 47 U.S.C. § 227(b)(1)
(2012). The statute provides for damages in the form of either actual monetary loss or $500 per
violation, whichever is greater. Id. § 227(b)(3). If the TCPA is violated willfully or knowingly,
a court may, in its discretion, award not more than three times the statutory damages. Id. The
TCPA has a four-year statute of limitations. 28 U.S.C. § 1658(a).
2
 The FCCPA prohibits communication with a debtor in collecting consumer debts when the
party knows that the debtor is represented by an attorney. Fla. Stat. § 559.72(18). The statute
provides for actual damages, as well as statutory damages, not exceeding $1,000 plus court costs
and reasonable attorney fees. Id. § 559.77(2).
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amount of $1,051,000. On November 5, 2014, BOA moved to vacate and set aside

the default judgment under Federal Rule of Civil Procedure 60(b)(1), and on

November 10, 2014, BOA filed a corrected version of the same motion, which

included call records between BOA and the Coniglios. On November 18, 2014,

BOA filed a Rule 59(e) motion to alter or amend the district court’s order. The

district court denied both motions on December 4, 2014, and on March 20, 2014,

denied a second Rule 59(e) motion. The court has jurisdiction under 28 U.S.C.

§ 1291.

                                II.    DISCUSSION

      The court reviews for abuse of discretion the district court’s denial of BOA’s

Rule 60(b)(1) motion to vacate or set aside the default judgment. Cheney v.

Anchor Glass Container Corp., 71 F.3d 848, 849 n.2 (11th Cir. 1996). The district

court abuses its discretion when it uses the incorrect legal standard, applies the law

incorrectly, follows the wrong procedure, or commits clearly erroneous findings of

fact. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th

Cir. 2006).

      The court may relieve a party from a default judgment based on mistake,

inadvertence, surprise, excusable neglect, or any other reason that justifies relief.

Fed. R. Civ. P. 60(b)(1)–(6). To establish mistake, inadvertence, or excusable

neglect, the defaulting party must show that “(1) it had a meritorious defense that


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might have affected the outcome; (2) granting the motion would not result in

prejudice to the non-defaulting party; and (3) a good reason existed for failing to

reply to the complaint.” In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295

(11th Cir. 2003) (quoting Fla. Physician’s Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th

Cir. 1993)). In Pioneer Investment Services Co. v. Brunswick Associates Ltd.

Partnership, the Supreme Court categorized the excusable neglect inquiry as an

equitable one and identified four factors pertinent to the analysis: “the danger of

prejudice to the [opposing party], the length of the delay and its potential impact on

judicial proceedings, the reason for the delay, including whether it was within the

reasonable control of the movant, and whether the movant acted in good faith.”

507 U.S. 380, 395 (1993).3 The Supreme Court held that excusable neglect

encompasses situations of negligence within the defaulting party’s control and

placed primary importance on the prejudice prong of the analysis. Id. at 388, 394,

397–99.

       Here, the equities favor BOA. First, the district court correctly determined

that the Coniglios would not be prejudiced. The Coniglios’ arguments that they

would now be prejudiced are without merit; simple delay is insufficient for

prejudice as is requiring a party to prove its case on the merits. Second, the length

of delay was small; BOA moved to set aside the default judgment mere days after

3
 Although Pioneer concerned the interpretation of a bankruptcy rule, the court analyzed the
same language in the Rule 60(b) context in reaching its decision. Id. at 393.
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its entry. Third, the reason for delay was an administrative failure. Contrary to the

Coniglios’ assertions that BOA had no procedures in place, BOA had established a

robust system to effectively handle the significant number of legal filings it

receives. That the system failed in this case, or was later changed, does not equate

to the complete lack of procedures previously held to be insufficient grounds for

remand and is similar to prior cases where the court has remanded based on

excusable neglect. See Walter v. Blue Cross & Blue Shield United of Wis., 181

F.3d 1198, 1200, 1202 (11th Cir. 1999) (holding that an administrative failure to

record a deadline was excusable neglect); Cheney, 71 F.3d at 850 (holding that a

breakdown in communication amongst counsel was sufficient for remand); cf.

Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 935–36 (11th Cir. 2007). Finally,

BOA acted in good faith upon learning of the complaint and did not engage in bad

faith in misplacing the complaint.

      Further, BOA presented evidence of meritorious defenses to the Coniglios’

claims. The affidavits and call records BOA submitted with its corrected Rule

60(b)(1) motion are evidence that no calls were made to the Coniglios’ cell phones

during the relevant time period. BOA therefore presented evidence of a complete

defense to the TCCPA claim, namely that the alleged violations never occurred.

The district court thus incorrectly held that BOA’s asserted defense was a general

defense. With respect to the FCCPA claim, BOA also presents credible evidence


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that the Coniglios ignored BOA’s request for official authorization to speak with

their alleged attorney. This explanation could fit within the FCCPA’s bona fide

error defense4 and “might have affected the outcome.” In re Worldwide, 328 F.3d

at 1295.

       Thus, all of the equities weigh in favor of vacating the default judgment, and

the district court abused its discretion in denying the Rule 60(b)(1) motion.5 See

Walter, 181 F.3d at 1202; Cheney, 71 F.3d at 850.

                                   III.   CONCLUSION

       The district court abused its discretion in denying BOA’s Rule 60(b)(1)

motion to vacate the default judgment. Accordingly, we vacate the default and

default judgment and remand for further proceedings.

       VACATED and REMANDED.




4
  Under the bona fide error defense a debt collector is not liable if the violation was not
intentional, resulted from a bona fide error, and occurred despite the maintenance of procedures
reasonably adapted to avoid any such error. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1271 (11th
Cir. 2011); Edwards v. Niagara Credit Sols., Inc., 584 F.3d 1350, 1353 (11th Cir. 2009). The
cases cited analyze the standard under the Fair Debt Collection Practices Act, and the FCCPA
states that “due consideration and great weight” are to be given to federal court decisions
interpreting the Fair Debt Collection Practices Act. Fla. Sta. § 559.77(5).
5
  Because we hold that the district court should have vacated the default judgment, we need not
reach BOA’s alternative arguments in favor of altering or amending the default judgment.
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